Carmen Daniela Dan
Minister of Internal Affairs
Presidency of the Council of the European Union
6 March 2019
I am writing to you to share the proposals put forward by Amnesty International and Human Rights Watch to address the policy crisis in the Mediterranean, following the closure of Italian ports to rescue vessels. The document Plan of Action: Twenty steps for a fair and predictable rescue system in the Mediterranean Sea proposes collective and workable solutions to save human lives and set up a fair system to share responsibility for examining and processing claims of people seeking protection disembarked in European ports.
The scale of continuing incidents and loss of life in the Mediterranean Sea is unacceptable, and member states should be examining both the extent to which their policies contribute to endangering migrants’ lives and how they can save lives. Nor is it acceptable to willingly ignore the devastating consequences of enlisting the help of Libyan authorities in preventing arrivals to the EU in order to characterize EU-Libyan cooperation on migration as a success.
Recently, Amnesty International and Human Rights Watch have highlighted yet again how the EU’s approach, far from dismantling the business of human smugglers and traffickers, is contributing to a cycle of violence and abuse, as people intercepted by the Libyan Coast Guard – trained, equipped, funded and assisted by EU member states and institutions - are brought back to abysmal conditions in overcrowded and unsanitary detention centres where they are arbitrarily detained and exposed to torture, including rape and beatings sometimes inflicted to extract a ransom from their families. Despite this, the European Union and its member states have failed to reconsider their continuing assistance to the Libyan Coast Guard. Instead, they continue to commit material support, including vessels, to Libya, despite the lack of progress towards ending arbitrary detention and torture of people returned to Libya. As our recent research demonstrates, efforts by international agencies and even the opening by UNHCR of a Gathering and Departure Facility in Tripoli in December, have not resulted in systemic changes on the underlying level of abuses and violence.
At the same time, EU states have criticised the action of non-governmental rescue organisations, as reflected in the June 2018 European Council Conclusions. Some EU governments launched an unprecedented offensive against NGOs operating search and rescue vessels, thus driving them out of the Central Mediterranean and leaving no genuine ‘rescue’ capacity in place.
For the relatively few people that NGOs, states or commercial vessels have been able to rescue in the past eight months, the EU has offered a dismaying spectacle. The continuous political standoffs between governments forbidding or delaying disembarkation in their countries has left individuals in life-threatening conditions at sea for prolonged periods in a clear dereliction of the legal and moral duty to ensure prompt disembarkation in a place of safety. The fact that some EU governments eventually decided to allow disembarkation or receive those disembarked is certainly a relief. However, standoffs are likely to continue until a predictable and sustainable solution is found that ensures prompt disembarkation of rescued persons, and fair support to countries of first arrival, in compliance with EU asylum standards throughout the reception and relocation process.
At a time of high levels of forced displacement globally, the EU should be open to protect and help those in need and refrain from pursuing approaches that legitimise the views of those who see migrants and refugees arriving to Europe only as a threat. Cracking down on irregular migration, without opening safe and regular routes for refugees and migrants, can only trap people in countries where they are exposed to human rights violations at the hands of unscrupulous authorities which the EU is enlisting as partners as a way of externalizing border controls.
We call on you to act with resolve against port closures and current standoffs which hinder responsibility-sharing arrangements, and to bring the EU’s external approach in line with EU law and obligations under international human rights and refugee law.
We enclose a list of actions which should form part of the effective, sustainable and human rights compliant solution we would like you to discuss and agree to.
Covadonga de la Campa
Interim head of European Institutions Office and Advocacy Director
Director, EU Advocacy
Human Rights Watch
March 6, 2019 EUR 01/9961/2019
PLAN OF ACTION: TWENTY STEPS FOR A FAIR AND PREDICTABLE RESCUE SYSTEM IN THE MEDITERRANEAN SEA
ACTION 1: Establish a temporary mechanism for predictable disembarkation and relocation
Against the backdrop of stalemate in the reform of the Dublin system, and drawing on recommendations put forward previously by the European Council for Refuges and Exiles (ECRE), Amnesty International and Human Rights Watch call on European governments to establish temporary arrangements for disembarking and relocating in Europe people rescued at sea, and make the following recommendations in this regard:
- Participation in the mechanism should be as wide as possible and should be decided from the outset rather than being declared on a ship-by-ship basis. Countries not intending to join the mechanism immediately, however, should be able to join later.
- There should be clear criteria for the determination of places of safety in Europe where people rescued at sea are to be promptly disembarked, consistent with international law and standards.
- EU and Schengen Associated States should agree on an equitable system of sharing responsibilities with respect to people disembarked in the form of relocation arrangements.
- While participating states may decide to offer relocation to asylum seekers only, eligibility of asylum seekers for relocation should not be subject to additional criteria such as nationality or presumed manifest well-foundedness of their protection claim or other criteria such as age, religion or gender. Any filtering system would impose an additional administrative burden on the asylum authorities in the landing countries and might potentially result in the discrimination against certain asylum seekers.
- Relocation arrangements should comply with the legal framework of the Common European Asylum System. This requires that individuals rescued and disembarked in the EU are immediately informed of the possibility to apply for international protection, are promptly granted access to an asylum procedure and to adequate reception conditions and are ensured appropriate solutions if they belong to specific groups such as unaccompanied minors or victims of torture, sexual violence or trafficking.
- There should be no automatic or otherwise unlawful detention of people disembarked. Detention should be used only as necessary and proportional on a case-by-case basis for the shortest time possible.
- Transfers should be carried out in accordance with the Dublin Regulation. States should safeguard the primacy of family unity and submit requests under the humanitarian clause for those not entitled to family reunification under the Regulation. Participating countries should commit to accepting humanitarian clause requests issued by the member state of disembarkation, unless the number of persons requested for relocation exceeds the allocation share of the receiving country.
- The allocation share should be based on objective criteria (e.g. GDP and population size) and should be defined at the outset between participating member states and Schengen Associated States to avoid unpredictable and time-consuming processes of pledging during individual search and rescue operations.
- Arrangements should be in force for a specified period and be renewable until a reform of the Dublin system is agreed.
ACTION 2: Ensure proactive search and rescue operations in the Mediterranean
Amnesty International and Human Rights Watch recommend that EU institutions and member states ensure and enable robust search and rescue operations in the central Mediterranean. In particular, EU states and institutions should:
- Ensure that an adequate number of vessels with search and rescue as their primary purpose are deployed along the routes taken by boats carrying refugees and migrants for as long as departures of refugees and migrants continue.
- Refrain from penalizing shipmasters for assisting people in distress at sea, minimize any economic loss for private shipmasters engaging in search and rescue operations, and ensure that any vessels in such situation are promptly granted a place of safety where survivors can disembark and receive adequate assistance.
- Ensure that NGOs can continue to contribute to rescuing refugees and migrants at sea, in compliance with relevant international law and standards, and that, in line with the UN Declaration on Human Rights Defenders, they can operate in a safe and enabling environment.
- Issue clear guidelines to shipmasters to prevent the disembarkation of any people rescued at sea in countries – such as Libya – that cannot be regarded as places of safety.
- Limit any cooperation with the Libyan Coast Guard, until such time as they treat people intercepted humanely and do not send them back to detention and abuse, to cases where their intervention is essential to prevent immediate loss of life and make it conditional on measures to mitigate against the risks of disembarkation in Libya, including by asking that the Libyan Coast Guard limit their search and rescue activities to Libyan waters except when their vessels are able most quickly to respond to a vessel in distress in international waters; allow search and rescue operations by civilian vessels, including boats operated by NGOs, to take place unhindered; and refrain from instructing them to disembark in Libya those they have rescued or to transfer them onto Libyan ships.
- Ensure robust monitoring of the Libyan Coast Guard conduct and operations at sea, and an accountability process in case of breaches of international law.
ACTION 3: Protect migrants and refugees’ rights in migration-related cooperation with Libya
As European governments engage with Libyan authorities, emphasis should be geared towards promoting the protection of rights, including those of refugees and migrants. Amnesty International and Human Rights Watch recommend that EU governments and institutions make continuing cooperation with the Libyan authorities conditional on concrete and verifiable steps towards:
- The prompt release of all refugees and migrants being arbitrarily detained in Libya, and the end of the system of automatic, indefinite detention.
- The full and formal recognition of the United Nations Refugee Agency, UNHCR, in the form of a memorandum of understanding that guarantees the organization’s full access to people of concern across the country and the possibility to carry out its full mandate, irrespective of the nationality of beneficiaries.
- The signing and ratification of the 1951 Refugee Convention and its 1967 Protocol and adoption and enactment of new legislation, policies and procedures on migration and asylum, providing for the decriminalization of irregular entry, stay and exit; an end to automatic detention; and the creation of an asylum system that complies with international standards.
- The establishment of independent, impartial, and transparent monitoring of human rights violations against refugees and migrants in Libya, with the aim to ensure accountability for state and non-state actors.
ACTION 4: Commit to global responsibility sharing and to facilitating regular migration pathways
In accordance with the 2016 Global Strategy for the EU’s Foreign and Security Policy, Amnesty International and Human Rights Watch call on EU states and institutions to:
- Step up efforts to implement and increase resettlement pledges and open alternative pathways to protection to people in need of international protection – including for the thousands stranded in Libya – and commit to reviewing migration policies with a view to facilitate regular pathways for would-be migrants.
 See ECRE’s Proposal for a predictable and fair relocation arrangement following disembarkation, January 2019
 These proposals reflect and endorse recommendations previously made by the European Council for Refugees and Exiles (ECRE). See ECRE’s Proposal for a predictable and fair relocation arrangement following disembarkation, January 2019.
 Amnesty International, Cut adrift in the Mediterranean, January 2019.
 Human Rights Watch, No Escape From Hell, January 2019.
 See, in this respect, the 2016 EU Global Strategy, Shared Vision, Common Action: A Stronger Europe, p 27-28: “We must stem irregular flows by making returns more effective as well as by ensuring regular channels for human mobility. This means enhancing and implementing existing legal and circular channels for migration.”