On Nov. 6, 2017, at least 20 people trying to reach Europe from Libya drowned in the Mediterranean, foundering next to a sinking raft.
Not far from the raft was a ship belonging to Sea-Watch, a German humanitarian organization. That ship had enough space on it for everyone who had been aboard the raft. It could have brought them all to the safety of Europe, where they might have had a chance at being granted asylum.
Instead, 20 people drowned and 47 more were captured by the Libyan Coast Guard, which brought the migrants back to Libya, where they suffered abuse — including rape and torture.
This confrontation at sea was not a simplistic case of Europe versus Africa, with human rights and rescue on one side and chaos and danger on the other. Rather it’s a case of Europe versus Europe: of volunteers struggling to save lives being undercut by European Union policies that outsource border control responsibilities to the Libyan Coast Guard — with the aim of stemming arrivals on European shores.
While funding, equipping and directing the Libyan Coast Guard, European governments have stymied the activities of nongovernmental organizations like Sea-Watch, criminalizing them or impounding their ships, or turning away from ports ships carrying survivors.
More than 14,000 people have died or gone missing while trying to cross the central Mediterranean since 2014. But unlike most of those deaths and drownings, the incident on Nov. 6, 2017, was extensively documented.
Sea-Watch’s ship and rescue rafts were outfitted with nine cameras, documenting the entire scene in video and audio. The Libyans, too, filmed parts of the incident on their mobile phones.
The research groups Forensic Architecture and Forensic Oceanography of Goldsmiths, University of London, of which three of us — Mr. Heller, Mr. Pezzani and Mr. Weizman — are a part, combined these video sources with radio recordings, vessel tracking data, witness testimonies and newly obtained official sources to produce a minute-by-minute reconstruction of the facts. Opinion Video at The New York Times built on this work to create the above short documentary, gathering further testimonials by some of the survivors and rescuers who were there.
This investigation makes a few things clear: European governments are avoiding their legal and moral responsibilities to protect the human rights of people fleeing violence and economic desperation. More worrying, the Libyan Coast Guard partners that Europe is collaborating with are ready to blatantly violate those rights if it allows them to prevent migrants from crossing the sea.
To understand the cynicism of Europe’s policies in the Mediterranean, one must understand the legal context. According to a 2012 ruling by the European Court of Human Rights, migrants rescued by European civilian or military vessels must be taken to a safe port. Because of the chaotic political situation in Libya and well-documented human rights abuses in detention camps there, that means a European port, often in Italy or Malta.
But when the Libyan Coast Guard intercepts migrants, even outside Libyan territorial waters, as it did on Nov. 6, the Libyans take them back to detention camps in Libya, which is not subject to European Court of Human Rights jurisdiction.
For Italy — and Europe — this is an ideal situation. Europe is able to stop people from reaching its shores while washing its hands of any responsibility for their safety.
This policy can be traced back to February 2017, when Italy and the United Nations-supported Libyan Government of National Accord signed a “memorandum of understanding” that provided a framework for collaboration on development, to fight against “illegal immigration,” human trafficking and the smuggling of contraband. This agreement defines clearly the aim, “to stem the illegal migrants’ flows,” and committed Italy to provide “technical and technological support to the Libyan institutions in charge of the fight against illegal immigration.”
Libyan Coast Guard members have been trained by the European Union, and the Italian government donated or repaired several patrol boats and supported the establishment of a Libyan search-and-rescue zone. Libyan authorities have since attempted — in defiance of maritime law — to make that zone off-limits to nongovernmental organizations’ rescue vessels. Italian Navy ships, based in Tripoli, have coordinated Libyan Coast Guard efforts.
Before these arrangements, Libyan actors were able to intercept and return very few migrants leaving from Libyan shores. Now the Libyan Coast Guard is an efficient partner, having intercepted some 20,000 people in 2017 alone.
The Libyan Coast Guard is efficient when it comes to stopping migrants from reaching Europe. It’s not as good, however, at saving their lives, as the events of Nov. 6 show.
That morning the migrant raft had encountered worsening conditions after leaving Tripoli, Libya, over night. Someone onboard used a satellite phone to call the Italian Coast Guard for help.
Because the Italians were required by law to alert nearby vessels of the sinking raft, they alerted Sea-Watch to its approximate location. But they also requested the intervention of their Libyan counterparts.
The Libyan Coast Guard vessel that was sent to intervene on that morning, the Ras Jadir, was one of several that had been repaired by Italy and handed back to the Libyans in May of 2017. Eight of the 13 crew members onboard had received training from the European Union anti-smuggling naval program known as Operation Sophia.
Even so, the Libyans brought the Ras Jadir next to the migrants’ raft, rather than deploying a smaller rescue vessel, as professional rescuers do. This offered no hope of rescuing those who had already fallen overboard and only caused more chaos, during which at least five people died.
These deaths were not merely a result of a lack of professionalism. Some of the migrants who had been brought aboard the Ras Jadir were so afraid of their fate at the hands of the Libyans that they jumped back into the water to try to reach the European rescuers. As can be seen in the footage, members of the Libyan Coast Guard beat the remaining migrants.
Sea-Watch’s crew was also attacked by the Libyan Coast Guard, who threatened them and threw hard objects at them to keep them away. This eruption of violence was the result of a clash between the goals of rescue and interception, with the migrants caught in the middle desperately struggling for their lives.
Apart from those who died during this chaos, more than 15 people had already drowned in the time spent waiting for any rescue vessel to appear.
There was, however, no shortage of potential rescuers in the area: A Portuguese surveillance plane had located the migrants’ raft after its distress call. An Italian Navy helicopter and a French frigate were nearby and eventually offered some support during the rescue.
It’s possible that this French ship, deployed as part of Operation Sophia, could have reached the sinking vessel earlier, in time to save more lives — despite our requests, this information has not been disclosed to us. But it remained at a distance throughout the incident and while offering some support, notably refrained from taking migrants onboard who would then have had to have been disembarked on European soil. It’s an example of a hands-off approach that seeks to make Libyan intervention not only possible but also inevitable.
On the basis of the forensic reconstruction, the Global Legal Action Network and the Association for Juridical Studies on Immigration, with the support of Yale Law School students, have filed a case against Italy at the European Court of Human Rights representing 17 survivors of this incident.
Those working on the suit, who include two of us — Mr. Mann and Ms. Moreno-Lax — argue that even though Italian or European personnel did not physically intercept the migrants and bring them back to Libya, Italy exercised effective control over the Libyan Coast Guard through mutual agreements, support and on-the-ground coordination. Italy has entrusted the Libyans with a task that Rome knows full well would be illegal if undertaken directly: preventing migrants from seeking protection in Europe by impeding their flight and sending them back to a country where extreme violence and exploitation await.
We hope this legal complaint will lead the European court to rule that countries cannot subcontract their legal and humanitarian obligations to dubious partners, and that if they do, they retain responsibility for the resulting violations. Such a precedent would force the entire European Union to make sure its cooperation with partners like Libya does not end up denying refugees the right to seek asylum.
This case is especially important right now. In Italy’s elections in March, the far-right Lega party, which campaigned on radical anti-immigrant rhetoric, took nearly 20 percent of the vote. The party is now part of the governing coalition, of which its leader, Matteo Salvini, is the interior minister.
His government has doubled down on animosity toward migrants. In June, Italy took the drastic step of turning away a humanitarian vessel from the country’s ports and has been systematically blocking rescued migrants from being disembarked since then, even when they had been assisted by the Italian Coast Guard.
The Italian crackdown helps explain why seafarers off the Libyan coast have refrained from assisting migrants in distress, leaving them to drift for days. Under the new Italian government, a new batch of patrol boats has been handed over to the Libyan Coast Guard, and the rate of migrants being intercepted and brought back to Libya has increased. All this has made the crossing even more dangerous than before.
Italy has been seeking to enact a practice that blatantly violates the spirit of the Geneva Convention on refugees, which enshrines the right to seek asylum and prohibits sending people back to countries in which their lives are at risk. A judgment by the European Court sanctioning Italy for this practice would help prevent the outsourcing of border control and human rights violations that may prevent the world’s most disempowered populations from seeking protection and dignity.
The European Court of Human Rights cannot stand alone as a guardian of fundamental rights. Yet an insistence on its part to uphold the law would both reflect and bolster the movements seeking solidarity with migrants across Europe.
Charles Heller and Lorenzo Pezzani are co-founders of Forensic Oceanography, and Eyal Weizman is the director of Forensic Architecture, at Goldsmiths, University of London. Itamar Mann is a legal adviser to the Global Legal Action Network and an associate professor of law at the University of Haifa. Violeta Moreno-Lax is a legal adviser to the Global Legal Action Network and a senior lecturer in law at Queen Mary University of London.