memorandum by Ms Strik, rapporteurNote
– The deadliest year in the Mediterranean Sea
1 When we talk about the Mediterranean,
we are not talking about a deserted sea. On the contrary, we are
talking about a sea with a complex and dense network of maritime
traffic, with a developed system of monitoring movements and dealing
with boats in distress. During and in the aftermath of the Arab
Spring, and in the framework of NATO’s Operation Unified Protector
off the Libyan shores, the monitoring of the Mediterranean was,
if anything, even more closely monitored. During that period, it
was often referred to as the sea with the best surveillance in the
world and, as an Italian official rightly described it, “I expect
that sailing from Libya towards Italy should be a bit like doing
a slalom between military ships”.
2 Paradoxically, 2011 set a record for being one of the deadliest
years for boat people in the Mediterranean.
While we are aware of many tragedies in these waters, one
particular incident shocked the Parliamentary Assembly of the Council
of Europe to such an extent that it considered it essential to carry
out an inquiry. In May 2011, the British newspaper the Guardian
published an article entitled
“Aircraft carrier left us to die, say migrants”.Note
The article recounted the story
of a boat that left Tripoli and floundered at sea for two weeks
before being washed up on the Libyan shores of Zlitan, near Misrata.
The article told of how 72 people attempted to escape the ongoing
Libyan conflict and reach Europe. The boat never made it to Europe,
and by the time it grounded on Libyan soil there were only nine
survivors. According to the survivors, their calls for help were
ignored by various vessels, including at least one military helicopter,
various commercial fishing vessels and even a large military vessel.
The President of the Parliamentary Assembly reacted immediately
to the article, expressing distress and deep concern, saying that
if the allegations were true, then it was a dark day for Europe
as a whole.Note
On the basis of this concern, the
president called for an inquiry.
5 This report is the consequence of that call for an inquiry
and it has been prepared on the basis of an in-depth investigation
into what happened to the “left-to-die boat”. The report shows the
failures – human, institutional and legal – that contributed to
the death of 63 people and makes recommendations to avoid such tragedies
happening again in the future. These deaths could have been avoided,
as, undoubtedly, could many of the hundreds of other deaths at sea
This story is singular in two ways: we know what happened
to the boat because of the testimonies the survivors were able to
give us, and we know that their request for help had been registered
by several competent authorities. They did not go missing, they
were located and observed, which implies that their deaths could
have been avoided if one of the informed actors had come to their
rescue. But their story is unfortunately in no way unique as a number
of silent tragedies occur every year in the Mediterranean. Based only
on confirmed cases, it is estimated that more than 1 500 lives were
lost in the Mediterranean in 2011.Note
The real number will be much higher.
2 Methodology – Steps of a
still ongoing investigation
7 It was clear from the outset
that it was essential to have in-depth interviews with the survivors.
I collected the direct testimonies of four of the survivors and
obtained transcripts of the testimonies of the other five survivors
from different sources.
8 I carried out three fact-finding visits. The first was to
Rome on 6 and 7 September 2011 where I met three of the survivors
along with Father Zerai, the Eritrean Priest who raised the initial
alarm with the Italian Coastguard after having been contacted by
the boat. On 28 November 2011, in Brussels, I met with NATO officials
at their headquarters, and also with a number of European Union
officials. On 15 and 16 December 2011, I met, in Malta, members
of the armed forces responsible for search and rescue operations
at sea. Meetings with representatives of international organisations
and civil society also took place in the context of these three
To better understand the relevant international maritime,
humanitarian, human rights and refugee law, the Committee on Migration,
Refugees and Displaced Persons organised a hearing with invited
experts and specialists on 29 November 2011 in Paris. On the same
day, a restricted round table discussion took place with others
investigating the incident in question. These included an investigative
journalist, Emiliano Bos, who was making a documentary for Swiss
television on the “left-to-die boat”,NoteNote
and representatives of a collective
of associations (including Migreurop and the International Federation
for Human Rights (FIDH) as well as Goldsmiths, University of London)
investigating this case with a view to lodging complaints against
member States and/or NATO.Note
10 I also requested written information from NATO, Frontex, the
European Union, the International Maritime Organization and the
ministers of defence of countries involved in NATO operations with
vessels with aircraft- and/or helicopter-carrying facilities (Canada,
France, Greece, Italy, Romania, Spain, Turkey, the United Kingdom
and the United States). To date, despite reminders, not all these
letters have been responded to (see paragraph 146).
11 Notwithstanding the disappointing lack of response and lack
of information from certain quarters, I am grateful for the professional
help and assistance provided to me by those who have met with me
and responded to my requests for information. While criticisms will
be raised in my report, nothing should detract from the respect
I have for those people who have worked and continue to work to
save lives in dangerous conditions at sea.
I would also like to thank Mr Neil Falzon for his extensive
work as a consultant assisting in the drafting and research of the
3 The “left-to-die boat” –
A fifteen-day fatal journey
3.1 Early spring 2011: migrants,
asylum seekers and refugees had no choice but to leave Libya
13 In mid-February 2011, inspired
by the uprisings in neighbouring Tunisia and Egypt, large segments
of the Libyan population started a dramatic process of social and
political change which ultimately led to the removal of the Libyan
leader, Colonel Muammar Gaddafi. Within weeks, the situation deteriorated
into a violent conflict between pro-government forces and anti-government
militia. This conflict adversely affected a large number of refugees,
migrant workers and other migrants living in Libya. Left unprotected
with nowhere to turn for assistance, hundreds of thousands of these
people were forced to flee Libya. Many left by land, but a large number
were trapped and could only escape by sea.
By 19 March, with the first air strikes on Libyan territory
taking place, the situation seriously deteriorated. United Nations
Security Council Resolution 1973 of 17 March expressed concern about
“the plight of refugees and foreign workers forced to flee the violence”,
and the Office of the United Nations High Commissioner for Refugees
(UNHCR) reported its concerns on 29 March that violence was “being
specifically targeted towards the large groups of foreigners in
the country, including refugees and asylum-seekers”.Note
Sub-Saharan Africans were in particular
being targeted as they were suspected of being pro-Gaddafi mercenaries.Note
By 23 March, the UNHCR estimated that a total of 351 673 persons
had fled Libya, escaping to Tunisia (178 262), Egypt (147 293),
Niger (11 949) and Algeria (9 168).NoteNote
16 In the midst of this chaos, blocked in the city of Tripoli,
groups of sub-Saharan men, women and children were faced with a
difficult choice: stay in Tripoli and risk becoming scapegoats or
being caught in the fighting, or attempt the perilous and expensive
journey across the Mediterranean, the escape to Tunisia over land
also being very dangerous. Smugglers took advantage of the situation
and made money by "organising" journeys by sea to the Italian island
3.2 Day 1 – Departure from Tripoli
on what would be for most of them a fatal journey
17 At night, either in the very
early hours or late in the evening of what was probably Saturday
26 March, a group of 72 sub-Saharan men, women and children boarded
a small inflatable rubber dinghy, possibly not much more than 7
meters long, in order to escape from Libya. Ghirma Halefom, Bilal
Yacoub Idris, Abu Kurke Kebato and Dan Haile Gebre, the persons
I interviewed, were four of the 50 men travelling with 20 women. Some
of the women were pregnant, and there were also two babies crammed
into the dinghy. The 70 adults were between 20 and 25 years of age.
They were from Ethiopia (47), Nigeria (7), Eritrea (7), Ghana (6)
and Sudan (5). A Ghanaian, travelling with his wife, was the designated
18 Some of the survivors recounted that a few days before their
fateful trip they had met on the coast intending to leave, but they
were discovered and prevented from leaving by the Libyan military.
On the day of their departure, however, Libyan soldiers did not
prevent them from leaving and even accompanied them to their rubber
19 When the passengers boarded the dinghy, their provisions were
taken away from them by the smugglers who wanted to cram as many
people as possible into the boat. Bilal said, “It was completely
overcrowded. Everyone was sitting on everybody else. I had someone
sitting on top of me, and this person had someone sitting on top
of him. They don’t really care how many people can fit into the
boat all they want is to get the money from each person”. It seems
that amongst the passengers they only had a box of biscuits and
a few bottles of water. Once the dinghy was fully inflated, it left
in the darkness of the night.
20 They were told by the smugglers that eighteen hours of navigation
would take them to Lampedusa. Despite a rough sea, the first day
3.3 Day 2 – A small aircraft
flies over the dinghy
21 On Sunday 27 March, after well
over eighteen hours of navigation, Lampedusa was nowhere to be seen. People
started to become increasingly sea sick, the mood changed and worry
22 At this point, the passengers noticed an aircraft flying high
above them. This raised hope of being rescued. Ghirma said the aircraft
was white, and not a helicopter but rather a small patrolling aircraft.
3.4 The boat calls Father Zerai
– Rome Maritime Rescue Co-ordination Centre (MRCC) is informed
23 It was not long, however, before
the men and women aboard the boat started to panic with the rough sea
tossing them around and dark clouds looming overhead. In view of
the situation, they decided to use a satellite phone to call Father
Zerai, an Eritrean Priest living in Rome, whose number had been
given as a contact person in case of an emergency. The “captain”
had the phone, but nobody knew where he had got it from or who had
added Father Zerai’s number to it. In a short conversation, Father
Zerai was informed that they were having problems, that there were
women and children on board, that they were running out of fuel
and that the sea was getting increasingly rough.
24 The priest informed them that he would contact the Italian
authorities to request assistance. Father Zerai subsequently contacted
the Italian Coastguard at the Rome Maritime Rescue Co-ordination
Centre (Rome MRCC) explaining the difficulty the boat was in: drifting,
without fuel and taking in water. He also provided them with the
number of the satellite phone on board. Father Zerai’s initial call,
which was logged and recorded by the Rome MRCC, took place on 27
March at 6.28 p.m. After further contacts with the boat, Father
Zerai kept the Rome MRCC updated, first informing them that the
boat still had a very small amount of fuel but was no longer taking
in water, and later, after further contact with the boat, informing
the Rome MRCC that he did not know what exactly was happening, but
that those on board the boat kept on shouting over the phone “we
have an emergency, we have an emergency” and “help, help, be quick,
25 Father Zerai and the Italian Coastguard sent the boat an SMS
with instructions on how to trigger the satellite phone’s GPRS,
to enable the coastguard to establish their precise location on
the basis of satellite data. However, the attempt to trigger the
GPRS did not succeed. Following the exchange with Father Zerai, the
“captain” received a call from the Italian Coastguard asking him
to provide details of their location. This was the last telephone
contact with the boat, as the phone’s battery died as the request
was being made.
26 The calls made from the satellite phone nevertheless enabled
the Italian Coastguard, via the satellite provider Thuraya, to establish
the boat’s location at around 60 miles off the shore of Tripoli.
3.5 Hope for rescue: a military
helicopter drops water and biscuits to the boat
27 With no means of communication,
the 72 people drifted with the current, saving the little amount
of petrol left in the tank. A number of hours after their exchange
with Father Zerai, a military helicopter appeared and hovered above
them. The helicopter is described as being relatively small, dark
grey/military green in colour and, according to more than one survivor,
with the writing “ARMY” on the side. They remember that there were at
least two people inside the helicopter and that they were dressed
in military uniform and were carrying weapons.
28 Many people on board the boat started singing and clapping
for joy, holding the babies above their heads and pleading for rescue
and assistance. The helicopter then left the boat. It, or another
helicopter, returned within a short time and used a rope to lower
down small bottles of water, in a six-pack format, together with packets
29 Some of the survivors described the plastic bottles as having
the word “acqua” (“water” in Italian) written on them, and Dan Haile
insisted that the biscuit packaging showed they had come from Italy.
Ghirma told us that the biscuits had green packaging. The biscuits
and water were distributed to the women and children. Elias, interviewed
in Tunisia by journalist Emiliano Bos, recalled reading the numbers
"+39" (the dialling prefix for Italy) in front of what seemed to
be a telephone or fax number.
30 The military personnel in the helicopter indicated to the
people on the boat that they would return, and instructed those
on the boat not to change their current position.
3.6 The “captain” throws the
compass overboard and the boat runs out of fuel
31 The “captain” reassured everyone
that a ship would come to their rescue within hours. The engine
was turned off and everyone aboard started praying and waiting.
32 After several hours, an argument broke out between the “captain”
and other passengers. The “captain” insisted on remaining in the
same position, while some passengers who had lost hope of being
rescued urged the “captain” to return to the original instructions
given to him by the smugglers. However, in the meantime, the “captain”
had thrown the compass and the satellite phone overboard when he
thought the helicopter was going to rescue them. He explained that
he did not want to be arrested for possession of the telephone and
the compass. He feared that these items would be used as evidence
of his involvement in a smuggling network.
33 When several more hours passed and there was no sign of a
rescue, they decided to attempt the onward journey, in a north-westerly
direction. The “captain” managed to navigate for a number of hours
using the sun to provide direction.
34 The boat soon ran out of fuel. At this point it was stranded
in the middle of the Mediterranean. There was no food and almost
no drinking water left.
35 This point, although still at an early stage of the trip,
marked a dramatic turn in the general mood on the boat. Fits of
panic broke out. The wind became stronger and the waves larger.
The stormy weather tossed the boat around, filling it with seawater.
Some persons were thrown into the sea by the rough weather, and attempts
to rescue them failed.
3.7 Encounter with fishing boats
36 The survivors also remember
encountering a number of fishing boats at about the time they ran
out of fuel. They saw at least one fishing boat flying the Italian
flag and another flying a Tunisian flag. As they attempted to approach
the Italian boat the fishermen drew in their nets and sailed away.
37 The Tunisians told them that they were navigating in the wrong
direction and gave them new directions for Lampedusa. When the people
on the boat told the fishermen that they had run out of fuel, the
fishermen replied that they had none to give them. They then just
“ran away from us”.
38 There is no indication that any of the fishermen called or
warned any national coastguard about the boat in distress that they
had encountered. If they had done this, many lives could have been
3.8 “People started to die,
one after the other”
The situation on board the
boat deteriorated quickly. Some people were hallucinating and speaking incoherently,
perhaps because of drinking seawater. Many could not sleep, and
one young woman threw herself into the sea in a panic attack.Note
“Every day, there were more and
more people who would die.”
40 The survivors all recounted how, at this stage, on roughly
the fifth or sixth day at sea, many people started dying, including
the children. By the tenth day, around half of the people had died
and had to be thrown overboard due to the smell. The fact that they
had to do this further compounded the desperation and sense of hopelessness
of the survivors.
3.9 Approximately day 10 – A
large military vessel comes close to the boat
41 The survivors all concur that
on what could have been day 10 of their trip they drifted close
to a very large military vessel. It was possibly an aircraft carrier
or at least a vessel with helicopter facilities, with helicopters
on board and possibly also fighter jets. The ship was of an off-white
or light grey colour and the boat was close enough for them to see
people on board wearing different coloured military uniforms.
42 “Some were looking through binoculars and others were taking
pictures of us,” Ghirma told me. The ship remained at a distance,
so the people in the boat started shouting and waving their hands.
“They’re just watching that there are dead children and other bodies.”
43 In an attempt to approach the ship, some of the survivors
jumped into the sea and starting pushing their boat in its direction.
These efforts were, however, in vain. None of the survivors could
remember seeing the ship’s flag. They held up the dead babies and
the sick women, and also the empty fuel tanks. There was no communication
from the ship and no assistance was provided. After a short while,
the military vessel sailed away, abandoning the stranded boat.
44 “But instead they wandered off, their ship sailed off. Initially,
we thought that this vessel was pointing in the right direction
by sailing off, expecting us to follow; they were trying to show
us the way. But then, you know, they kept wandering off and we kept
following, and in spite of our many gestures, they were not responding
at all. And gradually, they just disappeared, and we realised that
they were not responding, replying to our distress calls at all,”
3.10 After day 10 – “We were
just waiting for our own time or turn to die”
45 The boat drifted with the current
and with the wind. To survive they drank their urine mixed with
the little toothpaste they had managed to bring with them. The death
toll kept rising, and on about the fifteenth or sixteenth day of
their trip only 11 persons were still alive. “We were just waiting
for our own time or turn to die,” remembered Ghirma. Bilal recalled
how the group shrunk. “While we were talking to one another, four
of us just died, four of the people in that group, talking, just
passed away ….”
46 On 10 April, their boat was washed up on the rocks close to
Zilten, a Libyan town situated 160 km east of Tripoli and 60 km
west of Misrata. By then only 11 people were left from the group
of 72. One woman died when they landed ashore. They were immediately
arrested. Their possessions were confiscated, including wedding
rings, necklaces, photos, documents and SIM cards. At this stage,
the survivors were so exhausted that most lost consciousness.
47 The survivors were imprisoned for 24 hours and given tea and
bread. Due to the lack of appropriate medical assistance, one of
the survivors died in prison. They were then transferred from one
prison to another. Their medical condition deteriorated and their
open wounds from the trip became infected.
48 Eventually, with outside assistance, they managed to bribe
their way out of prison and made their way to the Tripoli Catholic
church, where they received some medical assistance. Since the situation
in Libya remained dangerous, the survivors sought a way to escape.
Some of them found refuge in Tunisia while others, once again, decided
to attempt the maritime trip to Lampedusa. Ghirma, for example,
reached Lampedusa on 11 June 2011.
49 The credibility of the story: I am aware of minor variations
in the stories told by the survivors. I must, however, underline
that there is nothing in these variations which undermines the overall
credibility of the testimony. For the most part, the survivors were
interviewed separately. Many of them had not seen each other since
fleeing Libya, yet they all had the same basic story. For the sake
of the investigation, the survivors interviewed had to relive traumatic
events. The interviews were therefore moments of emotional intensity
and I am grateful to the survivors for sharing their stories with
me in all honesty.
50 The credibility of their testimonies is also confirmed by
Father Zerai’s account, as well as by objective elements gathered
in the course of the investigation. In addition, the Rome Maritime
Rescue Co-ordination Centre (Rome MRCC) provided me with extensive
information and evidence supporting key elements of the story.
4 The issues – Seven questions
Before looking at the question
of responsibility, it is necessary to clarify the legal framework
The principal international maritime
law instrument, containing core definitions, jurisdiction issues
and rights and duties of States and other seafarers, is the 1982
United Nations Convention on the Law of the Sea (UNCLOS).Note
Article 98 of UNCLOS (Duty to render
assistance) contains two State obligations, both relevant to the
- All States should
take all necessary steps to ensure that shipmasters of ships flying
their flags assist persons in distress, proceed to the rescue of
persons in distress and render assistance in collision situations.
This obligation is not limited to coastal States and essentially
requires that legislation is adopted at the national level obliging
shipmasters to act as required by UNCLOS;
- Coastal States are required to “promote the establishment,
operation and maintenance of an adequate and effective search and
52 These obligations are further expanded in two international
legal instruments: the 1974 International Convention for the Safety
of Life at Sea (SOLAS) and the 1979 International Convention on
Search and Rescue (SAR). The two instruments complement UNCLOS insofar
as they strengthen the duty to render assistance. They do this by, inter alia, clarifying that the
duty is to be fulfilled without consideration of the nationality,
status or circumstances of the persons in distress, and spelling
out the operational details regarding the establishment by coastal
States of search and rescue services.
53 The spirit of the SOLAS and SAR conventions is also reflective
of UNCLOS’ aim, namely that search and rescue activities should
be conducted within a co-operative framework between neighbouring
States. The SOLAS and SAR conventions together create the so-called
SAR (search and rescue) regime, according to which the world’s seas
are divided into defined areas within which coastal States provide
their search and rescue services: SAR zones. The definition by a
coastal State of a SAR zone entails the triggering of SAR responsibilities,
including the establishment of appropriate rescue co-ordination
centres (RCC) tasked with ensuring the operational fulfilment of
54 Essentially, the SAR regime does not require that coastal
States actually conduct search and rescue operations for every vessel
in distress in their SAR zone, but rather that the State co-ordinates
such operations to ensure their efficiency in saving lives.
Furthermore, as also emphasised by NATO officials in their
meeting with me, the obligation to rescue applies to all masters
of ships and makes no distinction on the basis of the nature of
the ship or the purpose of the ship’s presence in the maritime region.
Military vessels are therefore equally bound under international
law “to render assistance to any person found at sea in danger of
being lost; to proceed with all possible speed to the rescue of
persons in distress, if informed of their need of assistance, in
so far as such action may reasonably be expected of him [the shipmaster]”.Note
4.1 Was there a failure in the
co-ordination of search and rescue?
4.1.1 Rome Maritime Rescue Co-ordination
56 On 27 March at 6.28 p.m., Father
Zerai made the first of several calls to the Rome Maritime Rescue
Co-ordination Centre (Rome MRCC) to report that the boat was in
57 Following that phone conversation, the Rome MRCC undertook
58 The Rome MRCC first tried to contact the boat. From the audio
records, it is clear that the conversation was interrupted before
any substantial exchange could take place. This confirms the survivors'
story that their satellite phone ran out of battery at the moment
they were called.
59 On 27 March at 6.40 p.m., the Rome MRCC contacted Thuraya,
the satellite provider, requesting it to provide the boat’s co-ordinates
based on the last call made from the boat’s satellite phone. The
co-ordinates obtained were:
Latitude: 33 degrees,
58.2 minutes North
Longitude: 12 degrees, 55.8 minutes
The Rome MRCC then sent out
a number of messages, using different networks and satellites, to
make sure they reached a maximum number of vessels in the area.
On 27 March at 7.54 p.m., the Rome MRCC launched a distress call
on the InmarsatNote
-C Gateway Enhanced Group Call (EGC)
addressed to all ships transiting in the Sicily Channel. I should
stress that “Distress” is the highest emergency phase foreseen in
the SAR Convention.
MRCC ROME – ITALIAN COAST GUARD TO ALL SHIPS TRANSITING IN SICILY
ON 27 MARCH 2011 SICILY CHANNEL
SEA IN POSITION LAT 33°58’.2’’N – LONG 012°55’.8’’E AT 16:52 GMT A
BOAT WITH ABOUT 68 POB PROBABLY IN DIFFICULT. ALL SHIPS TRANSITING
IN THE AREA ARE REQUESTED TO KEEP A SHARP LOOKOUT AND REPORTING
ANY SIGHTING URGENTLY AT MRCC ROME AT THE FOLLOWING ….”
- The Rome MRCC then informed
the Malta MRCC by phone. The call was followed up by a fax alert
sent at 8.40 p.m.:
“FROM: MRCC ROME
SUBJECT: BOAT WITH APPROX. 68 P.O.B. PROBABLY
TEXT: DEAR SIRS,
APPROPRIATE ACTION, PLEASE BE INFORMED THAT TODAY WE RECEIVED THE INFORMATION
ABOUT A BOAT WITH 68 P.O.B. PROBABLY IN DIFFICULT IN POS. LAT 33°58.2’N
– LONG 012°55.8’E (16.52 UTC) ON BOARD THERE IS A THURAYA SAT PHONE
(NUMBER 0088 216 21256157). NO OTHER INFORMATION IS AVAILABLE AT
- At 9.40 p.m., the Rome
MRCC sent a fax to NATO Headquarters Allied Command in Naples:
“FROM: MRCC ROME
NATO HEADQUARTER ALLIED COMMAND – NAPLES
BOAT WITH APPROX 68 P.O.B. PROBABLY IN DIFFICULT IN POS. LAT 33°58.2’N
– LONG 012°55.8’E (16.52 UTC)
TEXT: DEAR SIRS/MADAMS
ANY APPROPRIATE ACTION, PLEASE BE INFORMED THAT TODAY THIS MRCC
RECEIVED THE INFORMATION ABOUT A SMALL BOAT WITH ABOUT 68 P.OB.
IN DIFFICULT IN THE SOUTH MEDITERRANEAN SEA. ON BOARD THERE IS THE
THURAYA SAT PHONE WITH THE NUMBER 008821621256157.
CARRIED OUT SOME INVESTIGATION ABOUT THIS CASE WITH THE PURPOSE
TO LOCATE THE CALLER. “THURAYA” COMPANY INFORMED US THAT THE POSITION
OF THE SATELLITE DEVICE AT 16.52 UTC WAS LAT 33°58.2’N – LONG 012°55.8’E.
KEEP US UPDATED IN CASE OF SIGHTING OF THE ABOVE MENTIONED BOAT
BY ANY NATO NAVAL ASSETS.”
- Frontex, at the time
involved in an operation in the vicinity of Lampedusa, was also
- On 28 March at 6.06 a.m., the Rome MRCC sent out to all
vessels another form of alert message, a HydrolantNoteNote navigational warning (Warning No.
VESSEL, 68 PERSONS ON BOARD, IN NEED OF ASSISTANCE
IN 33-58.8N. 012-55.8E AT 271652Z MAR. VESSELS IN VICINITY REQUESTED
TO KEEP A SHARP LOOKOUT, ASSIST IF POSSIBLE, REPORTS TO MRCC ROME,
61 All maritime vessels, be they
private, commercial or military, are supposed to be equipped to
receive these messages. The Inmarsat message was not just sent once,
but the Rome MRCC – probably nevertheless aware of the seriousness
of the situation – kept sending this distress message every four
hours for ten days. Many boats must therefore have received it.
62 It is clear that all maritime vessels in the region were alerted
to the situation of the boat. The Hydrolant message, in particular,
is unambiguous on the degree of distress of the boat “in need of
assistance … assist if possible”.
4.1.2 Void of responsibility
63 The boat was clearly within
Libya’s search and rescue (SAR) zone. The launching and co-ordination
of a search and rescue operation was therefore, in principle, the
responsibility of Libya’s Maritime Rescue Co-ordination Centre (MRCC).
A State’s responsibilities with regard to its SAR zone is primarily
to ensure, through co-ordination, that all persons in distress within
the zone are promptly rescued and disembarked at a place of safety.
64 A standard SAR procedure would have seen the Rome MRCC handing
over responsibility for the incident to Tripoli MRCC. Libya, as
we know, was in a situation of internal armed conflict and upheaval.
While the boat was in Libya’s zone, it is clear that there was nobody
on the Libyan side capable of co-ordinating a search and rescue
65 At this stage, two MRCCs were informed of the boat’s situation:
Rome and Malta. No search and rescue mission was initiated, however.
66 Indeed, there is no evidence that Libya MRCC was actually
informed about the boat in distress and its position. None of the
over 40 analysed telephone recordings provided by the Rome MRCC
refer to such a notification to Tripoli. On the contrary, the reference
to Tripoli MRCC in these calls seems to indicate that forwarding
the distress alert to Libya was either not necessary or, more likely,
a futile exercise. I have sought clarification on this issue and
the Rome MRCC has confirmed to me that at the relevant time Tripoli
MRCC did not respond to attempts by the Rome MRCC to communicate
or to have an exchange of information.
67 Notwithstanding that the Rome and Malta MRCCs knew, or should
have known that there was no Libyan search and rescue capacity,
neither felt an obligation to mount a full search and rescue operation
as the ship in distress was not within their SAR zone. The boat
in distress was thus left floating in a responsibility vacuum.
68 During my visit to Malta, the Malta MRCC noted that its helicopters,
being one-engine assets, were not able to travel such long distances
and get back and that its boats usually required around twenty to
twenty-four hours to reach the end of its SAR zone. The Maltese
search and rescue authorities told me they had never considered
starting a SAR operation, as they considered the Rome MRCC, the
first MRCC informed, to be responsible on the basis of maritime
law, and indeed the Rome MRCC had not requested them to start a
search and rescue operation. Malta did, however, verify the location
of the boat, which was slightly different from the location provided
by the Rome MRCC, and informed the Rome MRCC accordingly. It should
be noted that according to the Goldsmiths analysis of the reconstruction
of the boat’s drifting, it is possible the boat could have entered
into the Maltese SAR zone before moving back into the Libyan SAR
zone (see Appendix 1).
69 The Rome MRCC stated that during the period in question their
assets were working around the clock, with between 20 to 25 incidents
requiring attention on just one day. Between 26 and 28 March, the
Italian authorities were engaged in incidents involving approximate
4 300 people. Over 2 200 of these people were assisted at sea and
around 2 000 were rescued from distress situations. From the Rome
MRCC’s perspective, priority needed to be given to the large number
of incidents occurring within Italy’s SAR zone rather than incidents
occurring elsewhere. The Italian authorities did not consider themselves
as the responsible authority, as the boat was not located in their
SAR zone. They explicitly let me know that if this had been the
case, they would have certainly co-ordinated the SAR operation.
At the same time, they remarked that they did not interpret the
message from Father Zerai as an explicit request to be rescued,
and that they lacked precise information on the situation of the
boat. To illustrate that this had influenced their attitude, the
coastguards told me about an SAR action they undertook in the Libyan
SAR zone in response to a call for help with detailed information
provided by a tug boat in August 2011.
70 Furthermore, some of the information available to the Rome
and Malta MRCCs indicated that the boat was not adrift but that
it was moving ahead with the use of its engines, possibly implying
that the call was not an urgent distress call.
71 In this context, I am worried by this narrow interpretation
of distress, according to which as long as the boat is still moving
it is not in distress. I should like to recall here the definition
of distress as stated in the SAR Convention: “Distress phase: A
situation wherein there is a reasonable certainty that a vessel
or a person is threatened by grave and imminent danger and requires
72 That this boat was in distress and thus triggered an obligation
to assist is clear to me. The “captain” had signalled distress,
the boat was an overloaded rubber dingy lost in the middle of the
sea with little or no food, water or fuel aboard. I would also like
to stress that while virtually all migrant boats may, according
to SAR standards, be considered to be in distress, this in no way
means that a higher threshold should apply to such vessels.
73 Based on the analysis of the telephone recordings provided
by the Rome MRCC, it appears that the Rome MRCC tried to find a
solution but did not seem able to request proper assistance from
the military assets involved in NATO’s operations. At the same time,
the Rome MRCC did not explicitly request anybody’s direct intervention,
be it Malta, NATO or any other party. I find this hard to understand
as the Rome MRCC was aware that no one would take responsibility
for the search and rescue operation. This attitude may be the result
of the sensitive handling of defence matters and the unclear relationship
with NATO. NATO should have introduced a mechanism to co-ordinate
its assets in SAR operations in direct contact with the relevant
4.2 Was there a failure of the
74 While a standard search and
rescue procedure would have seen the Rome MRCC handing over responsibility
for the incident to the Tripoli MRCC, it is clear that Libya’s SAR
zone was not being controlled by Libya. While the obligation to
rescue at sea is crystal clear, the institutional obligations of
neighbouring countries for a non-functioning or inadequately functioning
SAR are not so clear.
75 Apparently this situation is not foreseen in the existing
legal framework. The SAR Convention merely foresees that in the
event of a boat in distress at an unknown position, an MRCC “shall,
unless it is aware that other centres are taking action, assume
responsibility for initiating suitable action and confer with other
centres with the objective of designating one centre to assume responsibility”
In the case in question, the boat’s location was known. Based
on the International Aeronautical and Maritime Search and Rescue
jointly published by the International
Maritime Organization and the International Civil Aviation Organization,
the Rome MRCC, as the first MRCC informed, should have maintained
SAR responsibility over the incident in view of Tripoli’s inability
and failure to assume responsibility. The IMO Guidelines on the
Treatment of Persons Rescued at SeaNoteNote
confirms this. Article 6.7 states:
“[w]hen appropriate, the first RCC contacted should immediately
begin efforts to transfer the case to the RCC responsible for the
region in which the assistance is being rendered. When the RCC responsible
for the SAR region in which assistance is needed is informed about
the situation, that RCC should immediately accept responsibility
for co-ordinating the rescue efforts, since related responsibilities,
including arrangements for a place of safety for survivors, fall
primarily on the Government responsible for that region. The first
RCC, however, is responsible for co-ordinating the case until the
responsible RCC or other competent authority assumes responsibility.”
77 These standards contain operational guidelines but they are
of a non-binding character. Insofar as the SAR Convention does not
explicitly provide a clear solution to scenarios involving "absent"
or "inactive" SAR States, it could be suggested that a legal vacuum
exists requiring specific provisions in order to avoid similar incidents
in the future.
78 As one of the very purposes of the system of applicable international
laws is to preclude the possibility of people finding themselves
in a legal no-man’s land, the rule to provide assistance therefore
takes precedence over any contractual relations between the different
parties. One can conclude that not being responsible on the basis
of SAR zones does not relieve another State which is informed about
an incident at sea of its responsibility to ensure the rescue operation.
79 Furthermore, one of the negative aspects of the international
law of the sea, as it stands, is that is does not penalise those
who fail to exercise their responsibility.
80 What also transpires from this incident is the apparent lack
of clarity as to what amounts to distress. It should be ensured
that there are clear and simple guidelines, which are then followed,
on what amounts to a distress signal, so as to avoid any confusion
over the obligation to search for and rescue a boat in distress.
81 In 2004, a series of amendments were adopted to the SAR and
SOLAS conventions, coming into force two years later in 2006. The
amendments, inter alia, provided
further guidance on the locations where such rescued persons ought
to be disembarked.
It should be noted that the 2004 amendments are the subject
of ongoing disagreements between the Italian and Maltese authorities
owing to the fact that Malta exercised its sovereign right to object
to the set of amendments, including by not ratifying them. Malta’s
understanding of the 2004 amendments is that they would oblige Malta
to accept the disembarkation in its ports of all persons rescued
within its very large SAR zone.Note
83 The main impact of the situation where neighbouring coastal
States are regulated by two different sets of legal obligations
is the consequential lack of legal certainty with regard to the
most appropriate place of disembarkation for persons rescued in
the central Mediterranean Sea.
84 This situation has led to a number of incidents where migrants,
asylum seekers and refugees rescued on the high seas, including
by fishermen or by military assets, were left waiting for days for
the relevant States to decide where they ought to be disembarked.
I am concerned that such situations contribute to the increasing unwillingness
of private, commercial vessels, but also possibly of military vessels,
to fulfil their legal obligation and rescue persons in distress,
a failure also witnessed by the persons on the “left-to-die boat”.
4.3 Was there a failure to intervene?
4.3.1 The French aircraft
85 Information provided by the
Rome MRCC indicated a sighting of a boat full of migrants by a French aircraft
on 27 March at 2.55 p.m., just a couple of hours before the migrants
made their first call to Father Zerai. According to the French sighting,
the boat was a rubber dinghy, had about 50 persons on board and
was under propulsion, as opposed to drifting. A photograph taken
by the aircraft was also provided to me by the Rome MRCC, showing
distinctly a blue boat packed with people and steadily moving ahead.
86 The boat’s position at this time, as recorded by the French
aircraft, was not far away from Thuraya’s estimate of the boat just
a few hours later.
Latitude: 33 degrees,
40 minutes North
Longitude: 13 degrees, 05 minutes
87 The boat in the picture was
identified as the boat in question by one of the survivors. Another
survivor recalled that it was blue. Taking these facts into account,
I am convinced that this is indeed a picture of the “left-to-die
88 I was not provided with the name of the French aircraft.
89 I have written to the French authorities with questions relating
to this picture, including one regarding the identity of the aircraft
from which the photograph was taken and one regarding the identity
of the vessel from which the aircraft was operating and its location.
I also requested them to respond to my earlier requests concerning
the location and activities of their assets at the time.
90 On 5 March 2012, I received a reply from the French Minister
of Defence stating that, according to information provided by the
French military, no such event occurred off the Libyan shores during
the NATO operations. The minister added that the French vessel Meuse encountered a vessel carrying
migrants on 28 March 2011 approximately 12 nautical miles south
of Malta, which could not have been the boat in question. The minister
went on to say that all other French assets were operating in the
Gulf of Sidra, therefore not in the area of concern. While this
reply is interesting, it fails to provide any concrete answers as
to the identity of the French aircraft that took a picture of the
boat and transmitted it to the Rome MRCC.
91 In relation to this specific incident, NATO’s written reply
to my letter of 8 December states that “based on a review of existing
records in NATO operational headquarters, there is no record of
any aircraft or ship under NATO command having seen or made contact
with the small boat in question”.
4.3.2 The helicopter
92 The military helicopter that
came and lowered a few bottles of water and biscuits to the boat
did so after Father Zerai had informed the Italian Coastguard of
the boat in distress.
93 It is likely, but not certain, that the distress call and
the intervention of the helicopter were linked.
94 The helicopter must have understood that the lives of the
persons on the boat were in danger. The survivors recalled that
the soldiers in the helicopter made gestures to them to wait. They
were then confident that someone would come back and rescue them.
95 Why did this not happen? This is hard to understand. Perhaps
the engine of the boat was running at the time and it was therefore
not adrift? While this might have been an indication that the boat
was not in immediate distress, the other characteristics of the
boat (a simple dinghy, overcrowded, miles from the coast, people
on board showing clear signs of distress) should have been clear.
Furthermore, the message of the Rome MRCC was significant, and even
if the helicopter had not considered the boat to be in distress
it should have contacted the Rome MRCC and kept them informed of
the reported sighting and intervention.
96 I therefore conclude that there was a clear failure of the
helicopter and its command to take appropriate follow-up action
linked to the boat and the people in distress.
4.3.3 The large military vessel
97 Having established the credibility
of the survivors’ story, I have no reason to doubt that at one point during
their journey they did encounter a large military vessel and that
this vessel did not provide them with any assistance. In the light
of NATO’s statements regarding States’ commitments vis-à-vis their
international obligations at sea, and a number of SAR activities
which took place successfully involving NATO assets, it is difficult
to understand why no assistance was offered to the boat, regardless
of whether the military vessel was under NATO command or not.
98 It should be noted that at the time of the sighting of the
large military vessel (around day 10 of the boat’s journey, therefore
well after 31 March), NATO had taken sole command of the international
military effort concerning Libya and it is my understanding that
all military vessels in the region were under the command of NATO.
My request to NATO for clarification on this point has, however,
remained unanswered. In the reply from the French Minister of Defence,
I was informed that the aircraft carrier Charles
de Gaulle (explicitly mentioned in the Guardian article) was never operating
closer than 150 nautical miles from Tripoli at the time of concern and
could therefore not have been the large vessel encountered by the
boat. I was also informed by NATO that the Italian aircraft carrier ITS Garibaldi was also 120 to 150
miles away at this time.
99 According to the survivors’ accounts, the situation on board
their boat when they encountered the ship was very different to
the situation when they encountered the helicopter. When the ship
came across them, many persons had already died and there was no
food and water. It should have been clear to onlookers that the
survivors and the boat were in distress and required immediate rescue.
In these circumstances there was a clear failure to intervene.
4.3.4 Commercial shipping
100 There are also serious concerns
about the failure of the fishing boats to take any action when coming into
contact with the boat in distress.
101 According to the survivors, the Tunisian fishermen pointed
them in the direction of Lampedusa. It is clear that the fishermen
failed to go to their aid and did not provide any material form
of assistance. What is of particular concern is that the fishermen
failed to inform any maritime authority of the boat’s presence and distress.
102 Fishing boats have a radio on board. It would have been simple
for a call to have been made indicating the location of the boat
103 It is also unclear why the Cypriot supply vessel Sea Cheetah did not intervene. From
the analysed telephone recordings provided by the Rome MRCC, I understand
that it was not far from the boat’s location on 27 March 2011. However,
apparently the Sea Cheetah took
no action, nor did the Rome MRCC ask it to do so.
In their meeting with me, UNHCR officials highlighted a number
of concerns about measures being taken by coastal States that negatively
affect the willingness of fishing vessels and other commercial shipping
to fulfil their obligation of rescue at sea. Such measures include
the criminalisation of irregular migration and problems of delays
in agreeing a place of disembarkation. For commercial vessels, this
can lead to serious financial losses and also the threat of criminal
sanctions for aiding and abetting irregular migrants. It is clear
that commercial vessels, including small fishing vessels, seem to
be increasingly reluctant to rescue mixed flows of migrants in distress
4.4 Was there a failure by NATO?
As previously explained, NATO
was informed of the situation of the boat via a fax sent by the
Maritime Rescue Co-ordination Centre (MRCC):
“FOR ANY APPROPRIATE ACTION, PLEASE BE INFORMED THAT TODAY
THIS MRCC RECEIVED THE INFORMATION ABOUT A SMALL BOAT WITH ABOUT
68 P.O.B. IN DIFFICULT IN THE SOUTH MEDITERRANEAN SEA. ON BOARD
THERE IS THE THURAYA SAT PHONE WITH THE NUMBER 008821621256157.
WE CARRIED OUT SOME INVESTIGATION ABOUT THIS CASE WITH THE PURPOSE
TO LOCATE THE CALLER. “THURAYA” COMPANY INFORMED US THAT THE POSITION OF
THE SATELLITE DEVICE AT 16.52 UTC WAS LAT 33O58.2’N – LONG 012O55.8’E.
PLEASE KEEP US UPDATED IN CASE OF SIGHTING OF THE ABOVE MENTIONED
BOAT BY ANY NATO NAVAL ASSETS.”
106 NATO did not reply to the Rome MRCC’s fax. However, no reply
would have been expected unless maritime assets were in the vicinity
of the vessel, the subject of the alert. Interestingly, however,
on 28 March at 11.58 a.m., NATO replied to another alert the Rome
MRCC had disseminated, informing them that no NATO assets were in
the vessel’s vicinity. It is not clear why NATO replied to that
particular alert and not to the alert relating to the “left-to-die
NATO’s responses to this incident were inconsistent, as illustrated
by NATO’s initial comments to the media:
“It had not logged any distress signals from the boat
and had no records of the incident”;Note
“There is no absolute evidence of NATO ships being involved
in such events”;Note
“I have no evidence of having received such alerts”;Note
“The only aircraft carrier attached to the NATO mission
at the time in question, which is the 29th and the 30th of March,
was an aircraft carrier which was operating more than 100 nautical
miles away from the possible location of the migrant vessel”;Note
“NATO units at sea neither saw nor heard any trace of
distress calls from that area”;Note
“Basically, NATO was not involved because it had no signs,
108 During my meeting with NATO officials in Brussels, I was informed
that NATO’s closest asset to the boat was 24 miles away. Despite
my official and repeated request, NATO has not disclosed the name
of the vessel in question.
109 However, I have gathered evidence that NATO assets were indeed
in close proximity to the boat at that time, namely one only 11
miles from the boat.
110 On 27 March at 8.07 p.m., the Italian Naval Fleet Command
(CINCNAV) made a call to the Rome MRCC during which the boat in
distress was discussed. Importantly, the CINCNAV officer confirms
that a military vessel under NATO command was located around 11
miles away from the boat in distress: the Spanish military vessel Méndez Núñez.
111 Given the Méndez Núñez’s distance
from the boat, it seems that it could have reached the boat in distress
in less than two hours. It remains unclear why NATO, or the Méndez Núñez itself, failed to provide
this information to the Rome MRCC following the launch of the distress
alert. What is clear is that no attempt was made by the Spanish
vessel to approach the boat. Furthermore, the Méndez
Núñez is a military vessel with the capacity to carry
a helicopter. If it had a helicopter on board it would have been
an even simpler operation to check on the boat in distress.
112 During the above-mentioned telephone conversation between
the CINCNAV and the Rome MRCC, shortly after referring to the Méndez Núñez, mention is made of
the Italian vessel ITS Etna as
being within the specified region as well as the ITS Borsini. In information provided
by NATO, it is confirmed that the ITS
Borsini was 37 nautical miles away, but that the ITS Etna was much further away (155
miles). The presence of an Italian military vessel within the specified
region could provide a link to the origin of the water and biscuits dropped
by the helicopter to the boat in distress. The ITS Borsini has a helicopter capacity.
More information is needed from the authorities to establish whether
or not this vessel was aware of or involved in the incident.
113 It also transpires from the aforementioned conversation between
the Rome MRCC and the CINCNAV officer that the latter left it to
NATO to deal with its own assets, which were “the nearest of all
in absolute terms”.
114 It is not clear whether the NATO vessel located at 24 miles
from the boat was the Méndez Núñez,
or another military vessel. It can be noted that 24 miles is a relatively
close sailing distance. Indeed, I was told by the Malta MRCC that
when organising a SAR operation they look for assets in a 100-mile
radius. As one NATO official said: “it would have been a piece of
cake” to sail to the boat.
NATO officials have confirmed in a meeting, in follow-up written
communications, as well as in several press briefings, that NATO’s
operations are fully aware of their international maritime law responsibilities.
Their active involvement in a number of SAR operations during this
period resulted in the saving of hundreds of lives. This is clear
evidence of their general readiness to assist when and as required.Note
Yet despite this understanding of
international maritime law rules and a willingness to save lives
at sea, no asset known to be close to the boat headed to its rescue.
116 According to NATO, the contents of the message they received
from the Rome MRCC in the evening of 27 March were unclear. NATO
told us that the message was not sent in the required format, standardised
for ease of comprehension, and that it was therefore not a clear
distress call requesting specific action. NATO specified that the
message’s text “did not convey a sense of seriousness or urgency”.
117 Whilst the indication that the vessel was in difficulty appears
to be clear, the message does not request any prompt specific action
and the word “distress” is not used. The Malta MRCC also commented
on the nature of the alert, saying that there was no specific query
as to availability of assets.
118 This possible lack of clarity on the alert level is not seen
in the Inmarsat-C Enhanced Group Call (EGC) launched by Rome (27
March 2011 at 7.54 p.m.), which clearly indicated the alert’s priority
as “distress”. The Hydrolant warning message launched on 28 March
at 6.06 a.m. specifically stated that the persons were in need of
assistance, requesting all vessels in the vicinity to keep a sharp
lookout and to “assist if possible”.
119 It is my understanding that the messages were sufficiently
clear to indicate that action was necessary and that they should
not be ignored. If authorities were considering not intervening
because of the lack of clarity, asking for clarification from the
Italian coastguards would have been the most appropriate step to
In order to understand the situation better, I wrote to the
Ministry of Defence of Spain with respect to the Méndez Núñez
and to NATO with respect
to the ITS Etna
(which I was
informed was under NATO command) seeking the following information:
- the specific location of the Méndez Núñez and the ITS Etna at the time of the Rome
MRCC’s fax alert to NATO, as well as the logs of their respective
- the name and nationality of the military vessel located
at around 24 miles from the boat;
- the details of any communications between NATO Naples
Headquarters and the Méndez Núñez and
the ITS Etna, and also the
vessel 24 miles away. Most importantly, I am attempting to ascertain
the specific considerations and decision-making processes that led
to these vessels taking no action.
121 On 8 March 2012, I received a reply from the Spanish Minister
of Defence assuring me that the Méndez Núñez “never
had any contact at all with [the] vessel adrift” and that it “never
was at the distance of 11 nautical miles” referred to in my letter.
Furthermore, the ministry added that “this frigate did not receive
any fax from MRCC Rome or any other communication” regarding the
matter mentioned in my letter. Finally, the ministry underlined
that the helicopter from the frigate “did not overfly, and consequently
had no chance to provide any assistance to the boat”.
122 While I was aware that the Rome MRCC did not contact the military
vessels directly, I have to conclude that NATO Naples Headquarters
did receive the distress fax. Whether they passed it on to vessels
operating under its command is unclear and contradictory. NATO confirms
to me that they did, while the Spanish authorities contradict this
saying that they did not receive the message. I also have difficulties
in understanding how the Méndez Núñez, and
other vessels, could not have received the general Inmarsat and
Hydrolant distress messages which were sent to all vessels in the
123 The letter from the Spanish Minister of Defence, while stating
that the Méndez Núñez was
never at a distance of 11 nautical miles from the boat, does not
provide me with its exact position. It is highly likely that it was
nevertheless extremely close to the boat.
124 Without full information on this matter it is difficult to
conclude on the responsibility of NATO or boats under national command.
It is, however, clear to me that there was a failure by NATO to
react to the distress signals. Bearing in mind that the Italian
MRCC had no independent way of identifying military vessels in the area
or having direct contact with them, it was up to NATO to take action.
Furthermore, the helicopter that went to the aid of the boat and
then disappeared had to be attached to some military vessel. No
explanation has come forward from any quarter recognising the role
of the helicopter or explaining the lack of follow-up to its mission,
including the lack of communication with the MRCC about this flight.
4.5 Was there a failure to prepare
for the consequences of the Libyan conflict by the United Nations
“Before starting a war, you
have to know: Where do you put the prisoners? Where do you put the
dead? What do you do with the refugees?”Note
126 This statement sums up my concern with the overall manner
in which the exodus of migrants, asylum seekers and refugees from
Libya was handled by the international community.
127 United Nations Security Council Resolution 1970, adopted on
26 February 2011, followed by Security Council Resolution 1973 on
17 March 2011, created the basis for the agreement to launch NATO’s
Operation Unified Protector. Surprisingly, these resolutions contain
minimal references to persons forced to leave Libya as a result
of the conflict and violence.
128 For several years Libya was known to be one of the main departure
points for thousands of refugees, asylum seekers and migrants trying
to reach Europe. Furthermore, there were public threats by Colonel Gaddafi
that Europe would be flooded with immigrants. The exodus was therefore
not a surprise and should have been catered for, including in terms
of preparations for rescue at sea, particularly in Libya’s SAR zone. There
should have been greater clarity in terms of responsibilities for
co-ordination and co-operation, particularly between MRCCs, NATO
and States with military vessels in the region. Adequate resources
should also have been made available for sea rescue operations and
reception of mixed flows of migrants, asylum seekers and refugees.
129 NATO’s extensive presence in the region seems to have been
planned and implemented with insufficient consideration of search
and rescue structures. I understand that the Rome MRCC did not consider
that its SAR responsibilities extended to military vessels operating
under NATO command. When informed of the Méndez Núñez’s
location, the Rome MRCC concluded that it must have received the
Inmarsat-C alert, but stopped short of taking further specific action.
4.6 Was there a failure on the
side of the Libyan authorities?
130 Even in times of war, a State
has the responsibility for the safety of civilians, be this on land
or at sea. Libya can therefore not be absolved of all responsibility
on this matter.
131 Furthermore, Libya breached all international obligations
by encouraging and even forcing the migrants, asylum seekers and
refugees to take the dangerous sea route. Not only did Colonel Gaddafi
threaten Europe that he would put these people to sea, it actually
happened. In the case in question the survivors told me how the
military accompanied them to the boat. On other occasions, I have
listened to vivid testimonies of people being forced at gunpoint
to embark on unseaworthy boats heading towards Lampedusa. There
is no doubt that there was a massive failure on the side of Colonel
Gaddafi’s Libyan authorities and that they therefore also carry
a heavy share of the responsibility for the deaths on this boat.
At the same time, Gaddafi also threatened the refugees in Libya
by forcing them to support his regime. As the rebels suspected the
refugees originating from sub-Saharan Africa of supporting Gaddafi,
many of them chose to flee.
4.7 Was there a failure on the
side of the smugglers?
132 The conclusion here is simple.
The smugglers showed reckless disregard for the lives of the migrants. To
make money, they overloaded the boat, they took away food and water,
they did not provide sufficient fuel and they did not provide adequate
means of communication in case of distress. Furthermore, the so-called “captain”
of the boat was clearly unqualified to get the boat to Lampedusa.
5 Who is responsible?
5.1 A collective failure
133 As can be seen from the answers
to the seven questions posed: there were failures at every step
of the way and by all key actors. There was a collective failure
of NATO, the United Nations and individual States in planning the
Libyan military operations and preparing for an expected exodus
by sea. There was a failure in co-ordinating the specific rescue
of the boat, despite the fact that a distress signal had been sent
and the co-ordinates of the boat had been logged. This failure was
in part due to the lack of clarity for responsibility under maritime
law and in part due to lack of co-ordination by the Italian or the
Maltese maritime rescue control centres with other actors in the
region in the absence of a functioning Libyan MRCC. The Rome MRCC broadcast
an emergency call over a long period of time, but failed to ensure
that the boat was rescued. Yet, as the first authority to be informed
about their difficulties, and in view of the obviously ineffective
Libyan SAR, the Rome MRCC can be regarded as the first authority
responsible for ensuring their rescue. The Méndez
Núñez and the ITS Borsini,
although in the near vicinity of the boat, failed to go to its assistance,
thereby engaging the responsibility of both NATO and their respective
flagship countries (Spain and Italy). The Libyan authorities were
responsible not only for what they did not do (maintain responsibility
for their SAR zone), but more worryingly for what they did do (directly
or indirectly forcing persons to climb in boats and flee Libya).
The smugglers showed reckless disregard for the lives of the persons
who boarded the boat. The boat was spotted and photographed by a
plane. The existence of a packed rubber dingy in the middle of the
Mediterranean, even if under propulsion, should have been a signal
for high alert.
134 What concerns me most, however, are the allegations that the
boat was ignored by a helicopter and a military vessel. A helicopter
provided food and water and then disappeared. Neither NATO nor any
State has come forward to provide information as to the identity
of the helicopter and the actions taken by it and its command. Similarly,
no one has come forward with the possible identity of the military
vessel which ignored the calls for assistance from the survivors
of the boat in distress about ten days into its trip.
135 At the time of writing, there exist a number of information
gaps and certain questions remain unanswered.
136 Some information is not available because of the passage of
time and the unavailability of data. In other cases, information
gaps exist because specific questions to specific agencies and authorities
remain unanswered, despite the gravity of the incident. At the core
of these gaps are three of the investigation’s most fundamental
questions. The first is the State responsible for the helicopter
that first assisted the boat in distress. The second is the State
responsible for the military vessel that ignored the plight of the
survivors and, thirdly, a question which should be simple to answer,
whether the military and air vessels concerned were under national
or NATO command.
5.2 Which helicopter left the
boat to die?
137 All of the survivors, including
those interviewed by other agencies and individuals, corroborate
the story that a military helicopter approached them and lowered
water and biscuits onto the boat using a rope. Although the survivors’
accounts are almost all consistent in recalling Italian writing
on the water bottles and possibly also on the biscuit packaging,
this information, while pointing a finger towards an Italian vessel,
is not conclusive. For example, the water and biscuits could have
been loaded onto a foreign vessel in an Italian port. Every military
asset should in principle maintain a detailed log of all material
boarded, transported and distributed. I am certain that if a military
helicopter distributed water and biscuits, the log would show this. Access
to these logs would therefore facilitate the determination of whether
or not helicopters operating in the region were or were not involved
in the incident.
138 The helicopter must almost certainly have come from a ship.
From the information I gathered, I can state that at least two military
ships under NATO or national command were in close proximity to
the boat at the time the distress call was made. These boats were
the Spanish ship Méndez Núñez and
the Italian ship ITS Borsini; both
have aircraft facilities, which means that they are capable of launching
139 As noted above, NATO’s written reply to my letter of 8 December
states that “based on a review of existing records in NATO operational
headquarters, there is no record of any aircraft or ship under NATO command
having seen or made contact with the small boat in question”.
140 In the light of the information I have received concerning
the whereabouts of the Méndez Núñez and
the ITS Etna, I have sent
a further letter to NATO and the Spanish authorities asking for
information on the precise location of these ships and the detailed
logs of their respective helicopters. As stated above, the Spanish Minister
of Defence replied to me that the helicopter from the Méndez Núñez “did not overfly, and
consequently had no chance to provide any assistance to the boat”.
NATO replied, as already mentioned above, that the ITS Etna was not in the region but
that the ITS Borsini was 37
miles away. No mention is made in this reply of the ITS Borsini helicopter activities
or its rescue activities.
5.3 Which military vessel ignored
the calls for assistance?
141 To try and identify the large
military vessel I sought the co-operation of the European Union,
whose Satellite Centre (EUSC) gathers a great deal of data and pictures
across the globe. A letter was therefore sent to Lady Ashton, the
High Representative of the European Union for Foreign Affairs and
Security Policy and Vice-President of the European Commission.
142 On 19 March, I received Lady Ashton’s reply which states that
the European Union Satellite Centre does not have archived products
available for the indicated area and the indicated time frame. It
continues stating that “Considering that the area of interest for
which your requested imagery is located less than 130 km from the
Libyan shores and that the period under investigation coincides
with the NATO operation ‘Unified Protector’, the envisaged investigation
could involve classified ‘NATO CONFIDENTIAL’ information. I would therefore
suggest that the committee requests assistance from NATO, including
through the NATO Parliamentary Assembly.” This implies that satellite
data and imagery might be available, but only to NATO.
143 Access to satellite imagery of the area would be an invaluable
tool to identify the location of ships and assets at the time. Military
vessels are certainly large enough to be spotted, and possibly identified
from such data. There is little doubt that a region in which NATO
military operations were ongoing was monitored by satellite and
NATO must have access to this information.
144 I asked the Rome and Malta MRCCs' assistance in trying to
reconstruct as accurately as possible the drifting itinerary of
the boat. While Rome replied that the backtracking calculation of
the itinerary is very difficult considering the high number of variables
and unknown elements, Malta did not reply.
145 I was nevertheless provided with a drift model by Goldsmiths,
Centre for Research Architecture (see Appendix 1). It gives a rather
precise indication of the whereabouts of the boat during its drifting
back to Libya.
146 A number of States have responded saying that they had no
military vessels in the area during the specific time frame in question.
These replies were received from Canada, France, Greece, Italy,
Romania and Turkey. However, in the Italian Ministry of Defence’s
reply, I was invited to contact NATO concerning Italian assets under
its command. This was the case for the ITS
Etna and I thus addressed NATO specifically to obtain clarification.
I have received clarification regarding the ITS
Etna, but a number of questions remain outstanding as
regards the ITS Borsini. This
illustrates how responsibility is easily shifted back and forth
at national and supranational level.
147 The United Kingdom and the United States have not yet replied
to my letters.
148 The replies I have received so far do not allow me to identify
the vessel. However, I have no doubt that this information is available.
NATO certainly has access to the detailed logs of the vessels participating
in its operations. Until I receive adequate replies, I have no option
but to reach the conclusion that one of these States’ vessels could
be responsible for ignoring the calls for assistance from the boat
in distress. Whatever the nationality of the vessel, it must have
been under the command of NATO, as at that time all vessels in the area
were under NATO command. NATO must therefore take responsibility
for the ship’s ignoring the calls for assistance from the “left-to-die
149 Here again, NATO’s reply states that it has no record of any
ship under NATO command having seen or made contact with the boat.
150 As stated at the beginning
of this report, I have an immense respect for those persons who
work to save lives in dangerous conditions at sea. Thousands of
lives have been saved and will continue to be saved thanks to their
courage and dedication.
151 At no point during the preparation of my investigation and
report did anyone question the basic obligation to rescue at sea.
This obligation is known to every shipmaster, professional or amateur.
152 Nevertheless, too many persons have lost their lives in circumstances
similar to the 63 persons on board the “left-to-die boat”. With
this investigation, it is hoped that this striking story will also
draw attention to the many other tragedies of this kind.
153 Things went terribly wrong for the passengers of the boat
which is the subject of this investigation. These people did not
need to die. If different actors had intervened or had intervened
correctly, they could have been rescued on several occasions. More
has to be done to avoid people dying in their desperate attempts
to reach Europe.
154 In the specific case in question, I will continue to look
for answers. Those responsible have to be called to account and
the incident needs to serve as a reminder that there are gaps in
both law and practice concerning rescue at sea which need to be
155 The Mediterranean is one of the busiest seas in the world,
and at the same time one of the best monitored. Yet, in 2011, the
Mediterranean was also the sea in which the most people disappeared.
I am not talking about somewhere in the middle of the Pacific, but
about the Canal of Sicily which is full of ships, with many radars
and with satellite imagery available. This boat could and should
certainly have been rescued and not left to wash up on the shores
of Libya with only a handful of survivors.
on the survivors
Without the willingness of
the survivors to share their stories, this investigation would have
no foundation. Some of them lost loved ones on their journey, all
of them have to live with physical and psychological scars from
the traumatic trip and build new lives.
- Bilal Yacoub Idris, 30 years old, is Ethiopian. He took
another boat and reached Italy, where he now lives in a centre for
asylum seekers. His claim for asylum is still pending.
- Ghirma Halefom is Eritrean. He arrived in Lampedusa in
June 2011 and now lives in a centre for asylum seekers near Turin.
His claim for asylum is still pending.
- Dain Haile Gebre is Eritrean. He now lives in Italy, where
he has been granted asylum.
- Abu Kurke Kebato, 23 years old, claimed asylum in Italy.
Later he moved to the Netherlands together with his wife, where
he made a further claim for asylum, which is still pending.
- Mahmmd Ahmed Ibrhaim, 23 years old, Kabbadi Asfao Dadi,
19 years old, and Elias Mohammed Kadi, 23 years old, are Ethiopian.
They live in the Choucha refugee camp in Tunisia. They have been
granted asylum and will be resettled to Australia.
- Filmon Weldemichail Teklegergis, who used to call himself
Johannes, is Ethiopian. He lives in Norway where his first claim
for asylum has been rejected. The appeal procedure is pending.
- Mariam Moussa Jamal, 22 years old and Ethiopian, is the
only female survivor of the tragedy. After having spent several
months in the Choucha refugee camp in Tunisia, she was resettled
to Norway by the International Organization for Migration (IOM).