C Explanatory memorandum
by Mr Paulo Pisco, rapporteur
1 Introduction
1. For more than twenty-five years,
there has been a deadly continuous humanitarian crisis in European waters,
where tens of thousands of migrants have perished. The Parliamentary
Assembly has been addressing this humanitarian crisis for many years.
Note This report is based on two motions
for resolutions, one tabled on 11 October 2022 and the other on
11 December 2023, both of which recall the tragedies of migrants
who have died at sea, entitled respectively “Protecting human rights
and saving lives in the North Sea and the English Channel” (Doc.
15630) and “Saving migrants’ lives at sea and protecting their human
rights” (Doc. 15881). The Committee on Migration, Refugees and Displaced
Persons was seized for report on this issue on 22 January 2024,
and I was appointed rapporteur on 16 April 2024.
2. This tragedy resulting from migrants’ lives lost in European
waters is an indignity to our civilisation and must not be tolerated.
The International Organization for Migration’s (IOM) Missing Migrants
Project estimates
Note that over 31 000 migrants perished
or disappeared trying to reach Europe via the Mediterranean Sea
between 2014 and February 2025.
3. While binding international rules and standards regulate safety
at sea (first part of the report), the continuing humanitarian crisis
at sea has led to left-to-die situations in European waters with
the loss of countless lives across almost all European waters (second
part of the report). Such a crisis can nonetheless be overcome by
implementing strong public policies aimed at preventing deaths at
sea, improving search-and- rescue missions and better protecting
migrants’ fundamental rights (third part of the report).
4. Considering the cross-cutting nature of this report, it is
relevant to mention that colleagues have highlighted similar concerns
in their respective work. The report prepared by my colleague Ms Sandra
Zampa (Italy, SOC) entitled “The challenges and needs of public
and private actors in migration management” deals with the situation
of those assisting migrants and refugees at congestion points and
in reception centres. Likewise, the report does not address the
matter of missing migrants, covered by
Resolution 2569 (2024) “Missing migrants, refugees, and asylum seekers – A
call to clarify their fate”. Furthermore, the report examines migrant
smuggling, but does not fully address it, and I thus refer to
Resolution 2568 (2024) “A shared European approach to address migrant smuggling”.
Finally, I refer to
Resolution 2595
(2025) “Putting an end to collective expulsions of aliens”
regarding the issue of collective expulsions and the principle of
non-refoulement. Therefore, my report
explores different facets of the same issues and provides a supplementary
viewpoint in relation to these crucial reports and resolutions.
For the sake of brevity, when the term “migrants” is indicated, it
covers “migrants, asylum seekers and refugees” unless explicitly
otherwise.
2 International rules and standards protecting
the safety of life at sea
5. International institutions
have played a key role in recognising, ensuring and reinforcing
the safety of life at sea. Article 2 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) guarantees the right
to life, including at sea, as ruled by the European Court of Human
Rights (“the Court”) in its 2022 landmark judgment
Safi and Others v. Greece.
Note
6. Indeed, the Court recalls
Note that Article 2, paragraph 1, “enjoins
the State not only to refrain from the intentional and unlawful
taking of life but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (
Centre
for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC],
2014, §130). In broad terms, this positive obligation has two aspects:
(a) the duty to provide a regulatory framework; and (b) the obligation
to take preventive operational measures. ... The Court has found
the positive obligation under Article 2 to take appropriate steps
to safeguard the lives of those within its jurisdiction to apply
in the context of any activity, whether public or not, in which
the right to life may be at stake”.
7. Such positive obligations arose under Article 2 in the context
of an operation to rescue migrants who were drowning while trying
to cross borders at sea, in the case
Safi
and Others v. Greece. The Court found that the investigation
into a coastguard operation in 2014 in the Aegean Sea during which
11 relatives of the migrant applicants who were aboard a fishing
boat drowned was ineffective. Major shortcomings identified by the
Court included the insufficient participation of the applicants
in the criminal proceedings and that there were lines of further
investigation that were clearly necessary but were not pursued by
the prosecuting authorities. In addition, it was found that the
Greek Coast Guard failed to adequately respond to a sinking migrant
boat and found a violation of the Convention on the following grounds:
loss of life among refugees after specific oversights and delays
by national authorities in conducting and organising their rescue
from the capsized boat; refugees brought from the capsized boat
to a Greek island body-searched after being ordered by law enforcement
personnel to disrobe together as a group in front of at least 13
people; and the deaths of some refugees on board as a result of
the sinking not being effectively investigated. Furthermore, the
Court found a violation of Article 3 of the Convention due to the
degrading treatment suffered by certain applicants during their
public strip search by the coast guard on an outdoor basketball
court on the island of Farmakonisi.
Note
8. On 12 February 2025, the Grand Chamber of the Court held hearings
in the cases of
COCG and Others v. Lithuania,
HMM and Others v. Latvia and
RA and Others v. Poland, which concerned
allegations that each of the three named States carried out summary
returns of asylum seekers across the border to Belarus. In addition
to 11 member States who intervened as third parties for the respondent
States, represented by Finland on the day of the hearing, and an
equally impressive number of NGOs, the Council of Europe Commissioner for
Human Rights, Michael O’Flaherty, also intervened as a third party.
Note
9. In his oral observations, the Commissioner, while recognising
the challenges member States face regarding the irregular arrivals
at borders and the security concerns, underlined that such geopolitical
situations cannot provide a legitimate justification for the violation
of rights that the Convention protects in an absolute manner. The
Commissioner added that in the context of the non-refoulement principle,
the Court has clarified that it cannot be subject to limitation,
either in relation to the challenges faced by States to manage migration or
for national security reasons, or for any other reason. He recalled
the clear case law of the Court establishing that the person’s own
conduct, including their crossing of a border in an irregular manner,
does not diminish the State’s obligations. By this established case
law, the Court thus demonstrates that border protection is not incompatible
with human rights’ protection.
10. At the United Nations (UN) level, additional international
instruments reinforce such commitments and obligations at sea. Ships
are required by international law to rescue people in distress at
sea. The Convention on the Law of the Sea states that any ship “should
proceed with all speed to the assistance of persons in distress
at sea” (Article 98). The UN International Convention on Maritime
Search and Rescue and the UN Convention for the Safety of Life at
Sea also reinforce States’ commitments regarding the safety of life
at sea. This is also recalled in the recommendations of the UN Secretary
General on missing migrants and migrants in distress contained in
his last report on the implementation of the Global Compact for
Safe, Orderly and Regular Migration.
Note Moreover, the principle of
non-refoulement, a principle of
customary international law recognised
inter
alia by the 1951 UN Convention relating to the Status
of Refugees and in the jurisprudence of the Court under Article 3,
prohibits returning people to countries where they face danger.
11. Since its creation, the International Maritime Organization
(IMO) has developed rules for the safety of life at sea. It called
“for greater focus to be placed on addressing unsafe migration by
sea so that fewer lives are lost due to large numbers of people
setting out to cross the sea in overcrowded and unseaworthy vessels.”
Note Moreover, it urged “concerted action
by the international community to tackle unsafe, mixed migration
by sea, in the Mediterranean and other sea areas... [T]he IMO Assembly
adopted Resolution A.920(22) on
Review
of safety measures and procedures for the treatment of persons rescued
at sea which recommends reviewing measures and procedures for
the treatment of rescued persons, ensuring that the life of persons
on board ships is safeguarded and that coastal communities assist
them satisfactorily.” The IMO has furthermore issued a circular
entitled “Interim measures for combating unsafe practices associated
with the trafficking, smuggling or transport of migrants by sea”.
It also adopted in November 2022, at the Maritime Safety Committee’s
106th session, a resolution on recommended
co-operation to ensure the safety of life at sea, the rescue of
persons in distress at sea and the safe disembarkation of survivors.
It emphasises the importance of effective and timely involvement
of governments in cases of migrant rescues at sea by merchant ships,
emphasising the need for co-operation in all phases of search and
rescue (SAR), and of minimising the time survivors remain aboard
the ship rendering assistance, and notes that according to international
law, a search-and-rescue operation is not concluded until the survivors
have been disembarked and delivered to a place of safety.
Note The IMO Maritime Safety Committee had
also issued the Guidelines on the Treatment of Persons Rescued at
Sea (MSC.167(78), which defines a place of safety as “a location
where the survivors’ safety of life is no longer threatened, and
their basic human needs (such as food, shelter, and medical care)
can be met”.
12. At the European Union level, the European Commission’s Recommendation
(EU) 2020/1365
Note promotes improved information sharing
and co-ordination in European Union SAR operations. It specifically targets
co-operation between European Union member States and relevant stakeholders,
focusing on privately owned rescue vessels. Based on this recommendation,
the European Commission established in 2021 the European Contact
Group on Search and Rescue.
Note This platform aims to implement
the existing legal framework and the evolving SAR practice among
European Union members and Schengen Associated States. The European
Commission moreover co-ordinates the relocation of rescued people
across the European Union and promotes solidarity and co-operation
among member States.
Note
13. Regarding the safe third-country concept, it is useful to
refer to
Recommendation No. R(97)22 of the Committee of Ministers of the Council of Europe
to member States of the Council of Europe containing guidelines
on the application of the safe third country concept, which lists
the necessary preconditions for defining a country as a safe destination
in the context of asylum issues.
Note Based on the Assembly
Recommendation 2238 (2022) “Safe third countries for asylum seekers”, the Committee
of Ministers is currently evaluating the need for and feasibility
of updating Recommendation No. R(97)22 (
see reply to recommendation Doc. 15874). Furthermore, the landmark case
Ilias
and Ahmed v. Hungary [GC] ruled on by the European Court
of Human Rights sets the general principles of protection against
refoulement and inhuman or degrading
treatment of asylum applicants prior to applying the safe third-country
concept. A thorough examination must be conducted to confirm that
there is no risk that an asylum applicant is deprived access to the
asylum procedure in the third country and that the applicant is
not at risk of expulsion or
refoulement in
the third country, even if the third country is a European Union
member State or a Party to the Convention. According to the Court,
the asylum applicant is not to be removed to a third country if
there are insufficient guarantees against
refoulement.
Note
14. There are thus strong existing international rules aimed at
ensuring the safety of life at sea in European waters. Whereas territorial
waters only extend 12 nautical miles, the set of obligations referred
to above extend to international waters as well, which are much
larger, and where most shipwrecks happen. There is nonetheless still
room for improvement in their concrete implementation, which is
mainly left to the will of, and measures taken by, member States.
3 A
continuing humanitarian crisis at sea and left-to-die situations
in European waters
15. Migrants risk their lives in
European waters to escape persecution, conflict, violence, human
rights abuses, and situations that significantly threaten survival
and public order, including climate change. Tragedies at sea keep
repeating themselves, and the regular shipwrecks and failed attempts
to cross European waters are countless. The report will avoid a
sad inventory; resources such as the IOM Missing Migrants Project thoroughly
document these numerous cases.
Note
16. But there have been several turning points in the recent history
of migrants’ deaths in European waters. The Adriana shipwreck
that occurred on 14 June 2023 in Greece is a recent and symptomatic
example. Over 600 adults and children perished. The victims – in
common with all those dying at sea during migration – had left their
home fleeing dire conditions, seeking safety and a decent life.
Each one of them had a name, a family, and a dignity, which all
disappeared in those waters.
17. “European countries are failing to protect refugees and migrants
trying to reach Europe via the Mediterranean. Backsliding in the
protection of the lives and rights of refugees and migrants is worsening
and causing thousands of avoidable deaths each year”, said in March
2021 the then Council of Europe Commissioner for Human Rights (2018-2024),
Ms Dunja Mijatović.
Note This statement is one of the
numerous calls from international and non-governmental institutions
witnessing the regular crossing of migrants in European waters.
3.1 The
dangerous migration sea routes in Europe
18. A vast number of migrants reach
Europe by sea.
Note These migration sea routes are dangerous
and lead to high mortality rates. Several factors contribute to
this, including long distances travelled from the country of origin,
rough waters, unseaworthy and overcrowded boats, risks of interception
or drowning, and bad weather. By going through such perilous journeys,
European waters have become a graveyard for thousands of migrants
each year. In any circumstance, this must never be tolerable.
19. The Central Mediterranean route is used by migrants from North
Africa, especially Libya and Tunisia, to reach Italy and Malta,
despite barely any arrivals in Malta for a number of years. Migrants
mostly come from sub-Saharan Africa, Nigeria, Sudan, Eritrea and
Gambia. They also come from North Africa and South Asia, Bangladesh
and Pakistan. According to preliminary data published by the European
Border and Coast Guard Agency (Frontex),
Note there was in 2024 a 59% decrease
in the number of recorded crossings on the central Mediterranean
route compared to 2023, due to fewer departures from Tunisia and
Libya. Despite this decrease and the necessity to understand the
causes of such a decrease, Frontex still recorded 66 766 crossings
via this particular route, making it the second most widely used
in 2024 after the eastern Mediterranean/Türkiye-Greece route.
20. The western Mediterranean route is taken by migrants hoping
to reach Europe through Spain. They cross the Alboran Sea or the
Strait of Gibraltar and mainly come from Morocco, Algeria and West
Africa. In 2023, over 280 000 people departed from North Africa
on dangerous sea journeys to Europe through the west and central
Mediterranean areas, 58% more than in 2022.
Note According to the same data, over
a quarter of those who departed were intercepted and disembarked
in North Africa, not in Europe, and over 3 300 died.
21. The migrants fleeing Syria, Afghanistan and other conflict
zones in this region take the eastern Mediterranean/Türkiye-Greece
route. These people arrive in Türkiye and reach Greece through the
Aegean islands, notably Rhodes, Lesbos, Chios, and Samos. Over 2 500 migrants
have died between 2014 and 2024 on this migration sea route.
NoteNote
22. The Western African/Atlantic route is taken by migrants attempting
to reach Spain’s Canary Islands by crossing the Atlantic. These
people are from West Africa, especially Senegal, Mauritania and
Gambia. The route is divided into three separate sub-routes, comprising
the Agadir/Dakhla, Mauritanian and Senegal-Gambia routes. The Atlantic
route to the Canary Islands saw record arrivals in 2024 and has
also proved to be one of the most dangerous and deadliest routes
in the world, with some 46 877 irregular arrivals recorded in 2024,
according to Frontex.
NoteNoteNoteNote This represents an 18% increase
compared to the previous year and the highest figure since Frontex
began collecting data in 2009. A report from NGO
Ca-Minando Fronteras has revealed that
at least 10 457 people died or disappeared trying to reach Spain
via migration sea routes in 2024. According to the report, this
represents a 58% increase from the previous year. That report identified
the Atlantic route as “the most lethal in the world”, responsible
for 93% of recorded casualties. “An average of 30 lives have been
lost every day [in 2024] because migration politics have been prioritised
over human rights”, Ca-Minando Fronteras posted on the X social
media site.
NoteNote
23. Despite the short distance of the English Channel migration
route, the journey is extremely dangerous because of strong tides,
unpredictable weather, busy shipping lanes and cold waters. In recent
years, increasing numbers of migrants have attempted to cross the
Channel on small boats.
NoteNote The United Kingdom and
France have intensified patrols, but crossings continue. In 2023
and 2024, 31 079 migrants were detected arriving by small boat.
Note Of the migrants, 19% were Afghan,
12% Iranian and 11% Turkish. In 2024, 6 310 migrants were rescued
at sea in the Pas-de-Calais (France) a 30% increase from the previous
year, according to France’s Channel and North Sea Maritime Prefecture’s
Operational Review. In the same year, 45 203 migrants were involved
in an assistance or rescue operation at sea in the Channel (+26%).
Note
3.2 The
end of large-scale search-and-rescue missions in European waters
24. The Mediterranean is symptomatic
of the evolution in SAR policies in European waters. On 3 October 2013,
368 people died in a shipwreck off Lampedusa. A second shipwreck
occurred on 11 October 2013, in which 268 people died. These tragedies
marked a turning point in European SAR policies.
25. Following these tragedies, Italy, with European Union support,
launched the
Mare Nostrum rescue mission
on 18 October 2013. This State-run operation used the navy and coast
guards to address the humanitarian crisis in the Strait of Sicily.
The operation ended on 31 October 2014 and was replaced by
Operation Triton,
Note a much more limited initiative launched
by the Council of the European Union, with fewer and smaller ships,
a much smaller operational area and a mandate focused on border
control, which lasted until 2018.
26. In the following months, several shipwrecks occurred, culminating
in two tragedies on 12 and 18 April 2015, in which approximately
1 400 people died.
Note In response, the European Union
launched, on 18 May 2015, the European Union Naval Force Mediterranean,
EunavforMed Operation, later re-labelled as Operation Sophia. This
European Union military operation was established to neutralise
established migrant smuggling routes in the Mediterranean. Both
Triton and Sophia’s missions rescued over 100 000 migrants between
2015 and 2016.
27. Beyond the tragic shipwrecks in 2013 and 2015, many other
smaller tragedies occur, with many small boats sinking across European
waters, generally with little reaction.
28. The European Union and its member States, through changing
operations, have largely abandoned their initial life-saving goal,
favouring coastal patrols and the training of Libyan coast guards.
In 2016, in the absence of large-scale SAR missions, but also because
of the high number of people crossing, the number of deaths increased.
In 2017 and 2018, the death toll decreased, as did the number of
attempted crossings, following the co-operation with Libya, which
had however other very negative consequences. In response, numerous
NGOs have committed to SAR operations. To monitor European waters,
NGOs have invested in ships and training for their operators, and
later in planes and drones. Many operate in the Mediterranean; others
in the Atlantic or the English Channel.
29. The weak point for both public and private SAR organisations
is the absence of a unified European SAR strategy. This situation
has left coastal member States like Italy, Greece, Malta and Spain
to handle most SAR operations alone, complemented to some extent
by SAR NGOs.
30. On the occasion of a fact-finding visit carried out to Sicily
between 16 and 18 September 2024, I was present at Lampedusa port
on 16 September 2024 to witness, together with the other Assembly
members as part of the delegation, the disembarkation of approximately
70 migrants arriving from Libya who were rescued by the Lampedusa
Coast Guard. Four of the migrants who had been in the rescued boat
died because of the inhalation of toxic engine smoke. The parliamentarians
were impressed both by the rescued migrants in shock and by the
efficient handling of the disembarkation process.
31. I wish to honour the bravery of all those working to save
migrants’ lives in European waters, including the various European
coast guard authorities, NGOs and volunteers. All these people risk
their own lives to save others.
3.3 Obstacles
to and criminalisation of search-and-rescue NGOs
32. The coast guard authorities
of coastal member States most certainly play a significant role
in saving migrants’ lives at sea. State-led SAR efforts are moreover
supplemented by many NGOs and volunteers. To manage such challenging
operations efficiently, NGOs and volunteers should be able to act
in all European waters with no obstacles, provided they respect
international maritime and humanitarian law. As the humanitarian
organisation SOS Méditerranée states, all operations are conducted
in strict accordance with such international obligations, and in
liaison with competent authorities;
Note all SAR NGOs share this approach.
33. However, rather than co-operating with these organisations,
some member States have imposed ever more stringent legal and administrative
measures to disrupt NGOs’ SAR operations. Many humanitarian vessels
thus face legal restrictions, being impounded, or fines, reducing
their ability to operate. Legal and administrative restrictions
on SAR NGOs begin with the seizure of rescue vessels, citing reasons
such as improper registration or port regulation violations.
Note Some countries also require NGOs
to obtain special permits or to co-ordinate with State agencies,
which delays their ability to respond to distress calls. Recent Italian
laws and practices have imposed strict regulations on NGO rescue
ships, requiring them to dock at distant ports instead of the nearest
safe harbour. In addition, NGOs must not respond to additional distress calls
on their way to a port, regardless of their capacity and position
to the boat in distress. This increases travel time and delays their
return to rescue zones, increasing the risk of people drowning before
receiving assistance, not to mention the fact that complying becomes
more expensive.
Note
34. The European Union Agency for Fundamental Rights has made
similar observations: “Several rescue vessels deployed by civil
society organisations were unable to carry out SAR operations following
inspections, investigations or the detention of ships by port authorities.
In other cases, crew members or civil society actors faced criminal
proceedings related to their SAR activities. Such criminal proceedings,
as well as administrative measures against deployed vessels – like
blocking ships in ports due to alleged technical irregularities
relating to maritime security or temporarily detaining them for
contravening national law – have a chilling effect and intimidate
civil society actors”. The agency added: “Since 2017, Germany, Italy,
Malta, the Netherlands and Spain have initiated 81 administrative
or criminal proceedings in total affecting SAR operations by civil
society actors. The majority concern measures against SAR vessels;
only one out of five measures concern criminal proceedings against
the staff working for the NGOs deploying the vessels or against
the crew.”
Note
35. On 17 October 2024, a representative of the NGO Sea-Eye testified
before the committee and stated that following their March 2024
rescue mission, Sea-Eye was the first organisation to have a ship
detained for 60 days, halting Mediterranean operations. This detention
raised concerns about constitutionality, in relation to the principles
of proportionality and reasonableness.
36. While national policies aimed at protecting land and maritime
borders are completely legitimate, administrative obstacles and
legal actions vis-à-vis private-led SAR operations can have a chilling
effect on SAR operations by diverting the NGOs away from their objective
and forcing them to waste time and resources.
3.4 Criminal
networks of migrant smugglers versus legal pathways
37. The absence of safe legal pathways
is the one of the main root causes of migrant smugglers’ existence. Another
is the protection and complicity of local authorities. It is clear
that most people would prefer to migrate using safe and regular
means instead of dangerous routes.
Note Over the years, European border
security has tightened, and legal pathways to Europe remain limited.
The need for wider access to legal pathways to migration as an effective
policy measure is enshrined in the UN Global Compact on safe, orderly,
and regular migration, which so far only 28 member States of the
Council of Europe have endorsed. The European Commission has also
launched an initiative to “expand labour migration pathways, as
part of its overarching approach to migration management and its
focus on reducing irregular migration”.
Note Visa restrictions and long asylum
processes may be considered as factors that push migrants to prefer
irregular means of entry, leaving them at the mercy of migrant smugglers.
38. These factors create a window of opportunity for criminal
networks, who exploit these restrictions by offering clandestine
routes. To profit from the ready demand, migrant smugglers became
well-structured criminal organisations.
Note They have transnational businesses
and networks covering multiple countries, including with connections
with migrants’ countries of origin, to ease extortion procedures.
Moreover, they have established profitable systems and face minimal
risk of being apprehended, as underlined for instance by the Council
of the European Union.
Note To facilitate such journeys, these
criminal networks may offer additional services to migrants, such
as accommodation in stash houses and hotels, delivery of fraudulent
documents, sometimes with the complicity of corrupt officials, and
access via corrupt officials in transit countries with a failing
law-enforcement system, such as Libya.
39. By prioritising profit over human lives, migrant smugglers
play a major role in the deadly expeditions in European waters.
To escape patrols, smugglers use riskier routes. To maximise profit,
they provide migrants with unseaworthy boats, with limited flotation
devices in case of capsizing, often overcrowded and lacking life vests
or sufficient fuel. They furthermore often force migrants onto boats
at gunpoint, leaving them with no choice but to embark.
Note They promise safe passage while
abandoning them at sea.
Note Despite such dire conditions, smugglers
are often the only way for migrants to reach their destinations.
3.5 The
persistent threat and violation of international law
40. Governments often use the argument
that SAR NGOs attract migrants, encouraging riskier sea crossings,
a sort of “pull factor”, increasing the number of migrants and empowering
smugglers. However, research refutes the assertion that SAR operations
increase migration. Instead, studies show that conflict, violence,
and persecution are the primary push factors.
Note This is acknowledged by the current
Frontex Director Hans Leijtens, who has affirmed that NGO rescue
missions in the Mediterranean are “not a pull factor” for migrants.
“You have never heard me saying that it’s a pull factor. So that’s
what my opinion is”, he is quoted as saying.
Note Heard by the Committee on Migration,
Refugees and Displaced Persons on 24 June 2024, the Frontex Director
told parliamentarians that human rights are not antithetical to
effective border management. He stated that since his appointment,
there had been no reports of potential pushbacks. He added that
the Fundamental Rights Officer at Frontex is mandated to provide
an independent opinion in relation to allegations of wrongdoing.
41. Although there are some positive developments under the current
Frontex direction, the role of Frontex has also been criticised
by different SAR actors, notably for rarely issuing mayday alerts
or informing NGO rescue ships. Rather, it has been alleged that
Frontex has shared boat locations with the Libyan Coast Guard, thereby
facilitating pushbacks to unsafe conditions in Libya. The case of
the
Adriana shipwreck is symptomatic of
such a failed system.
Note Frontex identified the ship to
be in distress in Greece’s SAR zone. However, it failed to use its
autonomous power to issue a “mayday call”. By the time approval
was granted to carry out a rescue mission, the ship had already
half capsized and caused the death of 600 migrants.
42. Lighthouse Reports, a respected investigative journalism organisation,
has made allegations about unlawful activities by Frontex in the
central Mediterranean. Its director, Klaas van Dijken, testified
before the Committee on Migration, Refugees and Displaced Persons
on 9 December 2024, detailing Frontex’s direct role in Libyan Coast
Guard interceptions. Another investigation from Lighthouse Reports
revealed that Frontex had shared locations of migrant boats with
the Libyan Coast Guard over 2 000 times in three years, despite watching
them whip, beat and shoot at passengers.
NoteNote This includes, according to Lighthouse
Reports, sharing by Frontex of the co-ordinates of migrant boats
with the Libyan militia, the Tareq Bin Ziyad Brigade, known for its
links with Wagner mercenaries and Al-Qaeda. In an internal report,
Frontex wrote that the Tareq Bin Zayed Brigade is part of the Libyan
Coast Guard.
Note What is clear is that neither the
militia group nor the Libyan Coast Guard can detect small boats
on their own: they rely solely on co-ordinates provided by Frontex
and national air operators.
43. Following the report by the European Anti-Fraud Office (OLAF)
on the misconduct of several individuals employed by the agency
in relation to Frontex operational activities in Greece in 2020,
Note the agency reacted in a statement
and explained that such practices were of the past and that it would
take remedial measures.
Note Frontex issued its Management Board
Decision 43/2022 adopting the rules for the Executive Director and
the Management Board to inform the Consultative Forum of the follow-up
to its recommendations and to ensure that action is taken with regard
to the recommendations of the Fundamental Rights Officer.
Note Through these reactions, Frontex
seems determined to improve its practices and transparency in its
activities.
Note
44. Regarding the behaviour of coast guard authorities, there
have been reports alleging that the Greek and Maltese Coast Guard
have forced migrant boats back to unsafe locations, such as Libya.
Note There are also reports
that the Maltese Coast Guard has on several occasions ignored distress
calls.
Note Such practices could lead to a violation
of the principle of
non-refoulement.
Note
45. The Libyan Coast Guard has been regularly intercepting migrant
boats before they reach European waters, in agreement with the European
Union and member States.
Note There have been reports of violent interception
tactics,
Note including shooting at migrant boats,
Note collaboration with smugglers and
the forcible return of people to Libya. On 17 October 2024, a Sea-Eye
representative told the Committee on Migration, Refugees and Displaced
Persons that the Libyan Coast Guard had repeatedly obstructed rescue
operations, endangering migrants, including by firing warning shots.
Note
46. In its last mission report regarding European Union Libya
co-operation, the Independent Fact-Finding Mission on Libya of the
United Nations Human Rights Council mentioned a link between crimes
against migrants in Libya and the support provided by member States
and the European Union. The mission “has reasonable grounds to believe
that crimes against humanity are being committed against migrants
in Libya. Migrants are subjected to widespread and systematic arbitrary
detention. Acts of murder, enforced disappearance, torture, enslavement,
sexual violence, rape, and other inhumane acts are being committed
in connection with their arbitrary detention. The ongoing, systematic
and widespread character of these practices by DCIM [the Directorate
for Combating Illegal Migration] and other actors involved reflects
that mid- to senior- level officials are participating in the migration
cycle of violence.”
NoteNote
47. Among many other sources, Lighthouse Reports gathered testimonies
from migrants heavily tortured by the militia and then sold into
slavery. For instance, Jamal, a Syrian whose name has been changed
for his protection, was intercepted at sea on 25 May 2023. He explained
he was then taken “to a big prison” where he and others were beaten
“with sticks and iron” and robbed of all their belongings, including
passports and mobile phones: “There was no water available in the
prison. We drank in the bathroom. They fed us rice, soup or pasta in
small quantities. We were held for 20 days by the Tareq Bin Ziyad
Brigade”.
Note
48. Likewise, Tunisia is not a safe place for migrants. Member
States have given extensive support to Tunisia through bilateral
agreements, for instance France, Italy, Germany, or the United Kingdom.
Note These States have financed, equipped
(boats, vehicles, IT equipment, etc.), and trained Tunisian forces
and its coast guard authority to intercept migrants at sea. But
such supports have coincided with worsening human rights abuses,
including sexual violence, deportations to deserts, and violations
of the
non-refoulement principle.
Note Moreover, since the establishment
of a Tunisian SAR Zone in June 2024, European Union-backed Tunisian coast
guard operations have increased, often involving violent and dangerous
tactics.
Note
49. Following a practice that is, unfortunately, more and more
frequent, the European Union has outsourced SAR operations to the
Tunisian Coast Guard authority (Garde Nationale Maritime).
Note When investigating the European
Union-Tunisia Memorandum of Understanding, the then European Union
Ombudsperson (2013-2024), Emily O’Reilly, concluded that the European
Commission had not assessed the memorandum’s human rights impact
beforehand, but carried out a risk management exercise into human
rights concerns whose findings the European Union did not publish.
Note
50. An international research group (the researchers have chosen
to remain anonymous for their safety), Researchers X, released a
report entitled “State Trafficking: Expulsion and Sale of Migrants
from Tunisia to Libya”.
Note The report describes concerning
instances of systemic State violence, human trafficking, and violations
of international law, all facilitated by border externalisation
policies. The report details the forced expulsion of migrants from
Tunisia to Libya between June 2023 and November 2024. It contains 30 testimonies
from affected individuals and documents the direct involvement of
the Tunisian police and military in the sale of human beings at
the border. The report further exposes the interconnexions between European
Union-funded expulsion infrastructure and the kidnapping industry
operating within Libyan prisons.
Note
51. NGOs and human rights groups have challenged these practices
before the courts, which have dealt with more and more cases of
human rights violations at sea. At the national level, cases have
been initiated in Italy, Germany, and France. The European Court
of Human Rights issued the previously mentioned judgment
Safi and Others v. Greece, in which
it concluded that there had been a violation of the Convention by
the Greek Coast Guard which failed to adequately respond to a sinking
migrant boat.
Note The Court requires all States to establish
independent and effective investigation into migrant deaths at sea.
The essential purpose of such an investigation is to secure the
effective implementation of the domestic laws safeguarding the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their responsibility.
Note There are also ongoing procedures
against Frontex.
Note
52. Omer Shatz, Legal Director of the NGO front-lex,
Note was heard by the Committee on Migration,
Refugees and Displaced Persons on 17 October 2024. He stated that
between 2015 and now, widespread breaches of international refugee,
maritime, and human rights law have targeted migrants, stemming
from European Union and member States’ policies and aimed at preventing
arrivals. Mr Shatz informed the committee about ongoing investigations
by the International Criminal Court into the treatment of migrants
in the central Mediterranean route, with evidence suggesting the
European Union’s facilitation of these crimes.
Note He advocated for a paradigm shift
in the manner in which migration policies of European Union institutions
and European Union member States are understood and enforced in
the Mediterranean, and argued that such violations could amount
to crimes against humanity under international criminal law.
4 Preventing deaths at sea, improving
rescue operations, and better protecting the fundamental rights of
migrants
53. We cannot close our eyes to
the ongoing human tragedy in European waters. This tragedy must
end, primarily by establishing safe legal pathways for migrants
and persons in need of international protection. Furthermore, member
States must protect and recognise European waters as maritime humanitarian
spaces to be regarded as sanctuaries in the name of humanity.
54. With migrant trafficking at its height, and with member States
and international institutions struggling to tackle this crime,
European waters remain partly lawless zones. It is thus urgent to
address and, as far as possible, prevent migrant smuggling. This
starts with the effective enforcement of international treaties.
The Council of Europe Convention on Action against Trafficking in
Human Beings (
CETS
No. 197) is an essential instrument to tackle migrant trafficking,
complemented by the Council of Europe’s expertise in the field.
The acquis from the IMO guidelines is also essential in this regard.
55. Despite solid instruments, migrant smuggling remains the main
path of irregular migration to Europe. Migrants in need of international
protection will continue to flee desperate conditions and, in the
absence of alternative safe legal pathways, will continue to use
these criminal networks. A phenomenon of this scale requires a strong
collective effort to be dismantled.
56. The member States of the Council of Europe and the European
Union must ensure that safe pathways are accessible to reach their
territory, including when people are intercepted in European waters.
It should be recalled that the principle of
non-refoulement applies
across the jurisdiction of all States, including in their territorial
waters. Furthermore, this principle should be fully respected in
contiguous zones and in international waters whenever a seacraft
flying the flag of a European State is exercising control over an
individual, as can be the case during an interception operation,
or when such a seacraft is being tracked, or re-routed in the high seas
(a possibility deriving from Article 7 of European Union Regulation 656/2014,
which Frontex is bound by as per Article 10 of Regulation 2019/1896).
These elements are based on the interpretation by the Court of the notion
of extra-territorial obligations of member States in
Hirsi Jamaa and Others v. Italy.
Note As an addition to the provision
of legal alternatives to migrant smuggling routes, including by
sea on regular sea-crossing routes, ensuring that these obligations
are upheld is essential in order to reduce and hopefully finally
prevent dangerous journeys and the resulting deaths at sea. New
legal frameworks are not needed to establish these paths. The Convention
Relating to the Status of Refugees, the Convention on the Law of
the Sea, and the International Convention for the Safety of Life
at Sea adequately address existing needs. Such paths rather necessitate
a strong political willingness and should be jointly monitored by
international organisations, especially the European Union and UN
agencies (United Nations High Commissioner for Refugees, IOM
Note), coastal member States, and SAR
NGOs to ensure smooth operations and compliance with human rights.
57. Tackling migrant smuggling has resulted in several member
States criminalising smuggled people and humanitarian organisations.
Member States should thus closely consider the recommendations made
in
Resolution 2356 (2020) “Rights and obligations of NGOs assisting refugees and
migrants in Europe” and in
Resolution 2568 (2024) “A shared European approach to address migrant smuggling”.
According to these resolutions, people in need of protection should
never be criminalised or administratively sanctioned for crossing
a border unauthorised pursuant to Article 31 of the Convention relating
to the Status of Refugees and Article 26 of the Council of Europe
Convention on Action against Trafficking in Human Beings.
58. Humanitarian assistance and any support to migrants in accessing
their fundamental rights should therefore be explicitly exempted
from any form of criminal liability, in the cases where such acts
are conducted without seeking any financial benefit, which is obviously
the case for SAR NGOs. This implies strictly defining in domestic
legislation the crime of migrant smuggling and the scope of criminalisation,
in line with the Protocol to Prevent, Suppress and Punish Trafficking
in Persons Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime. The instrument
identifies the need for a for‑profit motive in the definition of
smuggling, with the aim of avoiding the criminalisation of legitimate humanitarian
action.
59. As recommended by the Commissioner for Human Rights: “All
member States are urged to contribute assets specifically dedicated
to SAR activities so that their number and operational reach can
be expanded.” This should lead to sufficiently resourced and fully
operational system for saving lives at sea, commensurate with the
current challenges in the Mediterranean. Vessels should be deployed
along routes where they can make an effective contribution to the
prevention of casualties and are able to safeguard rescued people’s dignified
treatment.” All concerned coastal States should ensure that full
use is made of all search and rescue units and other available facilities
for providing assistance to a person who is, or appears to be, in
distress at sea, including vessels run by NGOs.”
Note
60. Regarding the protection of human rights defenders as a whole,
the Commissioner for Human Rights has issued, in February 2024,
a series of recommendations in its publication “Protecting the Defenders
– Ending repression of human rights defenders assisting refugees,
asylum seekers and migrants in Europe”. To reverse the above-mentioned
repressive trend against human rights defenders, the Commissioner
calls for urgent action, including: reforming laws, policies and
practices unduly interfering with the activities of human rights
defenders; ensuring that smuggling laws do not criminalise any form
of human rights or humanitarian work with refugees, asylum seekers
and migrants; lifting restrictions on access to places and information; ending
stigmatising and derogatory rhetoric; establishing effective safety
procedures for defenders faced with violence and threats and effectively
investigating such incidents.
Note
61. Whereas formal humanitarian corridors exist in war zones to
help people fleeing for safety, similar corridors dedicated to saving
lives at sea are absent. Nevertheless, in the absence of State action,
the work of SAR NGOs could be seen de
facto as maritime humanitarian actions for people in
distress at sea, however with some important restrictions. Such
NGOs provide emergency relief by rescuing people in distress at
sea, who once aboard their ships, receive assistance, but this does
not equate to a systematic, safe and legal route across the sea.
Moreover, the civil fleets conduct a minor part of rescues overall,
and the capacities of NGOs are increasingly restricted by the national
authorities in question and a broader criminalisation across Europe. Moreover,
such NGOs cannot provide a protected escape from Libya or Tunisia,
as a true humanitarian corridor would imply.
62. It is thus crucial not to conflate SAR NGOs’ presence at sea
with safe legal pathways. People attempting to cross European waters
will continue to face life-threatening risks, lack of protection,
and will often be criminalised for their escape. To prevent further
deaths, we must advocate for safe legal pathways for people in need
of protection, such as through the delivery of humanitarian visas,
resettlement programmes, and the activation of temporary protection
mechanisms.
Note And as long as these pathways are
not in place, European coast guard authorities will need more SAR
capacities and a better co-ordination among public and private SAR
actors, through ambitious and collectively financed SAR programmes.
63. Moreover, recognising European waters overall as maritime
humanitarian spaces would save migrants’ lives at sea, allow better
protection to independent civil SAR missions, and participate in
reinforcing co-operation among all SAR actors. Furthermore, migrant
shipwreck survivors should benefit from special assistance meeting
their specific needs and traumas, while questions such as the identification
of missing family members must also be tackled.
Note
64. During a hearing held on 11 March 2025 with a representative
of the NGO Sea Watch, the Committee on Migration, Refugees and Displaced
Persons heard about an interesting proposal that could be implemented at
the European Union level. Supported by 14 NGOs, the Mare Solidale
scheme is a proposal for a European Union-led SAR programme designed
to save lives in the Mediterranean. It suggests that the European
Union could decide today to implement a rescue programme in accordance
with human rights, rooted in lessons learned from the past operation
Mare Nostrum.
Note
5 Conclusion
65. There is a shameful continuing
humanitarian crisis in the migration sea routes to Europe, where
tens of thousands of migrants have perished over the last twenty-five years.
We are failing in our legal and moral responsibilities to rescue
migrants, uphold human rights, and provide safe migration pathways.
Abandoning these desperate people to migrant smugglers is akin to
giving smugglers a “licence to kill”.
66. Meanwhile, member States pursue restrictive migration policies
and increase controls at borders. Saving migrants’ lives at sea
will not endanger the stability of institutions and national economies.
On the contrary, Europe should see migration as an answer, among
others, to relieve Europe from demographic ageing and labour shortage
and should thus prioritise a proper, managed and safe migration
policy.
Note
67. I call for urgent action to enhance SAR operations in European
waters, to do more to dismantle migrant smuggling networks, and
uphold international humanitarian and human rights obligations.
68. When Europe ended large-scale SAR missions, a number of non-governmental
organisations came forward to fill the gap, and they can only be
commended. The small world of SAR NGOs is not enough, however, and
it faces obstacles and even criminalisation by member States, which
impose restrictive legal and administrative measures on their SAR
missions. It is important to note that NGOs cannot replace the obligations
of member States to provide for sustainable and co-ordinated SAR
operations. But they can help saving lives. Member States and the
European Union must make full use of all vessels capable of rescuing people
in distress. Member States should fully support NGOs by making the
registration of their ships less burdensome, by allowing them to
operate on their territory and from their harbours and by informing
them of distress cases.
Note
69. International maritime law and human rights law constitute
core pillars of democratic societies. Member States and international
institutions are the gatekeepers of such rules and must of course
apply them to their own policies, frameworks and practices. It is
thus worrying to observe recurrent violations of international law at
sea, including numerous cases of pushbacks and pullbacks, where
migrants are forcibly returned to unsafe countries. Frontex and
member States have also been accused of having facilitated pushbacks,
including by sharing co-ordinates of migrant boats with the Libyan
authorities, despite knowing the dangers these migrants would face
upon return. The Fundamental Rights Officer, within Frontex structure,
has been strengthened over the last years, including with an increased
staff. This is a welcome development in the work of the agency towards
further transparency of its activities.
70. Another very concerning trend consists of member States shifting
responsibility for SAR operations to coast guard authorities of
Libya and Tunisia, countries that are unsafe for migrants. This
shift of responsibility is on-going, despite widespread reports
of human rights abuses, including torture, enslavement, and trafficking of
migrants intercepted in European waters.
71. It is therefore crucial to fully respect and implement international
humanitarian and maritime law in addressing this crisis and in ensuring
safer SAR operations. Given the extensive reports of human rights abuses
and mistreatment of migrants by Libyan and Tunisian coast guards,
I call for an immediate moratorium of all agreements, funding, and
logistical support for Libyan and Tunisian Coast Guard authorities
pending a thorough review and rethinking. I call moreover for an
immediate halt to pushbacks and other illegal actions vis-à-vis
migrants in distress at sea.
72. Tackling migrant smuggling is an essential part of the response.
The activities of the Council of Europe, especially the work of
the European Committee on Crime Problems (
CDPC), are essential for achieving such an aim. The Council
of Europe’s activities are not enough, however. To reach such an
ambitious objective and reverse the situation, member States cannot
hide in the shadows anymore. We must collectively promote safe legal
pathways for migration through carefully controlled and safe channels,
including for people in need of international protection. Moreover,
member States and international institutions must recognise European waters
as maritime humanitarian spaces, to provide safe passages for migrants
and refugees and to keep them away from the criminal networks of
smugglers. This includes dedicated SAR zones and improved co-ordination between
States, NGOs, and agencies like Frontex.
73. Europe needs a shift regarding migration policies. Protecting
border and respecting migrants’ human rights are compatible. Such
a shift will neither create any pull factor, nor lead to massive
migration. Preventing migrants’ deaths at sea is a shared moral
and legal obligation that requires urgent and co-ordinated action
from European governments and international institutions.
