Irish Centre for Human Rights Blog

Noemi Magugliani is an Irish Research Council Government of Ireland PhD scholar, and GLAN Law Legal researcher, at the Irish Centre for Human Rights. Noemi’s research examines the assessment of protection claims of male victims/ survivors of human trafficking in Italy and the United Kingdom.

On 11 October 2013, a vessel shipwrecked in the Mediterranean Sea, 113 km south of Lampedusa, Italy and 218 km from Malta, causing the death of more than 200 people. On 19 May 2017, four survivors filed a complaint against Italy with the United Nations Human Rights Committee (HRC), on their own behalf and on behalf of 13 of their relatives who were on board the shipwrecked vessel. On 4 November 2020, the HRC adopted its views in the case of A.S., D.I., O.I. and G.D. v Italy, and found that the facts before it disclosed a violation of Article 6 ICCPR, read alone and in conjunction with Article 2(3). Significantly, the HRC held that, “in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy,” to the extent that the complainants were within the jurisdiction of Italy, despite the events occurred in the Maltese Search and Rescue (SAR) area.

In finding that Italy exercised jurisdiction, the Committee relied on, inter alia, its general comment No. 36 on the right to life, according to which jurisdiction can be established with respect to “persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.” This blog post highlights the significance of the Committee’s decision and of general comment No. 36, which has the potential to capture instances of pushback that have so far been deemed to fail to fulfil the jurisdictional test.

The facts of the case

The complainants submit that they arrived in Libya on 10 October 2013, escaping from the serious threats to their lives that they were facing in Syria. They were transported, together with a large group of people mostly composed of Syrian refugees, to a fishing vessel anchored outside the port of Zuwarah. The vessel, which was reported to have carried over 400 people, set off at around 1.00 a.m. on 11 October 2013. A few hours later, it was shot at by a boat flying a Berber flag and large quantities of water entered the vessel.

Contact was established with the Italian authorities around 11.00 a.m., which were informed that the vessel was going to sink and given the geographical coordinates of the vessel. The Maritime Rescue Coordination Centre in Rome (MRCC Rome) first reassured the people onboard the vessel that they would be rescued, and then asked them to contact the Rescue Coordination Centre of Malta (RCC Malta). Between 1 p.m. and 3.37 p.m., several calls were made from the vessel to MRCC Rome and RCC Malta, but no order was given for a rescue boat to reach the site of the shipwreck.

The complainants claim that the Italian and Maltese rescue centres, instead of intervening promptly, tried to pass responsibility for the rescue operation to one another. According to intercepted phone calls, the closest vessels to the site of the shipwreck – including the Italian Navy ship ITS Libra – were even ordered by the Italian authorities to move further away from the vessel in distress. At 4.38 p.m., MRCC Rome requested the Command of the Italian Navy to put the ITS Libra in direct contact with Maltese authorities, but such request was authorised. At 4.44 p.m., MRCC Rome denied RCC Malta’s request to put the ITS Libra at the disposal of the rescue operation, and invited RCC Malta to look for other solutions, such as the involvement of commercial ships. It was only at 5.07 p.m., after the vessel had capsized, that the ITS Libra was ordered to intervene and was directed towards the vessel in distress.

A new jurisdiction model? General Comment No. 36 and the findings of the HRC

In 2012, the European Court of Human Rights delivered its judgment in the case of Hirsi Jamaa & Others v Italy, where practices of ‘direct’ refoulement were deemed to be unlawful. According to the Court, as the events took place onboard ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel, the events fell within Italy’s jurisdiction. Since Hirsi, the EU and its Member States have moved beyond traditional pushback practices, developing and implementing new policies to circumvent their jurisdiction.

In A.S., D.I., O.I. and G.D. v Italy, a physical link comparable to that of Hirsi is missing. Indeed, the events of October 2013 represent a precursor to the well-documented, and still relevant, pattern of interdictions by omission, which nonetheless result in asylum-seekers and other migrants being summarily forced back, without an individual assessment of international protection and human rights claims. The complainants argue that a causal link exists between the lack of prompt rescue activities, the shipwreck and the loss of lives. The complainants identify the distress call as the element that creates a relationship between the state that receives it, and the person who sends it. This is where, they argue, “the jurisdictional link between the person in danger and the state authorities …, meaning that the authorities consequently have an obligation to provide emergency services.”

While territorial and effective control models of jurisdiction often fail to capture events similar to those of A.S., D.I., O.I. and G.D. v Italy, general comment No. 36 introduces an impact model of jurisdiction:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. … States parties are also required to respect and protect the lives of all individuals located on marine vessels and aircraft registered by them or flying their flag, and of those individuals who find themselves in a situation of distress at sea, in accordance with their international obligations on rescue at sea.

Although the Committee noted that the principal responsibility for the rescue operation lied with Malta, considered that the shipwreck happened in its SAR area and that it undertook responsibility for the SAR operation, it considered that Italy did not provide a clear explanation for its failure to promptly respond to the distress call, prior to the assumption of responsibility by the Maltese authorities. The Italian authorities also failed to explain the reasons behind the delay in dispatching the ITS Libra, which was located only one hour away from the vessel in distress, even after being formally requested to do so by RCC Malta.

By acting negligently, or by failing to act, Italy established a crucial link in the causal chain that caused the shipwreck, and failed to meet its due diligence obligations under Article 6. The Committee considered that “the individuals on the vessel in distress were directly affected by the decisions taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant legal obligations of Italy, and that they were thus subject to Italy’s jurisdiction for the purposes of the Covenant.”

Conclusion

As pushback patterns change, both in response to findings of Courts and Committees and as a consequence of changing political scenarios, with States seeking to circumvent jurisdiction through progressive distancing – be it via refoulement by proxy, interdiction by omission, privatization of refoulement, or aerial refoulement – the views adopted by the HRC are a significant step forward in the process of addressing “maritime legal black holes,” and in providing not only effective remedies for refugees and other migrants whose rights have been violated, but also in establishing responsibility for such violations.