Defence of refugee law sets Aquarius on Mediterranean collision course

An innocuous headline appeared on a maritime tracking site at about midday on Sunday:

Aquarius is patrolling in international waters at 25nm from the Libyan coast

I doubt if tomorrow’s news stories will take much notice. They should do, if only in anticipation of the potential implications for coming days. With international civil society frozen up by populism’s distaste for human rights, the mission of this ship is making a welcome stand for established international law and may sail into trouble for its principles.

The Aquarius is a rescue vessel chartered by the European NGO, SOS Mediterranee, and operated in partnership with Medecins Sans Frontieres (MSF) for the legitimate purpose of rendering assistance to people in distress at sea. Since 2016, the Aquarius has rescued more than 29,000 people attempting to cross the Mediterranean in boats unfit for the purpose, piloted by human traffickers.

This unbroken period of humanitarianism came to an abrupt end in mid-June when the new Italian government refused permission for the Aquarius to dock with over 600 migrants on board. Spain defused the situation but the ship was forced to hole up in Marseille while managers assessed what they describe as “significant contextual changes that have taken place in the Central Mediterranean that severely affect rescue operations.”

Political moves over the last six weeks do indeed represent a setback for the safety of those attempting the Mediterranean crossing. First, other European ports were closed to NGO ships such as the Aquarius. Then the European Council cobbled together its notorious package of measures on migration, clearly designed to close down the Mediterranean routes altogether. To ensure that all rescued migrants are returned to Libya, the text issues an imposing directive:

All vessels operating in the Mediterranean must……not obstruct operations of the Libyan Coastguard

In an obviously orchestrated move during the same week, the International Maritime Organisation rushed through its approval of a new Libyan Joint Rescue Coordination Centre, authorising the coastguard to coordinate responses to distress signals. Previously, this had been the responsibility of the Italians who, like other European governments, cannot legally disembark migrants in Libya because the country is not designated as a place of safety. The “solution” is to cede powers of rescue to the Libyans who are not signatories of the UN Refugee Convention. To reinforce this evasive measure, European funding of the coastguard will be increased.

Faced with such a checklist of obstacles, why have MSF and SOS Mediterranee decided to send Aquarius back to Libya? Within the approved Libyan search and rescue zone, any attempt at picking up migrants may be blocked by the coastguard. Even if a rescue is successful, where can Aquarius disembark up to 500 migrants? The European Council’s promise to “swiftly explore the concept of regional disembarkation platforms” remains conceptual, to say the least.

The possibility that the mission is purely symbolic, with the ship’s crew obligingly inviting the coastguard to perform a rescue while they tweet about human rights, is ruled out by the tone of the MSF press release. It robustly defines red lines, almost as if they were rules for engagement in battle, including in particular:

Aquarius will comply with instructions to not assist only if other means are deployed to assist people in distress at sea and bring them to a place of safety…. Aquarius is obliged to refuse any instruction by maritime authorities to disembark people rescued at sea in Libya, or to transfer people rescued at sea onto any ship that would disembark them in Libya

Reinforcing the macabre warlike tone, MSF informs us that “a refrigerated shipping container has been installed on deck to store dead bodies.”

The imagery is not wasted. This is the peak time for attempted crossings. It seems highly improbable that a stand-off can be avoided over coming days, given the polarisation between the MSF and European Council positions.

Hopefully, there is little scope for force. It’s surely inconceivable that Libya would attempt to impound Aquarius or arrest the crew, given the relative international status of Libya’s fragile state and two of the world’s most respected humanitarian organisations.

Political resolution may be difficult, given that European officials are on vacation and that UN agencies working in Libya prefer to stick religiously to humanitarian work. Legal argument strongly favours the Aquarius whose principles for engagement are precisely consistent with international law. By contrast, European leaders give the impression of making up rules as they go along. The language adopted by the European Commission in its referral of Hungary to the European Court of Justice, over treatment of asylum seekers, sounds perilously close to the Council’s own actions on Mediterranean migration.

And the NGOs possess a crucial statistic. In June alone, an estimated 600 people died or have been reported missing, more than half of the Central Mediterranean death toll for the year to date. No NGO rescue ships were active during June, disproving those politicians who have argued that these ships act as an incentive to migrants to risk the crossing. Sophie Beau, vice-president of SOS Mediterranee has said: “Europe bears the responsibility of these deaths on its conscience.”

Human Rights Watch has been scathing about the capacity of the Libyan coastguard to respond to distress calls to international standards. The group has also been critical of recent actions of the European Council and IMO. Otherwise, civil society voices have been disappointingly quiet over these developments, nor have they responded with any encouragement to the decision to redeploy Aquarius. They should put this right over the coming week.

In a few days, Kumi Naidoo takes over as Secretary General of Amnesty International. As former Executive Director of Greenpeace, he knows a thing or two about principled activism at sea, by courtesy of the Rainbow Warrior. The Aquarius mission may trigger an opportunity for him to hit the ground running.


Aquarius returns to Central Mediterranean: humanitarian assistance at sea desperately needed MSF press release

The Aquarius returns to sea, ready to save lives after technical and strategic upgrades in Marseille SOS Mediterranee press release

Live updates of activities and observations of Aquarius in the Mediterranean Sea

EU/Italy/Libya: Disputes Over Rescues Put Lives at Risk from Human Rights Watch

Commission takes Hungary to court over treatment of asylum seekers from Politico