Pressure is mounting on Nato to account for the failure to rescue a distressed dinghy packed with 72 African migrants last year, despite warships under its control having been within the vessel’s vicinity.
A Council of Europe report noted Nato’s “inconsistent” response to the incident, in which 63 migrants died when their boat was left adrift despite multiple distress calls. Nato was at the time coordinating military efforts to topple Muammar Gaddafi. The Libyan territory was considered a warzone.
The report conclusions, published on Thursday, stopped short of singling out Nato for direct criticism, instead saying the various actors involved, including Malta and Italy, had to assume “collective responsibility” for their failure to rescue to the dinghy’s passengers.
Packed with migrants fleeing conflict in Libya, the dinghy found itself adrift within Libya’s search and rescue zone after 18 hours at sea. People aboard used a satellite phone to contact an Eritrean priest living in Rome, who duly informed Italian authorities of their distress.
According to international maritime law, the responsibility for coordinating the immigrants’ rescue lay with Libya, in whose search and rescue zone the dinghy lay. But Libya, in the throes of a civil war and with no functional government, was not able to do so.
The report, authored by Dutch MEP Tinike Strik with support from Maltese lawyer Neil Falzon, argued that Italy should have taken responsibility for the rescue coordination, in line with international guidelines. It also found that Nato, which controlled the military zone in which the dinghy drifted, failed to react to distress calls.
The military alliance had originally insisted it had no record of distress calls from the dinghy but has now reversed that assertion and said that it received a fax with the boat’s coordinates and forwarded them on to ships in the area under its control. One of those ships was the Spanish frigate Méndez Núñez, which was 11 miles away from the dinghy. The Spanish government has denied Nato’s claim and reportedly thrown down the gauntlet, with The Guardian quoting Spanish officials daring Nato to “prove it”.
Malta played a relatively minor role in the tragedy and the Council of Europe rapporteur had said in December that she was “very impressed” by Maltese authorities’ record-keeping and cooperation.
What emerges clearly from the report is what it terms “a failure of the maritime legal framework”, with no clear responsibility assigned in situations in which a state was unable to fulfil its search and rescue obligations.
The fact that Libyan waters were in effect a warzone further complicated matters, maritime law expert Ann Fenech noted.
Although reticent to comment on the case, Dr Fenech said that “on a purely humanitarian level, any of the states involved, as well as vessels in the vicinity, has an obligation to assist a distressed vessel”.
She argued that while it was easy to analyse a situation in the cold light of day, making snap decisions was often far more difficult.
“The warzone scenario changes the ballgame completely. Can the law oblige a country to risk the life of its citizens to enter a war-zone and rescue a vessel,” Dr Fenech asked.
Dr Falzon, who aside from contributing to the report also heads local advocacy NGO Aditus, noted how the international community had completely failed to plan for the flow of people fleeing war in Libya.
“It was a huge failure of the international community. Everyone was planning military intervention in Libya without ever thinking of the resultant seaward fleeing of refugees,” he said.
He augured that any hitherto-unanswered questions would be resolved. “The duty to rescue those distressed at sea is sacrosanct. You simply cannot overlook it. And if it results that legal obligations were violated – be it by a government minister, a military commander or a negligent ship captain – then they need to be brought to justice,” Dr Falzon said.