Visibility and Crime at Sea

1. Violent Pushbacks at Sea

On 30th June 2021, search-and-rescue (SAR) activists from Sea-Watch witnessed a brutal attack by the so-called Libyan Coast Guard (LCG) against a migrant vessel carrying 64 during an attempted pushback. According to Sea-Watch, they “overheard a message at 13:39 UTC about a distress at sea within the Maltese search and rescue zone that said: ‘50 people, many children’”. The NGO then sent its reconnaissance aircraft Seabird in the direction of the case and spotted the ship PB 648 – Ras Jadir of the LCG.

The Ras Jadir is one of several vessels that were donated by Italy to the LCG following the 2017 Memorandum of Understanding between the two countries. After spotting the wooden migrant vessel, the Seabird crew alerted the Maltese authorities by email and phone about the distress case. The authorities allegedly replied that they would investigate, but, after being warned of an imminent pushback to Libya, hung up the phone. A reconstruction of the case by Italian journalists shows that the incident occurred within 45 nautical miles of Lampedusa, very close to the Italian SAR zone and over 8 hours away from the Libyan Coast.

Tragic and shocking as it is, this incident is but one of many. Both the use of violence by the LCG and its systematic involvement in illegal pushbacks are well known and have been richly documented (see e.g. here and here). It is also well known that the actions of the LCG are undertaken with the complicity of European states. The latter do not only provide the operational and financial support to make these interceptions possible, but also at times exercises effective control over the LCG, directing it to engage in refoulement “by proxy”. There is now also significant evidence of the systematic deflection of responsibility by European maritime coordination centers, as well as of deliberate non-assistance by European civil and military assets.

Nevertheless, the event of 30th June has an important element of novelty. In this case, the crew of Sea-Watch’s reconnaissance aircraft Seabird observed the confrontation between the LCG and the migrant boat from the air and captured it on film. In the video footage, which was immediately shared via Twitter, one can clearly see how the LCG fires two shots in the direction of the wooden boat, throws objects at the people on board and tries to ram the boat and catch it with a rope.

2. Activism, Visibility and Accountability

Presented with this evidence, prosecutors in Agrigento (Sicily) have launched an investigation against the LCG for “attempted shipwreck”. This is the first time that a European court opens an investigation against the LCG, and the fact that an Italian court should do so bears legal and political importance for two reasons.

First, Italy has been at the forefront of the politics of externalization in the Mediterranean. In the landmark Hirsi judgement of 2012, Italy was condemned for pushing asylum seekers back to Libya, contrary to Article 3 and article 4 of Protocol 4 of the ECHR. Starting 2013, Italy led SAR operation Mare Nostrum, which expanded Italian rescue activities far beyond Italy’s SAR zone. But since 2014, the Italian government resumed its earlier policy of deterrence and containment. It thus became clear that, while the Hirsi judgement was widely celebrated, it also revamped a policy of externalization specifically designed to avoid legal responsibility. By revealing the outer limits of Article 1 jurisdiction, it provided a “blueprint” for what would fall beyond Article 1 jurisdiction, and for further human rights violations.

This policy consists in delegating authority for SAR operations to Libya – a country that has not signed the 1951 Convention and that is not subject to the jurisdiction of the ECHR – while at the same time providing them with the capacity and political mandate to carry out refoulement “by proxy”. By doing so, Italy and the EU have created maritime legal black holes where migrants are rendered de jure rightless due to the difficulties of holding states accountable for their actions. The fact that an Italian court is now investigating the LCG for crimes committed with the political complicity and material support of the Italian state is an important development.

Second, this investigation also reveals an important alteration in the power dynamics between state actors and SAR NGOs in the Mediterranean. Whereas so far European states that sought to criminalize SAR NGOs for allegedly engaging in criminal activities such as human smuggling, now SAR NGOs are bringing state actors to court for their criminal actions against migrants. The key to this transformation is the ability to monitor the maritime space and make human rights abuses visible and public to a wider audience. That the LCG has been engaged in refoulement and in the use of violence against migrants is not new to anyone. But it is only through the ability to present evidence of this on video from a bird’s-eye perspective that SAR NGOs have acquired leverage over European courts.

The development of this ability, in turn, has been by three interrelated processes: the professionalization of SAR NGOs, the development of innovative techniques, and the reversal of roles between civil and state actors. In the immediate aftermath of European retreat from humanitarian engagement in the Mediterranean, activists were overwhelmed by what seemed like a vacuum of responsibility and authority for maritime SAR coordination. As a result, NGOs had to step in to fulfill the function ordinarily attributed to state authorities. Rather than simply providing emergency relief to people in need of rescue, SAR NGOs saw themselves as forced to develop professional rescue capacity. This included devising new techniques, purchasing new assets capable of monitoring the maritime space, receiving distress calls, and coordinating rescue operations. One important element of this threefold process of professionalization, technical innovation and reversal of roles was Sea-Watch’s deployment of two reconnaissance aircrafts: the Moonbird and the Seabird. These airborne operations have no rescue capability: their function is not to rescue, but to monitor. In some cases, this monitoring may be used to help coordinate a rescue, in others it may be used as a tool to hold state actors accountable by reporting on human rights violations happening at sea. In both cases, the use of the airplane as a monitoring tool compromises state actors’ capacity to shield responsibility for their strategies of externalization and deliberate non-assistance.

3. From Incident to Structure

The case is remarkable also because the basis for jurisdiction is not readily apparent. Extraterritorial prosecution may usually occur in instances where active or passive personality principles can be applied, but this would require the involvement of an Italian national either as a suspect or as a victim. Universal jurisdiction is only triggered for suspicions of war crimes, crimes against humanity, or genocide.

Assuming there are solid grounds for jurisdiction, the launch of a criminal investigation against the LCG seems to be a welcome development. It should be contextualized within a larger turn to criminal law among advocates for migrant and refugee rights. This relatively new discourse, in which border violence is cast as crime, has indeed developed along the fault lines between the global north and the global south. Examples include campaigns by social movements in Europe, the US, and Australia. Like in other social movements, only part of the effort is legal. As important are the political and cultural aspects of this push for criminalization, which have considerable progressive potential.

At the same time, more than a note of caution about criminal law seems to be in order. As critics have long argued, criminal law has a problematic individualizing effect. The parameters of a criminal investigation tend to isolate a certain event in limited temporal and spatial confines. Criminal law tends to overemphasize physical, kinetic violence, while it may risk under-emphasizing flows of funding, oral guidance, and informal expectations. When the application of criminal law is exterritorial, the decision when to prosecute or not is often very much up to the discretion of prosecutors. They may thus choose to only prosecute when prosecution is politically comfortable. This does not mean that criminal law is necessarily flawed. It only means that one must take this decision with a healthy grain of skepticism and manage expectations.

From a critical perspective, the choice to prosecute Libyan defendants must be questioned and problematized. When in 2008 Qaddaffi and Berlusconi signed the “Treaty of Friendship” (renewed 2017), Italy apologized for its colonial history in Libya. But funding and abetting violence from afar, and then prosecuting its exceptional instances, is a time-honored practice of colonial virtue signaling. More generally, it remains a question to what extent this investigation will be helpful in exposing and imposing accountability; by “accountability” we refer not only on the Libyan individuals involved, but to the political and economic environment that invited their actions. Within the circumstances of the case, another question will be whether evidence is gathered about Maltese actions and especially omissions. Will the simple fact that the Maltese Rescue Center hung up the phone be part of the evidence material? Will the Italian prosecution seek to establish facts on that matter, which may be relevant to understanding the allegations against the LCG?

Unlike some critics, who seem to suggest that criminal law can only advance the interests of the politically or economically powerful, we do believe it can have a positive role. Take an example from a completely different social movement, which has also relied on criminal law and advocated around it. The reliance among many feminists upon criminal justice in their push to prosecute forms of sexual violence surely had its problems. But it has also demonstrated how criminal law can be harnessed towards egalitarian and even emancipatory ends. It is still an open question whether criminal law can effectively advance justice in the context of border violence. With the expansion of civic surveillance by Sea-Watch and other rescue NGOs, the opportunities to mobilize criminal justice have expanded considerably. The results remain to be seen. This case may help us see them.