20 December 2023

A Duty to Rescue

A Criminal Law Perspective on the Failure to Assist Migrants in Distress At Sea

Reports of migrants drowning in the Mediterranean have, unfortunately, become more and more frequent in recent years (see, here, here and here). A recently published MSF report has highlighted the role ‘pushbacks and systematic non-assistance to those at risk of drowning proliferate’ play in this regard (p. 3). The report refers specifically to two events that happened in 2023 in which national authorities failed to launch rescue operations despite receiving the information on migrants in distress at sea hours before the tragedy (p. 7). One such event occurred at the end of February, when at least 94 people lost their lives off the coast of Cutro, Italy. The other reported event, which is taken as an illustrative example in this blogpost, is about the boat which capsized 50 nautical miles off the coast of Pylos, Greece on 14 June 2023. This incident remains one of the worst maritime disasters involving migrants, with at least 78 dead and an estimated 500 still missing.

In this blogpost, we assess whether a coast guard’s failure to act in situations like the one on June 14 might violate an incumbent criminal law duty to rescue. We map the core elements of the duty to rescue under criminal law and how they might apply to such a scenario, using the abovementioned event of 14 June as an example. This criminal law duty, to be distinguished from the more widely known duty to rescue under the law of the sea, appears in the criminal law codes of most Continental criminal systems, including those of southern European states. It aims to penalise the failure to rescue persons who find themselves in situations of emergency. We argue that these offences might provide a new avenue to question the failure of coast guards, and ultimately their states, to rescue migrants in distress at sea.

Understanding Duty to Rescue Offences

Under criminal law, duty to rescue offences establish the duty to provide aid to persons who find themselves in situations of emergency, including but not limited to situations of deadly peril. Under the laws of some countries, particularly in Anglo-American jurisdictions, this duty is always conditioned by the existence of a special relationship between an individual and a person in danger which can be based, for instance, in the individual’s profession (such as a lifeguard in a swimming pool). In other legal systems, however, the duty to rescue is commonly used as a synonym for the so-called ‘Samaritan laws’ (e.g. Botte-Kerrison, Scordato and Weinrib), and is imposed on all individuals. Samaritan legislations are common in countries endorsing Continental systems of criminal justice (p. 683).

Even though its denomination and specificities vary across jurisdictions, the duty to rescue underpins offences which impose duties of immediate intervention on persons who find others in a situation of imminent danger. In the Greek Criminal Code, Article 288 provides for example that a) whoever hinders the necessary action to prevent or suppress a common existing or imminent danger (…) and b) whoever fails to offer the assistance that they could have offered in the event of an accident or common danger or necessity, without exposing themselves to substantial danger, should be imprisoned. Other examples can be found in the German and Italian Criminal Codes.

The Duty to Rescue and the Events of June 14

The key question here is whether failure to rescue offences can encompass the scenarios of migrants in imminent danger at sea such as that of 14 June. In this regard, it is noteworthy to mention that since duty to rescue laws are phrased in vague terms, courts can be flexible in establishing which scenarios they capture. For example, the International Criminal Tribunal for Rwanda concluded in Rutaganira that the duty to rescue found in the Rwandan Criminal Code had mandated the defendant to assist Tutsi civilians in danger due to his authority and official position (§82).

Despite this flexibility, certain requirements are common to failure to rescue offences. For instance, their application requires that a person be in serious peril (p. 938), generally understood to include perils which can cause death, serious bodily injury, or serious impairment to physical health to a person (p. 476). However, the source of peril is irrelevant. In the 14 June case, the boat was unseaworthy and overcrowded. Also, the passengers were calling for help because of their concrete risk to capsize. Moreover, many migrants had already died since the beginning of the journey, providing further evidence that the situation already posed a risk to the migrants’ life. Consequently, the requirement of ‘serious peril’ appeared to have been fulfilled.

The precise moment a duty to rescue arises is not usually specified in failure to rescue laws. One view is that the relevant moment is when the peril is of such nature as to require immediate intervention, although this question is usually interpreted on a case-by-case basis (for an example of an interpretation, see p. 478). The duty could be said to have already materialised in the scenario at hand, given that the boat with migrants had not been moving for hours and there had been several attempts by the migrants to show the need for immediate intervention (e.g. distress calls received by the authorities).

A further precondition for holding someone criminally responsible for failing to aid another person is that they could have provided assistance without exposing themselves or others to a greater risk (p. 889). In practice, when deciding on how much risk one should assume, courts examine what a reasonable person would do in the given circumstances (p. 942). For instance, a French court convicted a defendant who instead of tendering a pole to his drowning son-in-law, ran away seeking help (p. 482). In the case at hand, failing to assist the migrants, particularly in the given circumstances (e.g. the lengthy journey, the fact that many of them were exhausted or could not swim), seems contradictory to what one may expect from a reasonable individual.

Additionally, those considered as having a special relationship towards the victims are bound to assume higher risks (pp. 485-486) and have broader duties (p. 751) than members of the general public. Given their profession, the Hellenic Coast Guard members would fall within the group of persons with special duties towards those who find themselves in the Greek search and rescue area. This is so particularly if migrants are in a vulnerable situation, as they were. The risk assessment should thus consider that coast guards are highly-skilled and trained professionals among whose duties lies the one to save lives at sea. Thus, they are bound to accept higher risks than just any reasonable person.

The offender’s mental element is at times explicitly defined across jurisdictions, other times it can be ascertained by the competent courts. French jurisprudence, for instance, considers merely knowing that the victim is in danger and deliberately failing to provide assistance as sufficient to meet the threshold (e.g. Arrêt du 23 mai 2001, n° 00–85.672). Commentators, meanwhile, have also suggested the even more easily satisfied ‘should have known’ standard (pp. 475; 487). In the given situation, the Hellenic coast guards remained on the boat despite their knowledge of the distress, which is a situation likely to meet the standard required for the duty to rescue offence.

The Defence of Superior Orders

While all requirements to establish criminal liability for the failure to rescue offence appear to be met, coast guards are part of a state apparatus and subject to instructions by a higher authority. In this regard, as documented by MSF, there are incidents where state authorities gave orders not to intervene to assist migrant boats in distress (p. 25, see also here). When similar instructions lead to the perpetration of criminal offences, national criminal codes allow, under certain circumstances, for the possibility of negating the criminal nature of the act by referring to the defence of superior orders (see e.g. Articles 21 of the Greek Criminal Code, 122-4 of the French Criminal Code and 51 of the Italian Criminal Code). Such defences are common to all national criminal systems, and are based on the premise that, in principle, the defendant was given an order which they had to obey because of military or other institutional hierarchies.

Whereas some domestic criminal jurisdictions consider superior orders as a complete defence except in scenarios where instructions were manifestly unlawful, others provide for additional grounds which render the defence invalid. For example, pursuant to Article 278 of the Slovenian Criminal Code, superior order is not a valid defence if the subordinate committed a war crime or any other grave criminal offence or if they knew that carrying out the order or command constituted a criminal offence. Similarly, the Greek Criminal Code states that the attempt to carry out an order does not result in a violation of the criminal code if the law does not allow the recipient of the command to examine whether the order is lawful or not.

Despite the vagueness of this Greek provision, particularly given the lack of clarity on how to determine that a subordinate could not examine whether the order is illegal, the defence of superior orders seems to be a quite weak counterargument in the scenario at hand. This is because of the so-called ‘conditional liability approach’ to this defence, which prevails in national criminal systems (p. 299), and appears to be also applicable here. According to this approach, the  subordinate is not relieved from the criminal responsibility unless they did not know or could not reasonably have been expected to know about the illegality of the order. Given their profession and daily work, it seems reasonably possible for the coast guards to know of their duty to rescue, and that any instructions leading to failure to assist the migrants would lead to a violation of domestic criminal law.

Importantly, even if the defence of superior order was applicable, there would also be a question related to the criminal liability of those issuing the order in the first place. For instance, pursuant to Section 357 of the German Criminal Code, superiors inciting or undertaking to incite a subordinate to commit an unlawful act while in public office or allowing for such act to be committed by their subordinate incur in the penalty provided for the concerned unlawful act. Moreover, the Greek Criminal Code’s provision on superior orders foresees the option to consider the person who gave the order to be punished as the main perpetrator.

Hope for Change

The foregoing discussion illuminates how coast guards could be contravening domestic criminal law failure to rescue offences in the context of non-assistance policies of states towards migrants. Notably, duty to rescue offences are an exception to the criminal law’s general hesitance to impose positive obligations by requiring a certain level of socially expected diligence between members of society widely construed (p. 22). Higher state authorities, tasked with the organisation and protection of individuals, should thus not obstruct or even demand non-compliance with duties justified on the importance of social mutual aid, especially where this might lead to  extensive loss of life. Additionally, domestic authorities should change their practice concerning migrants in distress at sea in the future and encourage their coast guards to comply with their criminal law duty due to the obligations inherent in the coast guard profession, which is based on an imperative duty to prevent loss of lives and disappearances along the coast and at sea.

SUGGESTED CITATION  Srovin Coralli, Ana, Manganini, Irene; Abebe, Fekade: A Duty to Rescue: A Criminal Law Perspective on the Failure to Assist Migrants in Distress At Sea , VerfBl