In Search of (Ir)Responsibility

It is no secret that the eastern Mediterranean route linking Turkey with Greece is currently shifting. Due to the harsh conditions for asylum-seekers in Greece, Greek pushbacks, and border closures by the Balkan states, asylum-seekers have started to cross the eastern Mediterranean to reach Italy instead. This sea route is much longer, and therefore, more dangerous. In the Crotone shipwreck, at least 94 asylum-seekers died right in front of Italian shores. Recent investigative reports indicate that Italian maritime authorities and Frontex could have prevented these deaths. Building on these reports, this blogpost argues that Italian authorities and Frontex violated their legal search and rescue (SAR) obligations: Both authorities failed to adequately evaluate the case and initiate the urgently required rescue measures.

An Avoidable Tragedy

On 22 February 2023, about 180 asylum-seekers left Turkish shores for Italy on a small craft, the Summer Love. A Frontex plane identified the wooden boat as a ‘migrants’ vessel’ due to a ‘significant thermal response.’ It also noted that there were no visible life jackets on the boat and the presence of ‘sea state 4 conditions’, which can include waves up to 2,5 meters. The data was livestreamed to Frontex headquarters in Warsaw, where representatives from the Italian authorities were present. Frontex officers sent a follow-up email to the Italian maritime authorities. Earlier in the day, the Frontex pilots had warned the control room of strong winds. One hour after the Summer Love was spotted, Italian authorities sent two customs police vessels to investigate any potential criminal activity. Both vessels had to return due to bad weather but informed the coastguard whose boats can operate in rough seas. However, no coast guard vessel was sent to the Summer Love. About five hours after the vessel was spotted, it broke apart and sunk within seconds. 94 persons lost their lives – only 200 meters off the coast of Crotone (Italy). Recently, investigative journalists were able to reconstruct the incident. Their reports which can be found here (Süddeutsche Zeitung), here (Sky News), or here (El País) suggest that Frontex and Italian maritime authorities could and should have prevented these deaths.

Italy’s SAR Duties

As a coastal state, it is Italy’s legal duty to operate an adequate and effective search and rescue service to ensure safety on and over the sea, Art. 98(2) UNCLOS. This legal duty is further specified by the International Convention on Maritime Search and Rescue (SAR Convention) which mandates the provision of assistance to any person in distress within the Italian Search and Rescue Region (SRR):

‘On receiving information that any person is, or appears to be, in distress at sea, the responsible authorities of a Party shall take urgent steps to ensure that the necessary assistance is provided’, SAR Convention, Annex, para. 2.1.1.

The SAR Convention distinguishes three emergency phases: uncertainty, alert, and distress (see para. 4.4). The maritime rescue coordination centre (MRCC) or sub-centres shall, immediately upon receipt of information concerning a person, a vessel, or other craft in a state of emergency, evaluate such information and determine the phase of emergency […], and the extent of operations required’, Annex, para. 4.2.4. The Convention also foresees specific procedures for each phase. Thus, the uncertainty phase requires the initiation of inquiries to determine the safety of a person, a vessel, or other craft, or to declare the alert phase. Upon declaring the alert phase, authorities must extend their inquiries for the missing person or vessel, alert appropriate SAR services and initiate such action as is necessary in light of the circumstances. After having declared the distress phase, the maritime authorities must follow already existing plans of operation (Annex, para. 4.5.3 and para. 4.1.3) which stipulate detailed rescue procedures (see in this regard the Italian SAR Plan of 2020).

Frontex’ SAR Duties

The main legal basis for Frontex’ SAR duties is Regulation (EU) 2019/1896 (2019 Regulation) in conjunction with Regulation (EU) No 656/2014 (2014 Regulation). Article 3(1)(b) of the 2019 Regulation foresees that SAR operations are launched and carried out in accordance with the 2014 Regulation and with international law. The most relevant SAR-related provision is Article 9 of the 2014 Regulation which echoes the legal duties stemming from international law, namely the duty to render assistance as well as the SAR Convention’s emergency phases. Notably, Article 9 also lists a whole set of criteria to be taken into account when determining whether the vessel is in a phase of uncertainty, alert, or distress phase and which must be transmitted to the MRCC responsible (Article 9(2)(f)). These criteria are codified through rule examples and comprise inter alia:

the seaworthiness of the vessel, the likelihood that the vessel will not reach its final destination, the number of persons on board in relation to the type and condition of the vessel, the availability of necessary supplies such as fuel, water and food to reach a shore, the presence of qualified crew and command of the vessel, the weather and sea conditions, including weather and marine forecasts.

Through a management board decision in 2021, the agency adopted its ‘Fundamental Rights Action Plan for the implementation of the Fundamental Rights Strategy’ (see here). The plan refers explicitly to Frontex aerial surveillance which ‘is conducted in line with fundamental rights’ and amounts to an operational plan and guidance for Frontex assets who become aware of distress situations at sea (see p. 11).

But Was It Really Distress?

To hold Frontex and Italian authorities legally liable for failing to fulfil their specific duties to render assistance turns on whether the Summer Love found itself in a state of distress. In cases of distress, both authorities are obliged to take urgent steps to ensure that the necessary assistance is provided. Below the threshold of distress, their legal duties arise from the uncertainty or alert phase.

Distress is a factual scenario. The SAR Convention defines a ‘distress phase’ which has to be declared

‘when positive information is received that a person, a vessel or other craft is in danger and in need of immediate assistance;

when, following the alert phase, further unsuccessful attempts to establish contact with a person, a vessel or other craft and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or

when information is received which indicates that the operating efficiency of a vessel or other craft has been impaired to the extent that a distress situation is likely’ (para. 4.4.3).

To determine whether a person or a vessel finds itself in danger and in need of immediate assistance as defined by the SAR Convention, the respective authorities must assess all relevant data and factors available for that purpose. As any such assessment occurs before a possible shipwreck, maritime officials must – necessarily – work with probabilities, especially because in many cases, no reliable information (e.g. distress calls) may exist. At the same time, given the significance of the right to life, legal literature (see e.g. here and here) emphasizes that the term ‘distress’ must not be interpreted too narrowly. The UN Human Rights Committee, too, advocates for an extensive understanding of state duties when the right to life is at risk (see General Comment No. 36, para. 63). Indeed, an unduly restrictive interpretation of the term distress (see here, and here) such as one that only encompasses scenarios in which a vessel is already or almost sinking, significantly reduces the probability that timely assistance reaches the persons in distress.

To determine whether the Summer Love was in state of distress, the above-mentioned indicators established under Article 9(2)(f) of the 2014 Frontex Regulation provide the necessary guidance. In this respect, both authorities were aware of the Summer Love’s nature as a migrants’ vessel. While this does not suffice on its own to determine a state of distress, migrants’ vessels are almost always dangerously overloaded – a fact equally confirmed by the observed thermal responses. Assuming a vessel is overloaded, a second indicator for distress stemming from the 2014 Regulation is the absence of sufficient lifesaving appliances on board, which was equally clearly observed by the Frontex plane. A third indicator for distress established under the 2014 Regulation is that migrants’ vessels are usually not equipped with qualified crew. A fourth important indicator under the regulation are dangerous weather and sea conditions which were hinting at a distress case, too. The weather and sea conditions were both part of the collected data by the Frontex plane. A fifth indicator on basis of the regulation was the vessel’s repeated motor failures, leading to various stops en route and reducing the likelihood that the vessel would reach its final destination. Taken together, it would have been relatively straightforward for Italian and Frontex officials to conclude that the situation on board was exceedingly precarious, reaching a state of distress.

While Italy is not directly bound by the indicators established for Frontex operations, to conclude that the Summer Love was in a situation of distress is also in line with the SAR Convention’s legal benchmarks which are binding upon Italy. In particular, both Frontex and Italian authorities had received positive information that the Summer Love’s passengers were in danger and in need of immediate assistance. Against this background, Italian authorities should have declared a distress phase at the latest when the customs police could not establish contact with the Summer Love – which was four hours before the Summer Love sank.

Spelling Out Shared Responsibilities

Both authorities, Frontex and Italian authorities, must undertake their own assessments of the case. The MRCC Rome is the primary authority for coordinating search and rescue within the Italian SRR. As such, it should have properly evaluated the data gained by Frontex, declared a distress phase, and initiated rescue efforts immediately with its own SAR assets, especially given the vicinity to Italian shores. Even if the MRCC Rome had only identified the emergency phase below the distress phase (the alert phase), it would have been obliged to improve the information situation, to alert rescue resources for possible deployment, and to alarm SAR units. Given the reconstruction of events, it appears that Italian authorities did not even alarm rescue units for later deployment.

Frontex complied with its obligation to transmit relevant information and observations to the MRCC Rome (see Article 12 of the 2019 Regulation and Article 9(2)(a) of the 2014 Regulation). However, its own assessment is missing, and the transmitted information failed to mention the bad weather conditions (see here) – an central factor in determining a distress case. Moreover, while the Frontex Fundamental Rights Action Plan states that Frontex assets must inform all ships and aircrafts in the vicinity (p. 11) in cases of distress, this did not happen either.

Against this background, it appears both authorities did not follow the legal requirements imposed by SAR law.

After the Shipwreck is before the Shipwreck

Frontex and Italian authorities could and should have determined that the conditions on board the Summer Love amounted to a distress situation at sea. This would have required immediate action by both authorities. Judicial investigations in Italy may shed more light on this matter. It is likely that further evaluation will also take place on the European level. Yet, neither will breathe back life into the 94 people who died that day.

Shipwrecks like the one of Crotone attract a lot of media attention, especially, if they happen within EU territory. Yet, it eventually fades away – until the next shipwreck happens. If EU member states really want to stop these tragedies, they need to implement legal pathways to Europe, refrain from hindering civil society-led SAR efforts, and establish state-led rescue programs. If not, the death toll of European necro politics will continue to rise.