Only 104 out of the 750 passengers who travelled on the fishing boat, which capsized on June 14 and sank in the Ionian Sea, were rescued. The bodies of 80 have been recovered so far and the remaining passengers, an estimated total of as many as 500 people, including large numbers of women and children, remain missing. The boat had departed from Libya the previous Friday and was heading towards Italy. The tragic shipwreck, which immediately became yet another icon of the never-ending catastrophe of asylum seeking in the Mediterranean, occurred on the high seas, 87 kilometres from the Greek Coast.
The Hellenic Coast Guard’s handling of the distress situation attracted heavy criticism. Observers expressed alarm about its delays in initiating a rescue operation despite having received information about the boat a day earlier and escorting it for hours before intervening. As testimonies from survivors are gradually exposed, Greece is once again accused – not only of the lack of timely rescue – but also of directly causing the migrants’ boat to capsize by attempting to tow it away from Greece’s Search and Rescue [SAR] zone. At present, we are not able to determine if those accusations are accurate. Sadly, we would not be surprised if they are indeed true. Three years ago, we helped expose a pattern of such Greek tow-aways, and recently published our study on the topic. The pattern, which Aegean Boat Report, Consolidated Rescue Group and many others have continually reported on, has not abated since. Asylum seekers are routinely intercepted at sea and even abducted from Greek islands before being towed out to sea and abandoned in inflatable life rafts, as New York Times coverage based on Fayad Mulla’s investigation recently reconfirmed. Greek officials have repeatedly denied any wrongdoing, despite evidence that these violations are systematic.
Greece’s Minister for Migration and Asylum, Notis Mitarachis, quickly provided a particularly perverse legal defense to the Hellenic Coast Guard’s actions: “The Coast Guard has no right to intervene in international waters”. Citing the United Nations Convention of the Law of the Sea [UNCLOS], the Minister said that “the Greek Coast Guard cannot proactively stop a vessel for inspection for an illegal act such as illegal immigration, outside territorial waters.” Priceless words, which help illuminate both the fabrication and the grim truths of the Greek propaganda machine.
Mitarachis’s statements are flawed, firstly, because this was a situation of distress which, as evidenced by overcrowding alone, necessitated rescue as soon as the Greek authorities became aware of the boat. At the very latest, the Greek coastguard had a duty of rescue following alerts from the NGO Alarm Phone, relaying the passengers’ pleas for assistance. Article 98 of UNCLOS, the Convention Mitarachis cites, requires states to oblige masters of ships flying their flags to ‘render assistance’ to persons in danger at sea and to proceed as soon as possible to a vessel in need of assistance ‘if informed of this need, insofar as may be reasonably expected of the master.’ This obligation is triggered by ‘a signal from any source that persons are in distress.’ Under the International Convention on Maritime Search and Rescue, coastal states undertake the role to coordinate search and rescue within their designated search and rescue zones. This includes the parts of those zones that are international waters.
Truth in the Shadow of Propaganda
Yet Mitarachis’ analysis is illuminating precisely in its inaccuracies. For years, EU Member States – as well as historically the United States and Australia – have relied on rescue authorities to conclude interception and pushback from international waters. Flipping this timeworn legal argument on its head, Mitarachis illuminates the elasticity and opportunism that propelled this legal argument from its very inception. The newspeak of border management is now quite old, and patient observers may readily identify its rich internal contradictions.
Under the law of the sea, if a vessel is in distress, a state’s coastguard is authorized to intervene and conduct rescue operations, irrespective of whether the vessel is within the state’s maritime regions. In 2006, the UNHCR’s Executive Committee observed, that ‘several States were classifying some interception measures as rescue at sea operations, to use SAR operational capacity for such activities’. These are “cloaked interceptions”. In the momentous Hirsi Jamma and Others v Italy  case, the Italian government tried to defend its policy of high seas interdictions and collective expulsions of migrants by arguing that it was acting to rescue the migrants from drowning. According to this argument, this engagement in search and rescue absolved it from its human rights commitments, including with regard to non-refoulement. This argument was dismissed by the Court, which held that describing the events as rescue operations on the high seas could not allow Italy to circumvent its jurisdiction and therefore evade responsibility for human rights violations. EU migration policy, as well as the policies of individual Member States like Italy, in particular, has long relied on the obligation to save lives at sea to legitimize closed borders. The EU and its Member States have strategically forged gaps in refugee and human rights protection precisely by relying on the expanded authorities to intervene that situations of distress create.
The argument’s reversal is as sardonic as it is convenient. And yet, from a critical perspective, sometimes the erroneous, twisted, opportunistic interpretations teach us more about the law than its correct application. The jurisprudence of the European Court of Human Rights (e.g. in Hirsi) and the HRC (e.g. in A.S and Others v Italy and A.S and Others v Malta) have sought to fill protection gaps that exist on the high seas, when no state has effective control over migrants in distress. But when we ask ourselves how these “gaps” in the Mediterranean have remained so deadly for well over a decade, part of the answer is not that they have appeared despite the law, but that the law renders them possible in the first place.
Trying to avoid the euphemistic understatement of “accountability gaps”, one of us has suggested they should be regarded as “maritime legal black holes”. States and EU agencies can rely on international law not only to save migrants and asylum seekers, but also to distance themselves from responsibility. One example of how this dangerous legalism works, which we have often observed in Greece’s maritime spaces, is the request that Frontex assets leave the sites of violations. Such requests presumably make use of the sea as a legal space that allows actors to avoid accountability.
Accountability within the Gaps?
Of course, despite all this, the question of accountability inevitably resurfaces yet again. If the testimonies about a tow-away are true, the Pylos shipwreck is one of the clearest examples of border violence requiring criminal investigation – potentially on the international level. This call for criminal investigation is itself not new; and scholars have raised important concerns about advocates’ efforts to penalize human rights violations, more broadly. But perhaps there is a ray of hope in the Greek citizens and residents who have gone to the streets to protest border violence. To be sure, Greek and EU authorities will continue to obfuscate. But this only highlights the need for pressure by ordinary people, in Greece and elsewhere, against the EU’s racist and deadly border regime.
Other governments could also conceivably play an important role in pushing for investigation – EU member states, and beyond. But as long as the overarching policy aim is to deter racialized migrants from entering the EU, tragedies like the one in Pylos are bound to continue.
As the normalization of extreme border violence seems like a fait accompli in many parts of the world, we can only hope that this latest atrocity can ring an alarm.