Dr Daniel Ghezelbash, Macquarie Law School                        

Accountability of the actions taken by states against migrants and asylum seekers at sea is stifled by secrecy. Governments carefully control information about the exact nature of their actions in order to shield themselves from accountability. Critics can hypothesise that certain actions are being undertaken that are unlawful, but the ambiguity and uncertainty created by the secrecy severely detracts from the persuasiveness of such claims.

As discussed at length in a separate post, the legality of actions taken by states against asylum seekers at sea is governed by complex overlapping regimes of international law. Security-related interdiction measures involve states intercepting migrant vessels in order to enforce their domestic immigration laws. The legality of such actions will depend on factors like the location of interception, whether the vessel is flagged or stateless, and where the asylum seekers and migrants are taken to after the interception. Different rules govern the obligations of search and rescue, which kick in where a vessel is in distress. In such circumstances, states must ensure that vessels flying their flag render assistance to boats in distress.

By withholding information about the condition and location of migrant vessels, and not articulating the legal basis on which they purport to be acting, states effectively create a ‘grey zone’ in which it is impossible to determine whether a particular interaction with a migrant boat was authorised under international law. This frees up states to carry out security-related interdiction in circumstances where they may not have authority to do so under international law or to cloak security-related interdiction as search and rescue events. At the same time, secrecy lets states evade their obligations to engage in search and rescue. They may ignore boats that are in distress to avoid taking on responsibility for the asylum seeker passengers.

This underscores the importance of the role that the SAR NGOs play in the Mediterranean. In addition to saving lives through their search and rescue operations, they also act as witnesses to actions (or lack of action) taken by governments against migrant boats. By piercing the veil of secrecy operating at sea with their eye witness accounts, the NGOs play a crucial role in fostering government accountability. The SAROBMED initiative provides platform to collate, centralise and analyse these eye witness accounts. This paves the way for legal challenges. The first has already been mounted, with SAROBMED contributing to the ‘Hirsi 2’ application (or link to our post on this if we have one) submitted to the ECHR. The case was filed against Italy by seventeen survivors of a fatal incident involving a boat found in distress of the coast of Libya.