Conflict over the Code of Conduct
In a joint statement, Amnesty International and Human Rights Watch claim that thousands more refugees and migrants could be at risk of dying in the Central Mediterranean, if the European Commission’s plan for a Code of Conduct for NGOs is improperly conducted. The Code of Conduct for NGOs was first announced by the European Commission on 6 July 2017, as part of an EU Action Plan, which aims to support Italy and reduce migratory pressure of illegal migrants along the Central Mediterranean Route. In the first six months of 2017, Italy received over 82,000 migrants, which has stretched its capacities to the limit.
The EU Code of Conduct seeks to regulate NGOs and privately-owned ships that are involved in search and rescue operations in the Mediterranean. According to Frontex, the EU Border and Coast Guard Agency, the total number of illegal border crossings has fallen by 68% in the first half of 2017, compared to the first half of 2016. However, the numbers have continued to grow on the Central Mediterranean Route with more than 2,000 people losing their lives in the Central Mediterranean since January 2017.
Search and Rescue Operation
Over the past three years, search and rescue operations have moved farther away from the Italian coast towards the edge of the Libyan territorial waters, and in the case of many NGOs, even entering the Libyan territorial waters. This is perhaps as a result of the change in tactic from the people smugglers to start using rubber dinghies to transport migrants. Formerly, the smugglers commonly used large and generally unseaworthy fishing vessels which they captained themselves and were destroyed by Italian authorities upon arrival. This was expensive, dangerous and would put themselves at the risk of capture by authorities.
The use of rubber dinghies decreased costs for the people smugglers, increased the danger for the migrants and increased the dependence on the search and rescue operations. The rubber dinghies are completely unsuitable for the high seas, and as a result the search and rescue operations are happening closer and closer to the Libyan territorial waters. This means that the majority of migrants and refugees are being transported most of the way along the Central Mediterranean Route by the NGO search and rescue operations. Many consider this to be a pull factor for migrants to attempt this journey and that this system encourages people to risk their lives in the Mediterranean as they will most likely be rescued.
The Pull Factor
The concept of NGOs acting as a pull factor for migrants has caused a lot of tensions in Italy, between its political parties and between Italy and other EU Member States. The Italian Prime Minister, Paolo Gentiloni, said “I want to ask Europe, some European countries to stop looking the other way, because this is not sustainable”. Other Italian politicians have adopted a populist rhetoric of blaming the NGOs as the main source of Italy’s migrant problem and have accused them of running a ‘sea taxi’ for migrants. This strong message has resonated with the Italian public, who also consider the situation to be unsustainable.
Frontex are reported to be very frustrated with the NGOs role in the Mediterranean and there are claims by some commentators that some NGOs are in contact with smugglers, directing them towards the areas where they can then ‘rescue’ the migrants. While the accusation did not come from Frontex, it did result in an investigation by the Italian Senate’s parliamentary inquiry into the practices of NGOs in the Mediterranean. The investigation found that there was no proof of wrongdoing, but concluded that NGOs constitute a ‘pull factor’ and that they should cooperate more with maritime police operations. NGOs have rescued more than 80,000 refugees and migrants crossing from Libya since the Italian operation Mare Nostrum ceased in 2014.
The Code of Conduct
The Code of Conduct for NGOs aims to regulate and bring NGOs under the control of the Italian Government and the European Union, and sets out basic rules for NGOs operating search and rescue missions in the Mediterranean. The draft pact bans NGOs from entering Libyan territorial waters to undertake rescues and from using lights to signal their location to vessels at imminent risk of sinking. NGOs will be obliged to allow police travel with them in an attempt to identify people smugglers and human traffickers who often try to hide amongst the migrants. It also requires NGOs to return to port to disembark refugees and migrants, rather than transferring rescued people onto other vessels at sea. NGOs are also obliged to sign and comply with the Code of Conduct, which suggests that they may be refused entry from ports if they fail to do so.
Amnesty International and Human Rights Watch say that it should be the aim of everyone to make search and rescue operations more effective at saving lives and that they should have been consulted before the writing of the Code of Conduct. Importantly, they state that: “the Code of Conduct may in some cases hinder rescue operations and delay disembarkations in a safe place within a reasonable amount of time, breaching the obligations that both states and shipmasters have under international law of the sea.”
The Code of Conduct for NGOs has come at a time when the Italian Government has called for help from the Member States and from the EU Institutions, and at a time when Italy is under intense political and social pressure. Amnesty International and Human Rights watch suggest that the EU and its migration policy have failed to provide Italy and other front-line Member States with the necessary support and assistance, and have instead focused on training the Libyan coast guard to build up its capabilities to stem the flow of migration in Africa.
The EU would argue that the pull factor, strengthened by the role of the NGOs, has prevented some of the EU’s policies, including its training of the Libyan coast guard and its work with countries of origin across the continent, from having a greater impact on the migration crisis. This Code of Conduct will help to regulate what many consider to be a haphazard approach to saving lives in the Mediterranean.
In an ongoing attempt to boost cooperation with the EU, Italian Prime Minister Paolo Gentiloni met French President Emmanuel Macron and German Chancellor Angela Merkel on 12 July, 2017. He stated that “Progress has been made regarding migration policy, but it is not yet sufficient”.