New legal opinion underlines the risk of criminalisation of sea rescue by a draft law of the German government

The rescue ship SEA-EYE 4 left the Italian port of Taranto on Friday night (8 December 2023) and set off on its last mission of the year. This is the ship’s fifth mission of the year. One of a total of three detentions of the ship led to the cancellation of a mission. Sea-Eye appealed against all three detentions before Italian administrative courts. A decision by the courts is still pending in all three cases.

Andreas Krahl, a member of the Bavarian state parliament and nurse, is also on board. This is the second time he has spent the month of December on board the SEA-EYE 4. Krahl is part of the joint medical team of German Doctors e.V. and Sea-Eye e.V. in the on-board hospital of SEA-EYE 4. The Bonn-based aid organisation German Doctors has been working with Sea-Eye for three years and is once again providing the on-board doctor Nour Hanna as medical director of the mission.

“The humanitarian situation at Europe’s external borders is deteriorating. This year, at least 2,500 people have already died while fleeing across the Mediterranean. Our last joint mission with the SEA-EYE 4, in which four people could only be rescued dead, once again brought this sad fact clearly to our eyes. It is therefore all the more important that an experienced doctor from German Doctors, Nour Hanna, is once again on board on this last mission of the SEA-EYE 4 this year. As a paediatrician, she already volunteered on the SEA-EYE 4 last year before Christmas and is also familiar with the situation of refugees in Greece. She also cared for patients at our medical centre in Thessaloniki as a German Doctor. We are very grateful to her and the entire crew for their important volunteer work and wish everyone involved all the best for the mission,” says Dr Harald Kischlat, member of the board of German Doctors e.V.

While the crew of the SEA-EYE 4 is on its way to the operational area, the German Bundestag is discussing the so-called Repatriation Improvement Act. It provides for an amendment to Section 96 of the Residence Act. A new legal opinion by Prof. Dr Aziz Epik (University of Hamburg) and Prof. Dr Valentin Schatz (Leuphana University of Lüneburg) expressly warns of the danger of criminalising civilian sea rescuers through the draft law presented by the Federal Ministry of the Interior.

“The amendment of Section 96 (4) of the Residence Act proposed by the Federal Ministry of the Interior, which will extend to cases of altruistic assistance for unauthorised entry, poses the risk that civilian sea rescuers will be criminalised. Section 96 (4) of the Residence Act refers to the law of the European country of entry, for example Italy, for the question of the unauthorised nature of the entry. We consider that at least some of the rescued people will formally enter the country of disembarkation (for example, Italy) without formal authorisation. Accordingly, Section 96 (4) of the Residence Act would apply. That said, in our opinion, the conduct of civilian sea rescuers during the rescue operation and the transfer of people to a port of disembarkation would be justified as a state of emergency under Section 34 StGB. However, this view is not undisputed and it is also not sufficient to include a corresponding intention of the legislator in the explanatory memorandum to the law, as law enforcement authorities and criminal courts are not bound by such an explanation. We therefore advocate to incorporate at least an explicit exception to the offence in Section 96(4) of the Residence Act, as is already permitted under European law pursuant to Directive 2002/90/EC for all forms of humanitarian assistance,” says Prof. Dr Valentin Schatz, Junior Professor of Public Law and European Law at the Leuphana University of Lüneburg.

In the past, Italian and Maltese authorities have repeatedly questioned whether a distress case involving people fleeing in the Mediterranean is a distress case at all. For example, the Maltese Rescue Coordination Centre asked merchant ships such as the MTS Southport in December 2022 not to rescue people and to change course. The people later rescued by the SEA-EYE 4 included seriously injured people who would not have survived the crossing to Italy.

“In precisely such a case, the draft law makes it possible to initiate criminal proceedings against the Sea-Eye crew. Because if a European authority does not recognise an emergency at sea as such, but the SEA-EYE 4 rescues the people from acute life-threatening danger and then disembarks them in a European port, the German public prosecutor’s office would at least have to investigate whether Sea-Eye acted in accordance with the law and initiate investigations against our crew. This draft law must not come into force because it criminalises crew members and discourages them from providing humanitarian aid on a rescue ship. The Italian strategy of criminalising and frightening sea rescuers must not become the legal standard in Germany,” says Gorden Isler, Chairman of Sea-Eye e.V.

Four bodies handed over to Italian authorities

On Sunday evening, all 48 survivors, including 32 men, 13 women, one child and two babies, were able to disembark from the SEA-EYE 4 in Vibo Valentia. The four bodies of the people who had not survived the dramatic rescue operation on Friday morning (27.10.) were handed over to the Italian authorities.

During the rescue operation, the refugees had fled in their overcrowded rubber boat from the so-called Libyan coast guard, which had harassed the boat with dangerous manoeuvres by its coast guard vessel. In the process, some people had fallen into the water. Three people nearly drowned and their lives were in danger. The medical team managed to stabilise two patients. The third person was a pregnant woman whose unborn baby’s heartbeat could no longer be detected, which meant that a life-threatening situation, if not the death of the child, had to be assumed.  The pregnant woman was handed over to the Italian coast guard off Lampedusa after they refused to carry out an urgent medical evacuation by helicopter.

A mother identified a twelve-year-old girl as her daughter among the four bodies yesterday. Her nine-year-old brother is also on board. A young man who nearly drowned identified a deceased woman as his wife. At least two people have been missing friends since the encounter with the so-called Libyan coast guard.

“The actions of the so-called Libyan Coast Guard on Friday showed once again how dangerous this militia is. They are not sea rescuers. They are not about protecting life. We document and publish their ruthlessness and incompetence again and again, but nothing changes. The cooperation of the EU states with these violent militias must finally be stopped,” says Gorden Isler, chairman of Sea-Eye e. V.

Press release on the rescue operation (27.10.23): https://sea-eye.org/en/pregnant-woman-fights-for-her-life-on-sea-eye-4-italy-sends-no-help/ 

Italian coastguard conducted nine-hour port state control

On Friday, the SEA-EYE 4 arrived at the port of Brindisi assigned by the Italian Coast Guard. 51 people were able to leave the ship, having been rescued earlier in the night from Tuesday to Wednesday in the Libyan search and rescue zone. Police, 118 rescue workers, volunteers of the Red Cross and civil defence were on the scene, according to Brindisi Report.

“We are very grateful to the local emergency forces of Brindisi. The disembarkation of the rescued people went smoothly, very committed and dignified,” said Gorden Isler, chairman of Sea-Eye e.V..

Still on Friday evening, the harbour master of Brindisi announced a port state control by the Italian coast guard for Saturday. In recent years, such port state controls have repeatedly led to the detention of sea rescue ships and to disputes between the Italian coast guard and the German flag state authorities.

The port state control began on Saturday morning at around 9 am. Two inspectors from the Italian Coast Guard boarded the ship and conducted an intensive technical and nautical inspection. The crew had to demonstrate several drills. These included abandoning the ship in an acute emergency and fire fighting training. The technical and nautical equipment, the ship’s certificates, the crew’s employment contracts, the crew quarters, the survivors’ accommodation, the shipboard hospital and the engine room were intensively checked. In total, the port state control lasted nine hours and ended at around 6pm.

“In an incomparably intensive control, the inspectors found no reasons for the vessel to be detained. The Italian Coast Guard thus confirms to us that the ship and crew are acting in accordance with international regulations. We are proud of our crew and our nautical-technical department. Now the ship can continue the ongoing mission, leave the port and immediately return to the area of operation to save lives,” Isler continues.

First use of federal funds for civil sea rescue mission

On Friday afternoon (13.10.2023), the German rescue ship SEA-EYE 4 left the port of the Spanish town of Burriana and set off on its fourth mission of the year. It is the first mission to be partly financed by federal funds. In November 2022, the German Federal Parliament decided to support civil sea rescue with budget funds. The Federal Foreign Office has now implemented the resolution and approved an application for funding of rescue missions with the SEA-EYE 4.

However, a broad alliance is involved in the overall financing of the mission. In addition to hundreds of private donors, the current mission is also secured through funding from the UN Refugee Agency, the German Postcode Lotterie and with municipal funds from the German cities of Wolfsburg and Greifswald.

“Civil sea rescue is supported by an increasingly broad alliance. The fact that the German government is now, after so many years of humanitarian emergency at the EU’s external borders, finally taking action and actually participating in the funding of a civil sea rescue mission is a very important political signal,” says Gorden Isler, chairman of Sea-Eye e.V..

The dispute over the funding of civil sea rescue organisations recently sparked controversy in political circles in Berlin. In particular, the distancing of the German Chancellor has caused irritation among Sea-Eye rescuers.

“There must be unquestionable agreement across all party lines that we save people from drowning and that there cannot be a single reason to abandon people at sea who are seeking protection. Human dignity must never be relativised in migration policy,” Isler continues.

Since mid-2021, the globally active medical organisation German Doctors has been cooperating with the civil sea rescue organisation Sea-Eye.

“We do not want to close our eyes to the fact that countless people are still risking and losing their lives as they flee across the Mediterranean. Our main focus is on rescuing people from acutely life-threatening situations – in our projects as well as in the Mediterranean,” explains Dr Christine Winkelmann, responsible for this project.

As a mission doctor on SEA-EYE 4’s fourth mission this year, Barbara Held will provide basic medical care to people in distress who have been rescued from the Mediterranean Sea by the SEA-EYE 4 on behalf of German Doctors.

Commenting on her motivation, the experienced general practitioner and ship’s doctor says: “This will be my eighth rescue mission. I wish it could be my last, because people would no longer have to flee. But that’s just a dream at the moment.” For her first mission with the SEA-EYE 4, Barbara Held hopes “that the crew will be in the right place at the right time”.

Overall, the number of arrivals of people seeking protection in Italy has almost doubled compared to the previous year. However, sea rescue organisations are only deployed in emergencies: in 2% of cases, sea rescue organisations from Germany were involved in disembarking people seeking protection in Italy (source: ISPI). In total, more than 2,400 people died in 2023 trying to cross the Mediterranean Sea to seek protection in Europe. This month marks the tenth anniversary of the severe Lampedusa disasters, in which hundreds died off the coast of Lampedusa on 3 and 11 October 2013. Since then, more than 28,000 people have lost their lives at the EU’s external borders. This makes them the deadliest external borders in the world.

Listen to refugees, not only today!

Together with ‚Refugees in Libya‘ we would like to share two testimonies of refugees in Libya with you so that you can get a small glimpse of the inhumane conditions refugees face in Libya everyday.

TESTIMONY 1

This woman, Habiba, a mother of four, is sleeping under a tree on the road near the Office of the UNHCR Tripoli al-Sarraj.

Ben London (co-founder of ‚Refugees in Libya‘): Hello sweetheart, you said you don’t have a home and right now you’re sleeping under the tree here near the UNHCR office. Where is your husband and what is your story?

Habiba: My husband has a broken hand, he can’t work, and you know the situation in Libya when you lose a limb or it breaks and you have a family. We don’t have a house and we don’t even have anything to eat or drink, honestly we are very tired now in the middle of the day and my children haven’t eaten anything yet, either the UNHCR go and stand in front of the door, we are evicted and no one hears us sometimes they give us numbers, tell us call here or send messages, I mean send your order here. Some of us don’t know how to use the phone, sometimes you call, but no one answers.

Ben London: Now you have been here for a week. What have the people of UNHCR told you?

Habiba: When I tried to talk to them, they didn’t tell me anything. They just gave me an appointment for 7 July 2023.

Ben London: Are you new here?

Habiba: No, it has been two years since my registration with the UNHCR, but the agency has not done anything for us, yet.

TESTIMONY 2

This man with a broken leg lives on the street near UNHCR office in Tripoli Sarraj neighborhood

Ben London: You are sleeping here outside the UNHCR office. What’s your story?

Man: I’m a refugee with a broken leg. I live on the street, registered with UNHCR since 2021. I have not found any help from UNHCR since then.

I need surgery for my leg and I need shelter. I did not get a response or the simplest human rights. There is no food or water and I am very tired. In general, I want to have an urgent operation and treatments. Because we are poor, we need help and we need attention because we are sleeping on worn mattresses and on the floor.

Both testimonies were translated from Arabic to English.

We thank ‚Refugees in Libya‘ for collecting the testimonies and sharing them with us. We would also like to point out the demands of ‚Refugees in Libya‘ here.

🟠 Evacuation of Refugees from Libya and Tunisia to safe countries

🟠 Freedom and evacuation of the 250 refugees, who are still imprisoned in Ain Zara detention camp in Libya since the mass protests in 2021

🟠 Fair treatment by UNHCR for all refugees in Libya and other North African countries

🟠 Put an end to the financing of the so-called Libyan Coast Guard and detention camps by the EU and European countries

🟠 Justice for those who have been murdered, tortured or arbitrarily detained

🟠 Libya should sign the 1951 Geneva Refugee Convention

🟠 Recognition of ‚Refugees in Libya‘ as an organisation to represent these demands and to have regular talks with UNHCR and other institutions.