After a welcome, albeit short, discussion and amendment process on the Code of Conduct, MSF concluded that the organisation was unable to sign the code as several of its key concerns and requests have remained unanswered.

There are specific commitments in the Code that are red lines for MSF because they will not only be unhelpful for rescue activities, but could result in reduced rescue capacity, and consequently result in further drownings.

What’s more, this Code for NGOs could have been framed and written as a tool to make Search and Rescue safe and effective, but instead it has been framed as part of a political project to generate an EU-wide migration control policy. While that EU-wide migration policy is extremely important for Italy, Search and Rescue has just one objective – to save the lives of people in distress and at risk of drowning. MSF cannot sign a Code that mixes other priorities with the life-saving imperative.

Since starting Search and Rescue activities in May 2015, in order to help fill a gap created by the termination of the Italian “Mare Nostrum” rescue operation, MSF has always worked under the coordination of the Italian Maritime Rescue Coordination Centre, and in accordance with international and maritime laws. If the Code had been designed in order to strengthen rescue capacity, we might be in a different position today; but since the code undermines the current rescue capacity, both in its details and in the way it is framed, MSF is unable to sign.

What are MSF’s main concerns about the content of the Code of Conduct?

Saving Lives is not the Code of Conduct’s sole core objective

The introduction to the Code of Conduct – which we requested to be amended but which has remained unchanged – makes it very clear that the Code cannot be separated from solidarity among EU Member States, and therefore does not have saving lives as its sole core objective. We recognise that Italy is facing the arrivals of migrants largely alone, and it is legitimate for Italy to seek systems of solidarity with other EU Member States; but it is not legitimate to co-opt the life-saving humanitarian rescue response into a larger project. The life-saving job should be just that, and that alone. Rescue at sea is not a choice, it is an obligation and it should be the utmost priority.

We asked for the Code to be introduced and framed as a tool specifically to ensure SAR would be effective and efficient, with acknowledgement of the difference between humanitarian SAR activities on the one hand and border control or migration policy on the other; but the Code remains essentially framed as a migration policy tool, to which we are very uncomfortable in subscribing.

The Code of Conduct is ambiguous with key clauses remaining unclear

During our discussions with the Ministry of Interior, we asked for clarifications on several points but did not receive satisfactory answers. As an example, the use of “grave and imminent danger requiring immediate assistance” should be in line with the definition of distress used by Frontex (any unseaworthy, overcrowded boat with women and children on board etc.) but this was not in the original wording of the Code nor clarified during the short consultation process. Likewise, the requirement to contact the flag state of the ship and the nearest official Search and Rescue Region before the MRCC in Rome is unclear; who will assume responsibility for the rescue and for the identification of the port of safety? Will rescue operations be delayed? Lastly, the Code seems to currently imply that our teams be required to proactively engage in law enforcement and investigative activities that are outside the scope of our medical-humanitarian remit. This could seriously affect our neutrality and therefore our ability to obtain access to populations in need elsewhere and affect the security of our teams, at sea, in Libya and around the world.

Without “transshipments” fewer SAR boats will be available to save lives in the Mediterranean
The clause forbidding so-called “transshipments” (the transfer of rescued people from one boat to another) may prevent smaller NGO rescue vessels from operating at sea, decrease the lifesaving search and rescue capacity available at any given time, and in turn claim lives. The clause does permit such transshipments, but makes it clear that as a rule NGOs should avoid transfers and head straight back to port.

Since last year, we’ve seen migrant boats depart in waves and at times found ourselves surrounded by up to 20 overcrowded rubber boats, desperately in need of rescue, at the same time. In such instances, the ability of smaller vessels to give lifejackets, water and first aid without taking people on board has bought time and undoubtedly saved lives. Whilst smaller rescue boats do sometimes embark people in situations of grave danger, this results in serious overcrowding and the crew and the rescued people would be at risk if small NGOs were made to transport rescued people back to Italy.

Likewise, if all humanitarian organisations are forced to head to Italy after each rescue, it’s likely that each boat would be unavailable for rescue for up to a week at a time thus resulting in critical gaps at sea, delayed rescues, and increased risk to those desperately fleeing Libya over the sea. The search and rescue boats in the Central Mediterranean are already overstretched and this clause of the Code would likely reduce the number of SAR vessels and potentially lead to further drowning tragedies.

Transshipments are noted as a key tool in internationally-recognised SAR guidance, and to date, the MRCC has frequently instructed smaller boats to transfer people they have rescued to larger vessels precisely because they recognise that this is the safe way to ensure lives are saved and sufficient rescue assets are on call where and when they need to be.

How does the Code fit into the bigger picture?

This Code seems to be entrenching the view that states can outsource the life-saving response to NGOs, allowing states to concentrate their efforts on naval and military operations. The responsibility to organise and conduct search and rescue operations at sea lies - as it always has - with states. As such, our current rescue activities are simply filling the void left by Europe. We had hoped this gap was only temporary when we first started rescue operations in 2015 and we have been calling on European states to set up a dedicated and proactive search and rescue mechanism to support Italy in its efforts to save lives at sea ever since. If this code is intended to embed the notion that Search and Rescue is not a responsibility of states that would be a dangerous precedent.

The people we treat in detention centers around Tripoli and those we rescue at sea, all share stories of inhumane treatment. The strategy currently being proposed by the Italian government and the EU to contain migrants and refugees in Libya through military operations and support to Libyan Coast Guards, is in the current circumstances, extremely worrying. Libya is not a place where people should be returned to, be it from European territory or from sea. We do not believe that search and rescue should be the solution to address boat migration and mortality at sea, but it is needed in the absence of any other safe alternative for people to seek safety. Cutting the only and last escape they have from exploitation and violence cannot be an acceptable solution. 

The fact that this military operation is being proposed at the same time the Code of Conduct is being introduced blurs the lines of the environment we are working in, and makes us uncomfortable to potentially sign up to something that could be part of a bigger plan, including military intervention.

Will MSF continue to conduct search and rescue operations at sea?

Yes, MSF teams will continue to save lives at sea. While we have decided not to sign the Code of Conduct, our teams already follow the majority of the rules laid out in the code and have strictly adhered to all national and international laws. We have also fully cooperated with the Italian authorities including the Maritime Rescue Coordination Centre (MRCC) in Rome since we began search and rescue operations in 2015. As such, we will continue to conduct search and rescue operations just as we have for the past three years, and fully commit to respect the commitments in the Code that are not within the remit of our stated concerns. We will continue to engage constructively with all requests from judicial police or other authorities in line with our legal obligations.