Image: Creative Commons, Noborder network. Cayuco approached by Spanish coast, 2008.
In our latest article for Rights!, new editorial board member Sabrina Tucci discusses the criminalisation of humanitarian rescue ships in the Mediterranean, though specific reference to Italy and the possible prosecution of far-right politician and former Deputy Prime Minister Matteo Salvini. This article is cross-posted, having first been published by the Refugee Law Initiative on August 27 2020.
Note on terminology: The author uses the term ‘migrant’ to refer to all people on the move. This includes recognised refugees and asylum seekers.
As every summer it is boiling hot in Italy and while people flock to tourist beaches, irregular migrants crossing the Mediterranean Sea are making headlines again fuelling a rhetoric that blames them for the ills of the country, currently the spread of Covid-19, and humanitarian ships for aiding their arrival.
What is new this summer is that on July 30 Italy’s upper house voted 149 to 141 to strip the head of the anti-immigrant League Party Matteo Salvini of his parliamentary immunity, paving the way for his trial on charges of kidnapping and illegally detaining migrants at sea off the coast of Lampedusa, south of Italy.
Prosecutors in the Sicilian city of Palermo accuse the far-right leader of abusing his powers as Deputy Prime Minister and Interior Minister under the first Giuseppe Conte’s government, when in August 2019 he prevented 121 migrants, including 30 minors, from disembarking in Italy. The migrants were rescued in the central Mediterranean by the Spanish ship Open Arms and forced to remain on board for 19 days in extreme conditions. Many among those rescued by the humanitarian vessel were reported having suffered life-threatening forms of violence in Libya and present third degree burns and gunshot wounds.
Salvini, who risks up to 15 years in jail if convicted, alleges this decision was collectively reached within the government to stop migrants from disembarking the search and rescue vessel (SAR), until a deal was negotiated with EU countries to take them in. Behind it, there is the assumption that SAR activities in the Mediterranean Sea indirectly support smuggling and trafficking networks and represent a pull factor for irregular migrants. While shared by politicians across Europe and beyond, this assumption is contested by academics and human rights experts. In their 2019 study on the migratory flows from Libya to Italy, Eugenio Cusumano at Leiden University and Matteo Villa at the Italian Institute for International Political Studies found no relationship between the presence of non- governmental organizations (NGOs) at sea and the number of migrants leaving Libyan shores. Most recently, in March 2020, Doctors without Borders talked about the oversimplification of a narrative that is used as a tool to defend politics that are failing to solve the humanitarian crisis in the central Mediterranean Sea.
This narrative is part of the broader criminalisation of solidarity, the policing of people who assist migrants without regular documentation, including through reception, the provision of food, housing and other services, as well as through SAR operations. People from different walks of life, fishermen, lifeguards, lawyers, doctors, journalists, priests, volunteers, NGOs and even government officials who, over the past few years, have increasingly been portrayed as criminals and investigated for facilitating irregular migration.
At EU level, the Facilitation Directive urges EU member states to impose sanctions on those who facilitate the entry, transit and residence of any “person who is not a national of a Member State”. At Italian level, four directives issued by Salvini between March and April 2019 instruct maritime border control authorities to prevent entry into Italian territorial waters and disembarkation in Italy of vessels carrying rescued migrants considered to be a threat to public security and order.
Notwithstanding the well documented abuses against migrants in Libya and despite concerns by six UN Special Rapporteurs who called on Italy not to adopt legislation that criminalizes the work of civil society, encourages xenophobia and discourages rescue at sea, Law Decree 53/2019 became Law 77 in August 2019. Since its inception, it has led to the crackdown on acts of solidarity and hindered crucial lifesaving activities, imposing severe penalties on boats and people conducting SAR operations in the Mediterranean Sea, including confiscation and impounding of the vessels and fines up to €1 million for breaching the ban on entry into Italian waters.
The case on the Open Arms is not an isolated one. In 2019 the ship Sea Watch 3, operated by the German NGO Sea-Watch, was also prevented from disembarking in Sicily for over two weeks after rescuing more than 50 people. In June, captain Carola Rackete was arrested after leading the ship into the port of Lampedusa, disregarding the entry ban in place and calls for reroute to Libya. Rackete was released in July, when a judge ruled that she acted in a state of necessity and in line with her obligations under international law, and acquitted in early 2020.
The criminalization of rescue NGOs in Italy, however, pre-dates the 2019 decrees and law. In August 2017 Italian prosecutors ordered the seizure of the Iuventa, a ship operated by the German NGO Jugend Rettet, and the investigation of its crew for allegedly facilitating the irregular entry of migrants into Italy between 2016 and 2017. At the time of writing, despite a computerized investigation by Forensic Architecture and Forensic Oceanography which demonstrates that Iuventa was actually saving lives, its crew is still risking up to 20 years in prison.
Regardless of who and what initiated this pattern of demonization of humanitarian organizations and workers, international law clearly binds states to provide assistance to people in distress at sea, including by cooperating with other states and ensuring disembarkation to a safe port. This is defined, among others, in the United Nations Convention of the Law of the Sea (UNCLOS) Article 98, and the International Convention for the Safety of Life at Sea (SOLAS), Regulation V-33. This obligation also applies to rescue ships operated by humanitarian organizations in the Mediterranean Sea, as explained by Erik Røsæg at the University of Oslo, and regardless of whether the rescue operations are believed to have an undesired pull effect, encouraging migrants to travel.
Similarly, the International Convention on Maritime Search and Rescue (SAR) establishes the obligation to rescue those who are shipwrecked and ensure them a “place of safety“, as referred to in the Annex, paragraph 1.3.2. The concept of place of safety is clearly defined by the IMO Guidelines on the Treatment of Persons Rescued at Sea, 6.12, as “a location where rescue operations are considered to terminate…a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met [and ]… a place from which transportation arrangements can be made for the survivors’ next or final destination.” Disembarking migrants to Libyan ports, internationally regarded unsafe, would amount to a violation of the principle of“non-refoulement”, the cornerstone of international refugee law, which prohibits the return of migrants to places where their life would be at risk.
Lastly, the UNHCR in its Legal Brief on International Law and Rescue at Sea clarifies that “A ship should not be subject to undue delay, financial burden or other related difficulties after assisting persons at sea; therefore coastal States should relieve the ship as soon as practicable”.
Above all, saving lives is an ethical and legitimate act. It is a matter of ensuring the right to life and human dignity, to which every human being is entitled, including migrants.
In the meantime, too many keep drowning because the EU and Italy deny access to safe and legal entry routes, leaving them with no options other than risking their lives during an extremely dangerous sea journey. Too many keep drowning because of deliberate delays in rescue and illegal push-backs to Libya. If they die, it is believed, others may be discouraged from attempting the crossing. The numbers dispel this myth: as of 13 Aug 2020, 396 migrants died or went missing while trying to get to Europe. Despite this, 37,072 migrants arrived by sea, and 15,298 migrants arrived to Italy alone.
The EU and Italy keep avoiding the real questions around migration and treating this phenomenon as an emergency rather than a structural feature of our times which will continue and inevitably exacerbate (think of people losing everything because of climate change and the current pandemic). Hindering the operations of SAR NGOs will only put more lives at risks. There is a need to address the complex causes of migration and put people’s lives at the forefront of any political decisions: first and foremost, Italy should recede its migration agreement with Libya, including stopping the funding of Libyan Coast Guard, facilitating the closure of detention centers, establishing safe alternatives to detention and increasing evacuations from Libya. Taking a leadership role in saving lives is possible.
Sabrina Tucci is a human rights activist currently researching the labour and sexual exploitation of refugees and asylum seekers in the agricultural fields in Italy at University College London. She previously worked for Amnesty International campaigner on business and human rights and served in Palestine as human rights monitor and advocate on behalf of the Ecumenical Accompaniment Programme in Palestine and Israel. Sabrina has extensive field work experience in the MENA region, Africa and Europe and has provided support to migrants held in immigration removal centres in the London area for Detention Action. Sabrina is an editorial board member of Rights! and you can follow her work on Twitter @sabrinatucci