Francesca Mussi is a Research Fellow in International Law at the University of Trento, where she is currently engaged in a research project on international and regional human rights law in the administration of justice in Somalia. She holds a Ph.D. in International Law from the University of Milano-Bicocca (2017), where she defended a thesis on the contribution to the development of an international legal framework on migration at sea made by Italian judicial decisions as a form of State practice, and a Law Degree from the University of Parma (2011). Her main fields of expertise include international migration law, international human rights law and international law of the sea.
In recent years, a pivotal role in migrants’ rescue operations in the Mediterranean Sea has been played by civil society organisations, and particularly by the more structured NGOs.
The role of NGOs has created much controversy especially in Italy, a country that has faced unique migratory challenges in terms not only of arrivals registered but also of dead and missing on the Central Route (see the data available in a recent report of the IOM). In December 2016, the Financial Times highlighted the frustration of Frontex, the agency of the European Union in charge of coordinating external border control efforts (see the article). The European border force had reservations about sea rescue operations. In its opinion, letting migrants believe that all they need to do is to take the sea to be rescued and welcomed to Europe opened up the floodgates. According to the British newspaper, Frontex had evidence that some NGOs were in contact with smugglers and led them towards zones where migrants had the best chance of being rescued. In other words, they claim some NGOs were accomplices to human traffickers and were therefore guilty of the crime of assisting illegal immigration. The report led Italian authorities to investigate. In May 2017, the Italian Senate’s parliamentary inquiry concluded that NGOs constituted a “pull factor” and that they should cooperate more with maritime police operations (see the inquiry, p. 9). The Catania chief prosecutor nevertheless stated that there was no proof of wrongdoing. In July 2017, the Italian Interior Ministry promoted the adoption of a code of conduct for NGOs carrying out migrants’ rescue operations in the Mediterranean (see the code of conduct), which has divided organizations. Indeed, while MOAS, Save the Children, Sea Eye and Proactiva Open Arms signed it, SOS Méditerranée, Doctors Without Borders (MSF), Sea-Watch and Jugend Rettet remained opposed to the code.
One of the most recent cases concerning migration at sea regards the NGO Proactiva Open Arms, which has been accused of smuggling migrants during rescue operations at sea, and whose rescue ship was impounded by the Italian authorities. The present contribution examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel (see the pre-trial order), with specific regard to the role played by the protection of human rights of migrants in the reasoning of the judge.
The facts
Open Arms is operated by the Spanish NGO Proactiva Open Arms and has rescued more than 5,000 individuals from the Mediterranean over the past three years. On 15 March 2018, the Maritime Rescue Coordination Centre in Rome informed the Open Arms vessel of the presence of a dinghy sailing international waters, off the coast of Libya. Open Arms was heading towards it, in order to verify its conditions, when the Libyan coast guard took over the coordination of the search and rescue operations, and ordered the NGO vessel to ‘stay out of sight’ (see the pre-trial order, p. 3).
The Open Arms did not comply with the instructions received from the Libyan authorities. Instead, the NGO vessel rescued the people from the dinghy, and then sailed towards a second dinghy that had been spotted in the meantime; while embarking people from this second boat, a Libyan coastguard unit arrived. A couple of hours of high tension followed, during which the Open Arms crew were verbally and physically threatened by the officials of the Libyan coast guard. Still, the NGO managed to complete the rescue of the people from this second dinghy (rescuing 218 people in total) and headed north, in search of a ‘place of safety’ where it could disembark the migrants (see the pre-trial order, p. 4).
Since a woman and her three-month old infant were in need of an emergency health treatment, the vessel was forced to stop in Malta and to disembark the two there. But, instead of asking Malta for authorization to disembark all of the rescued people, Open Arms continued its journey to Italy. According to the captain’s statements, they did so because Malta always denies migrants permission to land. After two days of navigation, Open Arms reached the Italian coasts and obtained authorization to disembark the rescued people in Pozzallo (Sicily) (see the pre-trial order, p. 9-10). Shortly after the safe landing, the NGO was informed that the Catania prosecutor had charged two members of Open Arms crew with belonging to a criminal organization and smuggling migrants. While the first accusation was quickly dismissed, the charge of smuggling stood, and the Open Arms boat was consequently impounded by the police
The reasoning: what role for the protection of migrants’ rights?
The order concerning the pre-trial seizure of the Open Arms vessel focused on whether the conduct of the Open Arms crew, which refused to hand over the migrants to the Libyan authorities and brought them to Italy instead, should be considered as ‘migrant smuggling’. For its part, the NGO argued that they acted under a ‘state of necessity’. On the basis of article 54 of the Italian criminal code, an unlawful conduct is justified by the necessity to protect the perpetrator or another person from an imminent and serious danger.
The judge has come to the conclusion that Libya does not guarantee the necessary minimum level of human rights protection, as grave violations regularly occur, such as detention in harsh conditions, deprivation of food and healthcare. In addition, there is no evidence of the existence of safe places on Libyan territory able to accommodate those migrants rescued in the Libyan SAR area. Lacking these proofs, the state of necessity should be considered as existing. Indeed, in the judge’s words, human rights protection in Libya is too unsatisfactory to determine the existence of a state of necessity (see the pre-trial order, p. 14-15).
The decision of the judge in Sicily is particularly laudable because, for the first time with regard to migration at sea, it recognizes to all the right not to be disembarked to a place where they can be exposed to the treatments prohibited by Article 3 of the European Convention for Human Rights Protection and for the Fundamental Freedoms. This is important to counteract the common belief that only refugees have the right not to be deported to Libya, while other migrants can be taken back. Indeed, the pre-trial order in the Open Arms case provided migrants at sea with a broader protection, by relying on human rights that apply to everybody, regardless of their status (see Passalacqua).
Francesca Mussi
