The Italian top court’s ruling on sea migrants from Libya
What was the case about? Why is Libya’s port not considered safe for refoulement of migrants?
LThe story so far: ibya is not a safe harbour, and it is “unlawful” to force migrants rescued from the sea to return to a territory where their fundamental rights are at risk, Italy’s highest court held in a ruling in February.
What was the case?
On July 30, 2018, the ship Asso 28, picked up 101 migrants, including five pregnant women and five minors, from a dinghy and returned them to the Libyan coastguard at the Tripoli port. A lower Italian court prosecuted the ship’s captain in 2021, finding him guilty of violating international humanitarian and refugee laws. The principle of nonrefoulement forbids the forced return of people to countries where their lives or rights are at risk. Per international law, Libya is currently not a port of safety. The Supreme Court of Cassation in the present verdict reiterated this stance. The court said that once picked up, the migrants were under the captain’s charge, and in ‘abandoning’ them, the captain violated directives of the International Maritime Organization and the International Convention for the Safety of Life at Sea. The migrants faced a “high risk” of being subjected to “inhuman and degrading treatment in the detention centres... in Libyan territory, with the impossibility of seeing their fundamental rights protected.”
What are legalites of sea rescues?
The expanse of the Mediterranean Sea between Libya and Italy is among the most dangerous albeit oftused passage for migrants from subSaharan Africa fleeing ethnic conflict, war and famine. Human Rights Watch estimates at least 25,313 people have died in the Mediterranean Sea since 2014.
Under Article 98 of the United Nations Convention on the Law of the Sea, every shipmaster is required “to render assistance to any person found at sea in danger of being lost.” International maritime law also requires coastal states to conduct search and rescue services, and if needed, coordinate with other nations during these operations. Still, countries like Italy and Malta have delayed ships’ arrivals or ignored requests for disembarking altogether. More than 24,000 people were intercepted and forced to go back to Libya in 2022, according to HRW.
What’s happening in Libya?
A UN Human Rights Council factfinding mission last year said there were “reasonable grounds to believe that crimes against humanity have been committed against Libyans and migrants throughout Libya,” with crimes, including torture and sexual slavery, committed in detention centres under the control of authorities including Libyan coastguards.
Wartorn Libya has been under militia rule since 2011. Humans rights groups notes that this has allowed the proliferation of human trafficking especially in detention centres, where commanders “could be running their own militias and profiteering from picking up migrants at sea, sending them to be detained, and then demanding more money from the detained migrants,” as per a report. The same Libyan authorities have received funding, vessels, aerial surveillance and training from Italy and the European Union. Italy and Libya signed a memorandum in 2017 — renewed for a second time in 2023 — under which the Italian Government gifted commercial vessels to Libya, trained crew in conducting these operations and invested $10.8 million in Libya’s maritime infrastructure.There was a “direct causal link between Italy’s cooperation activities with the Libyan coastguard and the exposure of people intercepted at sea to serious human rights violations,” said Dunja Mijatović, Council of Europe’s Commissioner for Human Rights.
Why is the ruling important?
UN agencies had acknowledged that Libya cannot be considered a “place of safety” for disembarking people rescued at sea due to proven human rights abuses at detention centres. Italy’s Court of Cassation added weight to this warning with its ruling. However, rights groups note that Italy’s farright government led by Giorgia Meloni may double down on antiimmigration policies and obstruct the work of search and rescue NGOs. This would escalate the likelihood of death and detention for migrants.