The story so far: Libya 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 landmark ruling in February.
Rights agencies have drawn attention to human rights abuses in Libyan territory, particularly in coastal prisons run by coastguards and armed militias, which become grounds for vast human trafficking networks. Unprotected refugees and asylum seekers are reportedly facing violence, torture, and inhumane conditions. “Now there is also a judicial precedent that confirms what we have been saying for years: Libya is not a safe country,” rescue group Mediterranea Saving Humans wrote on X.
The court verdict against ‘pushing back’ migrants also diverges from the stance of Italy and several other European countries, where right-wing parties are capitalising on anti-immigration pledges. Groups like UpRights and StraLi welcomed the “landmark” ruling, urging “Italy to comply with international human rights standards and end its complicity with violations of migrants’ rights.”
File photo: Rescuers searching for survivors in the aftermath of a deadly migrant shipwreck in Steccato di Cutro near Crotone Italy on February 28, 2023.
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Reuters
The court case
The case in question is a 2018 incident. On July 30, while supplying to oil platforms 105 kilometres off the coast of Libya, 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 non-refoulement 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 Italian Court of Cassation in the present verdict reiterated this stance. It upheld the captain’s conviction and sentenced him to one year’s imprisonment for the crime of “abandonment in a state of danger of minors or incapacitated people and arbitrary disembarkation and abandonment of people,” as the ruling, dated February 1, notes.
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 (SOLAS). Moreover, these actions translated into a “collective refoulement to a port deemed unsafe like Libya.” 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.”
In 2009, owing to similar push-back policies, the European Court of Human Rights condemned Italy for intercepting asylum seekers at sea and returning them to Libya, saying that the practice violated the principle of non-refoulement, in addition to multiple articles of the European Convention on Human Rights.
What are the legal obligation in handling rescues at sea?
The expanse of the Mediterranean Sea between Libya and Italy is among the most dangerous albeit oft-used passage for migrants from sub-Saharan Africa fleeing ethnic conflict, war and famine. The crossing has become infamous for the way smugglers overload unseaworthy vessels with hundreds of people, , providing limited fuel and water,, and assuring them they will be rescued within a few hours of being at sea, as multiple reports, including this one by Time magazine, have noted.
More than 2,500 people died or went missing while trying to make the trip between January and September 2023, an almost 48% increase from the previous year, according to UN High Commissioner for Refugees (UNHCR) data. The number of refugee arrivals doubled from 70,000 in 2022 to at least 1,30,000 last year, according to the International Office for Migration. Overall, 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 previously refused to open their ports, 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 fact-finding mission last year said there are “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. The IOM estimates at least 3,5000 refugees are detained in official centres across western and eastern Libya; even more may be detained in unofficial camps, of which it is impossible to ascertain the exact number.
War-torn Libya has been under militia rule since 2011 after the fall of Muammar Gaddafi. 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,” according to a report. An Al Jazeera report documented instances where people were “flogged”, beaten, raped, and tortured in these detention centres “just to get money” from desperate family members.
The “vicious cycle” makes them “attempt the sea crossing, be intercepted, kept in arbitrary detention, systematically subjected to torture, sexual and gender-based violence and exploitation until they pay the guards to be released to attempt the sea crossing again, and again, and again,” Michela Pugliese, Migration Researcher at Euro-Med Monitor, noted in 2021. “EU is knowingly and directly involved in this climate of impunity and this cycle of extreme abuse,” she said.
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.
Last year, the EU also sent more search and rescue vessels to Libya to “stop the illegal migration to Europe” from North Africa, according to the European Commissioner’s Office. These indirect aids allow the EU and Italy to focus on “enabling the Libyan authorities to do the dirty job” of returning people to Libya, Matteo de Bellis, Amnesty International’s migration researcher, told The New Humanitarian in 2020. “By doing so, they would argue that they have not breached international European law because they have never assumed control… over the people who have then been subjected to human rights violations [in Libya].”
“The Italian coastguard and government have long known that returning migrants to Libya would be unlawful… Instead, they looked for ways around those restrictions…”Matteo de Bellis, Amnesty International’s migration researcher, to Al Jazeera
In December last year, Italy’s Interior Minister Matteo Piantedosi told a media outlet that collaborations with Libyan and Tunisian authorities have “made it possible to stop many tens of thousands of other arrivals” of refugees. “Even more would have arrived if we had not adopted the measures launched in recent months, which have already yielded concrete results,” he said.
Notably, in 2022, Mr. Piantedosi received flak from rights groups when he called migrants who are denied permission to disembark from humanitarian ships “residual cargo.”
Why is the ruling important?
U.N. agencies have previously 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.
The verdict also holds legal relevance amid ongoing legal disputes between human rights organisations and the European government over ‘push-and pull-back’ operations. One such case was filed in 2017 in the European Court of Human Rights by the Global Legal Action Network, after reports emerged of survivors being sold, beaten, raped, and electrocuted. The NGO alleged that Italy is complicit in these crimes by supporting Libyan authorities.
Maritime experts and rights groups note Italy’s far-right government led by Giorgia Meloni may double down on anti-immigration policies and obstruct the work of search and rescue NGOs. This would further escalate the likelihood of death, disappearances and detention for migrants.
In response to the verdict, Interior Minister Matteo Piantedosi said, “Italy has never coordinated and handed over to Libya migrants rescued in operations coordinated or directly carried out by Italy.” He added that the court’s sentences “should never be interpreted in a political or ideological manner.”
