The Sea-watch 3 Crisis: To What Extent Did the Italian Government Undermine International Law?

The former captain of the migrant rescue vessel ‘Sea-Watch 3’, Carola Rackete, has recently been cleared of all charges regarding the 2019 dispute over port access in Italy. Throughout the years, Rackete has been often criticized by the former Italian Minister of the Interior Matteo Salvini and other European right-wing leaders, who used her as a scapegoat to criminalize migration. It is thus important to look back at this case in order to further analyze the event and shed light on the controversies that have arisen from it.

The Sea-Watch incident

On June 12, 2019, the Sea-Watch 3 rescued dozens of migrants from a rubber dinghy off the coast of Libya in the Mediterranean Sea. The non-governmental organization Sea-Watch later received a communication from the Libyan Coast Guard indicating Tripoli as the closest port where to disembark. However, the NGO did not consider Libya a secure place and the boat started heading north to the safest and closest port to the rescue location, which was Lampedusa, a little island on the south of Sicily. When arrived in the vicinity, the ship remained on the edge of territorial waters to comply with an entry ban according to the new provisions of the so-called ‘Decreto Sicurezza Bis’. This legislative decree (entered into force on June 15 of the same year) allowed the Minister of the Interior to prohibit the entry of NGO ships into Italian territorial waters for reasons of order and security. The penalties introduced include seizure of boats and fines of thousands of euros.

On June 26, after fourteen days at sea, Sea-Watch announced the decision to enter Italian territorial waters, despite the prohibition imposed by the government. Once arrived about three miles from the coast of Lampedusa, the ship was joined by a coast guard patrol boat. Meanwhile, Salvini defined the action of the NGO as a provocation and a hostile act, while warning the migrants would not disembark and invoking the seizure of the ship, as well as the arrest of the entire crew.

On June 28, the captain of the ship Carola Rackete was placed under investigation by the Agrigento Public Prosecutor’s Office for facilitating illegal immigration and not obeying the order of a national warship, as defined in Article 1099 of the Italian Code of Navigation.

On the night of June 29, after more than two weeks at sea without a safe place to land, the Sea-Watch 3 decided to enter the port of Lampedusa. During the maneuver to approach the harbor, a patrol boat from the GdF (Guardia di Finanza) attempted to block the vessel of the NGO putting itself between the rescue ship and the pier. Eventually, the GdF boat moved away to avoid getting trapped against the wharf and the Sea-Watch 3 finally docked.

Aftermath of the docking

Carola Rackete was arrested and her ship seized for violation of Article 1100 of the Italian Code of Navigation, since she opposed resistance against a national warship. Salvini ordered the expulsion of the captain and accused her and the crew of being “criminals” and committing an “act of war”, as they allegedly risked sinking the GdF boat during the docking. 

However, on July 2, the Public Prosecutor’s Office of Agrigento announced that the arrest of Carola Rackete was not validated, hence no precautionary measures were taken against her. The crimes of resistance and violence against a warship were excluded because the naval units of the GdF are considered warships only when they operate outside territorial waters, as stated in judgement n. 35 of the Italian Constitutional Court: therefore, it could not be considered as such when operating in an Italian harbor. 

It can also be argued that the captain of the ship was forced to enter Italian territorial waters out of necessity. In fact, Article 54 of the Italian Criminal Code clearly states that people cannot be punished if they committed an action in order to save themselves or others from a current danger. Furthermore, Article 51 of the Criminal Code establishes that punishment is excluded in the event of the fulfilment of a duty imposed by a legal rule, in this case referring to the international conventions about the rescue of people in distress at sea: indeed, according to a 2002 annex to the International Convention for the Safety of Life at Sea, people being rescued must be promptly taken to a place of safety.  Although there is no clear definition of ‘place of safety’, Resolution MSC.167(78) of the Maritime Safety Committee describes it as a place that can guarantee basic human rights and needs, and where the life of the shipwrecked would not be at risk.

Place of Safety

Salvini insisted that the Sea-Watch 3 must have brought the migrants back to Libya, but one might argue that the country did not meet the criteria of a place of safety. To begin with, the head of the Libyan National Army, Khalifa Aftar, launched an attack to conquer Tripoli in April 2019 causing dozens of deaths, as well as bombing the airport. A few days after the Sea-Watch 3 docked in Italy, the detention center of Tajoura in Tripoli was also bombed, killing around 40 migrants. On the top of that, the Office of the United Nations High Commissioner for Human Rights (OHCHR) reported that migrants and refugees in Libya were victims of unimaginable horrors, such as violations and abuses by state officials, armed groups and smugglers. These events could hardly make Libya a safe location, especially if taken into account that the country was going through a new civil war at the time.

Further evidence of the instability in Libya is given by the United Nations High Commissioner for Refugees (UNHCR) that asserted Libya was not complying with the “criteria for being designated as a place of safety for the purpose of disembarkation following rescue at sea”. Not surprisingly, the International Organization for Migration (IOM) also stated that Libya was not considered a safe place by the international community and that alternative solutions for the Sea Watch 3 must have been found. Furthermore, Libya has neither signed the 1951 Convention Relating to the Status of Refugees nor the 1967 Protocol Relating to the Status of Refugees. Yet, a country at war finds itself having a coast guard funded and supported by the European Union, with the aim of capturing those who escape tortures and bombs and bringing them back to Libya. A United Nations Security Council meeting that took place a few weeks after the incident in Lampedusa pointed out that, on account of recent conflicts, “the 1949 Geneva Conventions are more crucial than ever”, and that the World Health Organization “denounced violations of international humanitarian law in Libya”. These factors stress the unreliability of the country, and it could be thus discussed that Rackete allegedly made the right decision to refuse to dock in Tripoli, as she was coherent with the principles of international law. 

Moreover, the Sea-Watch 3 could not have headed to Malta because the country was poorly equipped for landings and not able to fully ensure international protection, in addition to being farther than Lampedusa. Tunisia could not have been considered either, because it had not yet adopted a law that regulates asylum applications at the time of this event. According to the UNHCR, the North African country may be considered a safe place, but at the same time it is accused of serious human rights violations on migrants in detention centers: in the same month of the Sea Watch episode, 75 migrants were disembarked in Tunisia, brought to a detention center, and some of them were eventually expelled and sent back to their country.

Libyan coast guard and human smuggling

The responsibility of this crisis cannot be solely attributed to Salvini, but emphasis must be put on him as he was the Minister of the Interior at the time and chose a rather aggressive  and unjustified approach. He defined the Sea Watch 3 a pirate ship and compared the captain and the crew to smugglers. As a matter of fact, politicians should primarily focus on prosecuting human traffickers, instead of promoting closed borders and blaming those organizations preventing migrants from dying. Perhaps with a better solution to fight smuggling, we would have fewer shipwrecks and deaths in the Mediterranean Sea, but the Italian government has not addressed this issue successfully yet. In fact, Italy is still supporting the Libyan Coast Guard to intercept migrant boats and return them, in accordance with a memorandum signed in 2017 by the former Minister of the Interior Marco Minniti. The pact succeeded in decreasing the number of arrivals by sea, but just by letting the migrants stay in Libya. The agreement also involved dealing with an infamous smuggler who is working for the coast guard in Tripoli. In an interview with an Italian magazine, the man in question (known as ‘Bija’) claims that he was invited by the IOM in Italy, where he met prominent members of the Ministry of the Interior.

The Italian government chose to maintain this connection with the Libyan Coast guard, spreading the idea that it was a suitable measure to stop migration to Italy. In the case of the Sea-Watch 3, it is evident how Salvini planned on refusing the boat to land in Italy, without even letting other institutions handle the situation. He was indeed the minister in charge at the time, but on that matter also other members of the government should have been involved. In fact, on June 28, the Italian Minister of Foreign Affairs, Enzo Moavero Milanesi, declared that the definition of place of safety came from international conventions and that its criteria were not met in Libya. This statement was ignored and did not stop Salvini from deciding the fate of a rescue ship, almost acting as the Prime Minister, Minister of Foreign Affairs and Minister of the Interior at the same time, and in this way demonstrating his dominant position in the government. 

It can be thus concluded that Salvini simplified the issue blocking the ship and closing borders to demonstrate his authority, as populist leaders usually behave in these. He used those migrants for mere propaganda, while at the same time letting more than 300 migrants land in Southern Italy with small boats independently, some of which even rescued by the GdF. The former Minister also refused many proposals to accommodate the migrants whilst they were still on the ship: fifty German local authorities offered their availability, the German government insisted for cooperation with other EU states to find a solution, and the Diocese of Turin made itself available to welcome the migrants without burdens for the state. Therefore, he preferred impeding the ship to dock spreading the message that the real problem is an NGO boat rescuing people at sea, while hiding the fact that most of the migrants come with independent boats coordinated by smugglers.

The legislative decree ‘Decreto Sicurezza Bis’ that entered into force during the Sea-Watch crisis became law a month later, despite the concerns raised by the UNHCR. The Italian government thus decided to confirm this controversial policy, rather than ceasing to entrust smugglers to deal with the migrant crisis in the Mediterranean Sea. These individuals were even accused of violations of human rights and “directly involved in the sinking of migrant boats using firearms”. Italy should have welcomed proposals from other EU countries, which could have also helped build a stronger collective system of participation that would benefit all member states. The Council of Europe Commissioner for Human Rights, Dunja Mijatovic, stated that “whilst states have the right to control their borders and ensure security, they also have the duty to effectively protect the rights enshrined in maritime, human rights and refugee laws”. As a result, Italy should have assisted the people in distress at sea and promptly disembark them in the closest place of safety (in this case Lampedusa), as it is a human right and a humanitarian obligation, and these factors cannot be overshadowed by political views.

[Photo by Chris Grodotzki / Sea-Watch.org, CC BY-SA 4.0, via Wikimedia Commons]

The views and opinions expressed in this article are those of the author.

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