Guest post by Paolo Biondi, School of Advanced Study, University of London. Paolo is an independent consultant on migration and refugee law policy and a PhD Candidate at the School of Advanced Study, University of London. His research focusses on responsibility sharing in the EU as an interest-based obligation. Paolo is an affiliate to the Refugee Law Initiative and an associate member of the International Association of Refugee Judges. Paolo is on Twitter @PaoloBiondi82.

In the last few months, we have all become familiar with images of migrants climbing onto colourful NGO boats that are performing search and rescue (SAR) missions at sea. In some of those pictures and videos, large grey military vessels of the Italian Navy loom in the distance without a clear purpose. In this post, I explore the role of those boats, drawing on evidence from a recent interception at sea.

Evidence is mounting about the Italian Navy’s involvement in facilitating the return of migrants to Libya. There have been alleged cooperation agreements between Italy and Libya to stem the flows to Europe, at the same time, as there have been accusations of pushbacks to Libya. In these cases, Italy stands accused of actively supporting the Libyan Coast Guard in committing unlawful acts, returning intercepted migrants to places where their lives or freedom would be threatened, or where they would face the risk of torture.

On 27 September 2017, a journalist, Isobel Yeung, shot a video directly from a Libyan Coast Guard vessel. She boarded the Kifah vessel the night before. Several hours later, the captain of the Kifah (who had been previously involved in an incident with the NGO Sea Watch) received a call from an Italian warship. The captain was informed of a distress call and was provided with the position of the migrants’ boats.

When the Kifah reached the location, the Italian warship had already been there for a few hours, keeping the migrant boats in custody. The military vessel had neither approached the boats or started the rescue, as the international rules require. It simply prevented them from continuing their journey and called the Libyans, while encouraging the boats to ‘keep away’ with a banner. As Isobel astutely put it, ‘if the Italian boat had brought the migrants on board, then it would have to take them to Italy, and that’s exactly what they wanted to avoid’.

Isobel filmed the actions of the Libyan coastguard. In her film, we see screaming children and a traumatised woman. A man crawls confused onto the Libyan boat’s deck, thinking he is on an Italian vessel. His happiness is short lived. 

Isobel shows the Libyan captain collecting the life vests of the migrants on board, intending to use them for the second rescue. Once everyone is taken on board, Isobel notes that the dinghy ‘was punctured and the engine conked out, so they wouldn’t have lasted very long, if it were not for these coast guards rescuing them’. A rescue, which, nevertheless, would result in the return to Libya.

The Italians did not provide assistance to the boats in distress, but instead called another country’s navy to intervene. There is evidence that this has become common practice, alongside placing NGO vessels on ‘standby’ to favour the interception at the hands of the Libyans. Both approaches violate the International Convention on Maritime Search and Rescue (SAR), which requires the first rescue unit arriving at the scene of action to assume automatically the duties and responsibilities of the rescue (section 5.7.3).

The video ends with the migrants being returned to Libya. However, this is also, where another story begins. Isobel reported that the Italians had given the life vests to the migrants. The Navy’s speedboats approached the migrants and threw the life vests to them from a short distance. It is not clear if they also anchored the boats with a rope and towed it over to the Libyans.

The Italians should be held responsible for revealing the boats’ position, for keeping them there and for handing over control (see recent UNHCR Legal Consideration, para. 3) of the situation to the Libyans, instead of rescuing the migrants at sea.  In this case, the Italian Navy was exercising effective control on the high seas (UNHCR, paras. 7, 21). The Italian flag vessel used its physical presence to threaten and prevent the boats from continuing their journey. Once the Libyan navy reached the location, all those acts contributed substantially to their interception and return to the port of origin, rather than a safe port in Italy. In such cases, jurisdiction is based on the effective control over the persons concerned, even without a physical contact. All those acts represented the exercise of direct power and effective control over the individuals.

In this regard, a precedent (Xhavara) at the European Court of Human Rights (ECtHR) is relevant. In 2011 the ECtHR found that Italy, as the flag state of a patrol boat that collided with an Albanian migrant boat, was responsible for their death. The accident was a consequence of the Italy-Albania agreement preventing the entry of Albanian citizens in Italy through a ‘naval blockade’. The Albanians were not on board of the Italian vessel and the Italian officials were not on the Albanian boat. Nevertheless, the situation was not prohibitive to establishing the Italian jurisdiction under the ECHR. Similarly, in 2012 Italy was condemned by the ECtHR for escorting and pushing a boat full of Somali and Eritrean migrants back to Libya (Hirsi).

On 27 September 2017, the Italian Navy did not board the migrants’ vessel. Nevertheless, it is clear that the Italians attempted to use a jurisdiction’s fiction to circumvent the non-refoulement ban and the obligation to prevent collective expulsions of aliens. In so doing, Italy, with full knowledge of the consequences and without taking the necessary measures to protect the lives of persons within their jurisdiction, handed them over to the Libyans. Being fully aware that they would be taken back to Libya, where some may be sold as slaves, while others face torture and possibly rape.

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How to cite this blog post (Harvard style)

Biondi, P. (2017) Italy Strikes Back Again: A Push-back's Firsthand Account. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/12/new-dutch (Accessed [date]).