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Italy: UN special rapporteurs call for withdrawal of Salvini decree criminalising search and rescue activities

22 May 2019

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UN special rapporteurs call for withdrawal of Salvini decree criminalising search and rescue activities
22.5.19
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Six UN special rapporteurs and independent experts have written to the Italian government demanding the withdrawal of an interior ministry directive that prioritises 'security concerns' over the saving of lives at sea, as examined in a Statewatch analysis published last month.

See: JOINT COMMUNICATION FROM SPECIAL PROCEDURES (pdf)

And: Italy's redefinition of sea rescue as a crime draws on EU policy for inspiration (pdf) by Yasha Maccanico

The letter includes, amongst other things, the following:

On the criminalisation of civil society organisations carrying out search and rescue operations

"We are deeply concerned about the approach taken by the Minister of lnterior against the Mare Jonio boat through these Directives, which are not based on and have not been confirmed by any decision by the competent judicial authority. We believe that this represents yet another political attempt to criminalize search and rescue operations carried out by civil society organisations in the Mediterranean. It also further intensifies the climate of hostility and xenophobia against migrants, as previously denounced in two letters sent to your Excellency's Government on 19 October 2018 (ITA 4/2018) and on 12 November 2018 (ITA 2/2018) respectively, for which we are still awaiting a reply."

"We also wish to express grave concerns over the draft 'Security Decree-bis', allegedly introducing sanctions to those that 'while carrying out search and rescue operations in international waters do not respect the obligations enshrined in international conventions'. As per information received, the amount of the sanctions could vary from 3.500 to 5.500 euro for each migrant transported on the vessel and, in case of persistently repeated infringements, if the vessel is under the Italian flag, it could lead to the suspension or the withdrawal of the licence from 1 to 12 months."

On the right to life and lack of reference to international human rights standards in the Directive

"The Directive also attempts to justify restriction of search and rescue operations by private vessels, by invoking the Law of the Sea, such as the International Convention on Maritime Search and Rescue (SAR), the International Convention for the Safety of Life at Sea (SOLAS) and the Convention and the United Nations Convention of Montego Bay of 1982.

While we appreciate the reference made to international standards in the Directive, we wish to draw attention to your Excellency's Government to the United Nations Convention on the Law of the Sea of 1982. Article 98 of the Convention provides that every State "has a duty to (a) render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him". Similar obligations are further specified in the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR).

We are also concerned that the Directive fails to duly take into account States' international human rights obligations arising in the course of search and rescue operations, of which the non-derogable obligation to respect and protect the right to life..."

"In light of the above-mentioned international human rights standards, search and rescue operations aiming at saving lives at sea cannot represent a violation of national legislation on border control or irregular migration, as the right to life should prevail over national and European legislation, bilateral agreements and memoranda of understanding and any other political or administrative decision aimed at ' fighting irregular migration'."

On stigmatising migrants in distress at sea and denying their right to seek asylum and to be identified as victims of trafficking in persons

"The Directive further justifies the closure of Italian ports by invoking 'the peace, order and security of the coastal State' whose assessment should be devoted to the discretion of national authorities in the light of the fight against smugglers and traffickers as well as by recalling the ' irregular status' of migrants at sea and that ' concrete risks exist that potential terrorists or otherwise dangerous individuals threatening national security and public order could hide among migrants' , without however providing any factual information or any qualitative or quantitative data to substantiate such claims. In this context, highlighting such risks results in a blank criminalisation of all migrants in vulnerable situations."

"The Directive claims that, through enhanced externalisation of border control, 'a more efficient fight against trafficking in persons will be conducted, to avoid that migrants are exploited by trafficking networks and reduce incentives to irregular migration'. However, such an approach makes instrumental use of the fight against trafficking in persons, since restrictive migration policies contribute to exacerbate migrants' vulnerabilities and, thus, to favour trafficking in persons, rather than prevent it and protect its potential victims."

"In addition, a search and rescue operation is not finished before the rescued persons have reached a place of safety. It has been widely documented in several UN and NGO reports that migrants in Libya are subjected to various human rights abuses, including trafficking in persons, prolonged arbitrary detention in inhuman conditions, torture and ill-treatment, unlawful killings, rape and other forms of sexual violence, forced labour, extortion and exploitation. Therefore, Libya cannot be considered a place of safety for the purpose of disembarkation of migrants."

On the lack of consideration for the principle of non-refoulement

"We wish to express serious concerns on the Directive's expressed delegation of responsibilities during search and rescue operations to the Libyan coastguard, declaring Libyan ports as 'able to provide migrants with adequate logistical and medical assistance'.

In this regard, we concur with the recent joint report issued by OHCHR and UNSMIL in December 2018, which called for the EU and its Member States, including Italy, to reconsider their policies on migration management in the Central Mediterranean. The report clearly documents a widespread pattern of human rights violations against migrants, as well as humanitarian organisations engaged in search and rescue activities included by the Libyan coastguard, with the financial and material support of the Italian Government and the European Union."

"...Libya cannot be considered a place of safety for the purpose of disembarkation, following rescue or interception at sea."

"...we urge your Excellency's Government to withdraw the 'Directive for the unified coordination of surveillance activities of maritime borders and fight against illegal migration according to article 11 of Legislative Decree n. 286/1998', alias Ministerial Circular n. 14100/ 141(8), the Directive - also n. 14100/141(8) - issued on 15 April 2019, specifically targeting Mare Jonio and to halt the procedure eventually leading to the approval of ' Security Decree-bis. We also encourage the competent judicial authorities to take into account this joint communication. We also call on Italy and other EU Member States to swiftly and collectively implement a coherent, human rights-based response to maritime migration from Libya. In particular, there is a need to ensure adequate search and rescue capacity in the Mediterranean and to prioritize the primary obligation to save lives at sea, while upholding the principle of non-refoulement under international human rights, refugee, and humanitarian law."

See: JOINT COMMUNICATION FROM SPECIAL PROCEDURES (pdf)

And: Italy's redefinition of sea rescue as a crime draws on EU policy for inspiration (pdf) by Yasha Maccanico

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