17 April 2018
Sequestration of the Open Arms rescue boat and the case against the organisation: background, documentation and sources
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The analysis is a translation of a documentation originally published in Italian by the Osservatorio Solidarietà della Carta di Milano, which was established in September 2017 in order to defend the rights of civil society organisations and activitists who have been criminalised, or risk being criminalised, for their work in defending the rights of migrants and refugees.
Background on the creation of the Observatory:Italy: Solidarity is not a crime: the Observatory of the Milan Charter is born, 16 October 2017
Background on the demonstration at which the Milan Charter was unveiled: Salvatore Palidda, Italy: Milan like Barcelona. Together, without walls, against the racist criminalisation of migrants and the poor. For an international network of antiracist cities, 27 May 2017
The steering group of the Osservatorio Carta di Milano met in Milan on 23 March 2018 and approved the document 'Open Arms: le valutazioni dell'Osservatorio' (Open Arms: the Observatory's assessment). The document was drafted and published following the impounding of the boat belonging to Spanish NGO Proactiva Open Arms, and the placement under investigation of Ana Isabel Montes and the rescue boat's captain, Marc Reig Craus, as well as Gerard Canals, its general coordinator. The charges against them are membership of a criminal association for the purpose of facilitating illegal migration.
The situation is quickly evolving and there have been several developments over the last fortnight.
The Catania gip (judge for preliminary investigations) responsible for validating the proceedings and seizure of the rescue boat, issued his opinion on 27 March 2018, rejecting charges of criminal association and maintaining those of favouring illegal immigration and of doggedly insisting to take all the rescued people to Italy "at all costs", as well as validating the boat's seizure.
Simone Perelli, deputy Attorney General at the Court of Cassation, subsequently published a highly critical analysis of the charges levelled at the humanitarian operators, questioning whether saving migrants at risk of drowning could constitute a criminal offence. Significantly, the collapse of charges of membership of a criminal association meant that responsibility for the case would lay with the Ragusa court. Yet, the Catania prosecutors' office did not cease in its activities, summoning the accused to appear after the declarations they had originally given were deemed invalid due to the absence of any lawyers when charges were laid against them.
The Proactiva legal defence team issued a statement refusing to appear and comply with the summons, which they described as irrespecutful of the previous measure which dismissed charges which would have given the Catania prosecutors' office direction of the investigations. Incidentally, Catania is also where the attack on NGOs by prosecutor Carmelo Zuccaro began and it is the seat of Frontex's regional task force. In their refusal, the defence team noted that:
"This confirms the unpleasant sense, which was already emerging when reading the Catania prosecutors' office's press statements, that the exercise of jurisdiction is strongly conditioned by an ideological choice through which it insists at any cost to monopolise investigations into this case, inevitably undermining objectivity in the exercise of this function."
Paola Regina,"Open Arms", un commento autorevole sulla vicenda, Osservatorio Solidarietà, 4 March 2018
Comment on the judicial order by Simone Perelli, deputy Attorney General at the Court of Cassation (Italy's highest appeal court), Il sequestro della nave Open Arms: è reato soccorrere migranti in pericolo di vita?, Questione Giustizia, 31 March 2018
Demonstrations, meetings and talks
Demonstrative actions in support of Proactiva Open Arms were held in several cities in both Italy (from Palermo to Rome and Milan) and throughout Spain, where the NGO received official backing from the mayor of Barcelona, Ada Colau. The slogan was that "saving lives is not a crime".
The Osservatorio Solidarietà organised a public meeting on 25 March 2018 entitled "Solidarity across Borders", which saw the participation of activists from grassroots organisations from around Europe, including Riccardo Gatti of Proactiva Open Arms, Gennaro Giudetti who was a crew member on board of the Sea Watch rescue boat and witnessed abuses during a rescue operation in which the Libyan coastguard participated, and representatives of local groups Roya Citoyenne (France), Tous Migrants Briançon (France), Lesvos Solidarity (Greece), Antenne Migranti (Trento and Bolzano), Progetto 20k/Sportello Eufemia (Ventimiglia) and Como senza Frontiere.
An article by Ecoinformazioni (in Italian) summarises the event (part of the "fa la cosa giusta" (do the right thing) festival), and features recordings of several of the speakers' interventions (including Gatti and Giudetti's), with a poignant title "Attivarsi ovunque contro le frontiere assassine" (Act anywhere against murderous borders).
Introduction on the participation of Lesvos Solidarity, and presentation of its Safe Passage Bags project: Silvia Marastoni, La Lesvos solidale a "Fa' la cosa giusta", 22 March 2018
The Libyan coastguard, which is coordinated, funded and trained by Italy - which has also provided vessels to the Libyan authorities - continues to intercept migrants and return them to Libya, as the ICC gets involved.
Yet, following the impounding of the Open Arms rescue boat, there were other incidents in which the same issue arose, including cases in which the operators on humanitarian boats were unable to prevent the Libyan coastguard from "rescuing" people and returning them to Libya.
This emerges from an account by crew members on the Aquarius rescue boat (operated jointly by SOS Mediterranee and MSF) on 1 April, in which they explain that they managed to evacuate 39 people who were either vulnerable or in a state of medical emergency, but had to leave the Libyan coastguard to deal with dozens of others: Mediterranean: MSF Evacuates 39 Vulnerable People From Packed Rubber Boat, 1 April 2018
Barbara Spinelli MEP asks Fabrice Leggeri, head of Frontex, to confirm that the Libyan SAR zone does not exist
A key part of the accusations levelled at NGOs concerns Libya's exclusive competence for rescues in its SAR (search and rescue) zone, which also features in the Catania prosecutors' allegations against Proactiva Open Arms.
On 26 March 2018 in Brussels, at a meeting of the European Parliament's civil liberties committee (LIBE), at which Frontex's Themis joint mission was being presented by the agency's director Fabrice Leggeri, Barbara Spinelli MEP noted that his presentation made reference to such a zone. She highlighted that the new operation envisages a retreat of the EU's sea rescue area, from 35 sea miles (for the preceding operation Triton, although its reach was expanded due to extraordinary circumstances) to 24 sea miles (which dinghies are unable to reach as they sink earlier) and that the attempt to establish a Libyan SAR zone was to undermine NGOs involved in sea rescues.
Her question ended in no uncertain terms, asking Leggeri "if he confirms that the Libyan SAR zone does not exist, as he took its existence for granted during his presentation." Despite a degree of equivocation, Leggeri admitted that he does not consider the Libyan SAR zone to be "established and definitive".
Legal issues and possible causes of concern for Italy
As the judicial order against Proactiva clearly documents, the Italian control centre for sea rescues coordinates the Libyan coastguard. Lawyer Fulvio Vassallo Paleologo suggests that this may have given rise to legal problems for the Italian state at two different levels.
Firstly, for contravening the Hirsi Jamaa et al vs. Italy sentence by the ECtHR in 2012 (pdf) which condemned Italy for the refoulements enacted in 2009 to Libya by subcontracting them to an agency which it has contributed to creating and coordinates, under the auspices of the Libyan authorities.
Secondly, the International Criminal Court (ICC) has an investigation which opened in 2011 into the Libyan situation and possible crimes against humanity, which includes crimes against migrants in transit. Italy may thus be found guilty of complicity in crimes against humanity.
Mann, Moreno-Lax and Shatz have called for European agents to be investigated in this context, after noting that ICC prosecutor Fatou Bensouda told the UN Security Council on 8 May 2017 that the investigation also concerns "serious and widespread crimes against migrants attempting to transit through Libya."
Agnes Callamard, the UN Rapporteur on Extrajudicial, Summary and Arbitrary Executions, submitted a report on the 'Unlawful Death of Refugees and Migrants', observed that NGOs rescuing migrants attempting to escape Libya "are under increasing pressure from the European Union, which is undermining, if not preventing, their efforts." She viewed the underlying policies as "based on deterrence, militarization and extraterritoriality which implicitly or explicitly tolerate the risk of migrant deaths as part of an effective control of entry". Further, Nils Melzer, the UN rapporteur on torture and other inhuman and degrading treatment and punishment, argued on 1 March 2018 in Geneva, that:
"States and the ICC-Prosecutor should examine whether investigations for crimes against humanity or war crimes are warranted in view of the scale, gravity and increasingly systematic nature of torture, ill-treatment and other serious human rights violations suffered by millions of migrants in all regions of the world, as a consequence of corruption and crime, but also as a direct or indirect consequence of deliberate State policies and practices of deterrence, criminalization, arrival prevention, and refoulement".
It is also worth recalling that a session of the People's Permanent Tribunal (PPT) held in Palermo from 18 to 20 December 2017 raised the possibility of Italy and the EU being called to account for the "system crimes" they have promoted against migrants, at the same time as they called for recognition of migrants as a "people" and holders of rights.
The latest news from the ICC in The Hague suggests that the court has acquired documentation concerning interventions by the Libyan coastguards. Il Fatto Quotidiano reported on 5 April 2018 that the report submitted on 12 February by UN Secretary-General Antonio Guterres includes information about the Libyan interior ministry's department to fight illegal migration and the Libyan coastguard. Guterres wrote: "The UN's UNSMIL mission has continued to document the reckless and violent conduct of the Libyan Coast Guard during sea rescues and/or interceptions".
Flesh and bones
To graphically illustrate the situation, a few days before the seizure of the Open Arms rescue boat, it is worth focusing on a disembarkation in Pozzallo on 12 March 2018 of 92 people who were seriously malnourished. One of them, an Eritrean nick-named Segen (real name Tesfalidet Tesfom) died in Modica hospital shortly after arriving as a result of malnourishment and tuberculosis. He weighed 30 kilos and two poems were found in his wallet which spoke of the conditions he and his fellow detainees were experiencing in Libya. A friend of his who spoke to the online newspaper vita.it spoke of the Libyan camps:
"He told me that they were all crammed into a room in the Bani-Walid detention camp, they urinated and did their bodily functions in the same room, women endured sexual violence, men were beaten, nobody could wash, and they were given food once or twice per day".
Doctor Angelo Gullotta has observed worsening conditions among those who land: "Lately, the migrants who arrive are increasingly malnourished, sick, over 90% have scabies or tuberculosis." Carlo Parini of the Syracuse prosecutors' office to fight illegal immigration has noted the same trend, adding that "this year a boy arrived who weighed 18 kilos."
Eritrean priest Mussie Zerai [who is currently accused of facilitating illegal migration for his work to prevent deaths in the Mediterranean] expressed his wish that "Segen's photograph be stuck outside of all the EU's interior ministries". He referred to the images he saw of the man as reminiscent of "documentaries showing people who were mere skin and bones leaving the Nazi lagers."
It is highly significant in this context that the judicial papers accusing Proactiva Open Arms have revealed that Italy coordinates the Libyan coastguard.
On 16 April 2018, the Ragusa gip (judge for preliminary investigations) finally ordered the release of Proactiva's rescue boat.
Daniele Ruzza, Caso Proactiva Open Arms, il giurista Vassallo: smentito il teorema del procuratore Zuccaro, Left, 17 April 2018
Regarding the latest developments revoking the sequestration of the boat: Daniele Biella, Open Arms libera di tornare a salvare vite in mare (Open Arms, free to go to save lives at sea again), Vita, 16 April 2018
Order to release the Proactiva Open Arms rescue boat: Alessandra Ziniti, Dissequestrata la nave Proactiva Open Arms: "La Libia non è in grado di accogliere migranti", Repubblica, 16 April 2018
Appeal by Sicilian organisations calling for the release of the Open Arms and Iuventa rescue boats and calling demonstrations for 14 April 2018: Free Open Arms e Juventa che salvano Vite Umane, Facebook
Italy-Libya plan: Andrea Palladino, Migranti piano Italia-Libia per 'ridurre i salvataggi'. Ma "così Roma rischia di compiere dei respingimenti di fatto", Il Fatto Quotidiano, 14 April 2018; and Migranti, finiscono al tribunale dell'Aia le accuse Onu contro la Guardia costiera libica: "Condotte spericolate e violente", 5 April 2018
UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein, UN report details scale and horror of detention in Libya, 10 April 2018, Geneva
Europe's efforts to get rid of NGO boats (in French): Salvatore Palidda, L'Europe (a travers l'Italie) continue a vouloir éliminer les bateaux des ONG, Mediapart, 3 April 2018
On the political role which is being played by prosecutors, as well as the inconsistencies in the charges levelled against NGOs in the light of national and international legal frameworks, including the law of the sea, read (in Italian): Fulvio Vassallo Paleologo, Politica dei procuratori, soccorsi in mare e diritto internazionale, ADIF, 30 March 2018
On the need for EU agents to be made to account for the effects of the externalisation of their immigration policies in north Africa (Libya in particular) and violations enacted in that context: Itamar Mann, Violeta Moreno-Lax and Omer Shatz, Time to Investigate European Agents for Crimes against Migrants in Libya, EJIL, 29 March 2018
Press statement by Barbara Spinelli MEP, Themis, la nuova missione di Frontex, restringe il limite operativo delle responsabilità italiane, 27 March 2018
Nils Melzer, Migration policies can amount to ill-treatment and torture, UN rights expert warns, 1 March 2018, Geneva
Permanent People's Tribunal sentence, Palermo, 18-20 December 2017: EU and Italian authorities accused of 'system crimes' as court calls for the recognition of migrants as a 'people' and as holders of rights
Report by Agnes Callamard, Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions" submitted to the UN General Assembly, Unlawful death of refugees and migrants, A/72/335, 15 August 2017
Italian Coastguard annual report on sea rescue operations, stats, modus operandi and cooperation with NGOs: COMANDO GENERALE DEL CORPO DELLE CAPITANERIE DI PORTO GUARDIA COSTIERI, 2017 SAR OPERATIONS IN THE MEDITERRANEAN SEA (pdf)
On the Segen case: Alessandro Puglia, L'inferno libico nelle poesie di Segen, Vita, 10 April 2018
In depth article on the evolution of the situation in the Mediterranean regarding sea rescues, externalisation and the criminalisation of NGOs: Fulvio Vassallo Paleologo, Soccorsi in mare tra obblighi internazionali, propaganda xenofoba e ragione di stato (Sea rescues, between international obligations, xenophobic propaganda and raison d'Etat), ADIF, 12 April 2018
Marina Petrillo and Lorenzo Bagnoli, The Open Arms case continued: new documents and Malta, Open Migration, 12 April 2018, Marina Petrillo and Lorenzo Bagnoli
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