Crotone court’s judging illegitimate the SOS-Humanity’s seizure. The cooperation with Libyan authorities was not necessary, because what they do cannot be qualified as “rescue”.

Guest post by Chiara Denaro. Chiara Denaro is a sociologist (PhD), legal expert, and social worker, working for years with disadvantaged communities, in precarious settlements, squats, and detention facilities. She is currently a Postdoctoral Researcher at the University of Bologna (ERC, HEMIG Project – Hostile Environment and the Political Ecology of Border Violence), and part of the LIMINAL research team. Her socio-legal research work concerns search and rescue, asylum, and migration policies in the Mediterranean space, as well as border control policies, and the strategies of resistance put in place by people on the move. As part of the WatchTheMed Alarm Phone network, Chiara focuses on the Central Mediterranean route. 

On March 2nd 2024 SOS-Humanity rescued 77 people in international waters, and after being assigned Crotone as Place of Safety (POS), and disembarking people two days later, it was notified with a detention measure, issued by Crotone Port Authorities. The detention order was issued for the supposed violation of the so-called Piantedosi Decree, due to a lack of cooperation with the Libyan Coast Guard. As highlighted in the timeline of the events, the behavior of the Libyan Coast Guard was extremely threatening and violent: after reaching the scene of the rescue operation, they ordered the ship to leave the area, threatened the NGO crew with weapons and then shot in their vicinity. The civil reconnaissance aircraft Seabird by Sea-Watch e. V. NGO was also on scene, and documented people jumping into the water while the Libyan Coast Guard approached during rescue operation by Humanity I. After a fast-track appeal, SOS Humanity’s detention measures were suspended on 18 March, and then annulled – with a first decision issued on April 19 and confirmed on June 26. 

Framing this judgement within the broad criminalization of civil rescue, this blog post examines the decision issued by the Crotone court, highlighting its core arguments. Beyond challenging the Italy-Libya MoU and its operational implications on search and rescue and recalling – in accordance to the Supreme Court decision on Rackete, Vos Thalassa and Asso 28 cases – the lack of basic requirements to qualify Libya as a  Place of Safety (POS) – the Crotone judgement on SOS Humanity case goes a step further, by contesting the applicability of the very notion of “rescue” to operations at sea carried out by the Libyan Coast Guard. 

SOS Humanity criminalization: an exemplary case of a structural phenomenon 

Since 2017, the criminalization of civil rescue at sea has continued to evolveNevertheless, the judiciary outcomes of these legal proceedings were unanimous in confirming the compliance of NGO’s behaviors with international maritime law, human rights law and the right to asylum – contributing to their de-criminalization.  

New criminalization strategies were introduced in 2023, with the Piantedosi decree, which was accompanied by the so-called 'distant ports strategy' entailing the systematic assignment to NGOs of ports of disembarkation hundreds of miles far. Imposing private rescue vessels to reach the assigned port of disembarkation "without delay" after each rescue risked hindering an effective search and rescue by these vessels which - after having carried out an initial rescue - might be forced to disregard other reports of boats in difficulty in the same area. Moreover, highlighting the NGOs’ duty to obey orders received by “competent SAR authorities” raised multiple juridical concerns, as these included Libyan and Tunisian ones often asking them to “leave the scene” during rescue operations,  to intercept boats back to unsafe countries. The general aim was in continuity with the past along two lines: to keep NGOs away from the sea, silencing critical voices and erasing the critical gaze on border violence and human rights violations; and to limit their autonomy in international waters, not to interfere with the policy of pushbacks. 

Despite the Commissioner of the European Council asking Italy to consider withdrawing the Decree-Law, “which could hamper NGO search and rescue operations at sea” – as well as to suspend cooperation with the Libyan Government on interceptions at sea – efforts by the Italian government to obstruct civil search and rescue activities never ceased, with more lives put in danger as a result. 

Recently, three UN experts jointly requested information to the Italian government, by stressing their concern about unjustified administrative detention measures, possibly amounting to a restriction on the right to freedom of association and the right to promote and protect human rights, and questioning the compatibility of Piantedosi Law with international maritime law and the law of the sea. 

On what is rescue and what is not: the Crotone judgement 

The Crotone’s judgment takes an important stance about the very concept of “rescue”, by stating that operations carried out by the Libyan coast guard can by no means be qualified as rescue operations: 

Transposing the above-mentioned legal coordinates to the relevant factual data, it cannot be held that the activity perpetrated by the Libyan coastguard can be qualified as a rescue activity by the very manner in which that activity was carried out.  

In the Judge’s view, qualifying “a rescue operation” means simultaneously taking into account two elements: 1) the notion of “place of safety”, that exceeds the reading provided by maritime law, and results from its intersectional reading with human rights law,asylum law, and the SAR authorities’ duty to identify and communicate it; and 2) the behavior at sea of authorities who intercept the people at sea. 

On the first element, the Judgement calls into question the Italy-Libya MoU, by stating that even if the Libyan authorities’ modus operandi complies with that agreement, it is not respectful of international parameters. On the second element, the decision says: 

it is an undisputed circumstance and documented evidence that the Libyan personnel were armed and that, during these activities, they also fired shots; it is recorded that no safe place was made known by the Libyan authorities themselves who intervened to coordinate the migrants' recovery operations on the spot. 

Since 2017, shootings, threats, dangerous maneuvers, ramming, physical violence such as beatings and slaps, as well as the use of threatening discriminatory or racist language by the Libyan coastguard, are widely documented: beyond UN bodies and SAR NGOs amplifying migrants’ testimonies, these human rights violations are assessed by Frontex FRO in its Serious Incident Reports. Nevertheless, the agency keeps considering the referral of boats to Libyan authorities as “the applicable procedure”, without contributing to any form of accountability.  

Conclusive remarks 

The Crotone Court decision is part of several attempts by Italian judges to recall the principles established by the 2012 Hirsi case. While in that case a collective expulsion was carried out by an Italian naval asset, nowadays externalization policies produce legal black holes, in which establishing EU jurisdiction and responsibility for human rights violations looks harder.  

Since 2017, Italian navy ships have been anchored at Tripoli port with the explicit task to support the Libyan coast guard’s activities. Italian authorities continue playing a key role referring migrants’ boats to Libyan authorities “via telephone, via Arabic interpretation”, as the timeline provided by Crotone Port authority shows. 

Against this background, the Crotone Judgement seems even more crucial. It overturns a deliberate “misrepresentation of facts”, which erased the structural violence enacted by the Libyan Coast Guard at sea, and depicted NGOs as those who “endanger” human lives. Even more, It set up new legal cornerstones and conceptual limits, by clearly defining what counts as a rescue operation, and challenging the legality of cooperation with Libya, both in operational and political terms. Alongside the Brindisi Court decision about Ocean Viking case, these two cases represent a great precedent that could contribute to establishing the illegitimacy of ongoing criminalization of civil rescue. 

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