Scorched Earth... in the Middle of the Sea: Italy’s fight against NGOs saving lives along the Central Mediterranean route

The shift from rescue to pushback highlighted by Pierluigi Musarò and Asher Hirsh in their blog contribution lies at the heart of the agendas of many European countries.

In particular, this is one of the top priorities of the current Italian government, which has always claimed that Italy is the EU Member State with the highest number of arrivals of asylum seekers. As Italy deems to be excessively burdened by the well-known "Dublin III" system, the plan of the government is now to drastically reduce the number of migrants heading for the Italian coast.

A first step towards the adoption of deterrence measures to prevent sea arrivals is represented by the 2018 Decree Law on Immigration and Security (d.l. n. 113/2018, "Security Decree I"), subsequently converted into a Law of the State (l. n. 132/2018). For brevity, the key points of the bill in terms of migration-related issues are the following: abrogation of "humanitarian protection", restrictions on the national System of Protection of Asylum Seekers and Refugees ("SPRAR"), extension of the grounds and maximum duration of the foreigner's detention. Predictably, the Security Decree I raised many concerns because it contributes to undermining the multilevel rights recognised and guaranteed to asylum seekers and displaced people.

Against this background, another Decree Law on Immigration and Security was adopted in June by the Council of Ministers (d.l. n. 53/2019), this time with a view to addressing the external dimension of migratory flows. The "Security Decree bis" was transposed into a national Law (Security Law bis) on 5 August; the procedures leading to the adoption of that Law were subject to a parliamentary vote of confidence. The purpose of the bill is to prevent search and rescue activities carried out by NGOs in the Central Mediterranean Sea. The idea underpinning the measure at hand is that those NGOs are key drivers for illegal migration in Italy. The Security Decree bis has proved controversial for at least two reasons. First, it implicitly "stigmatises" the mission of crucial actors that - for the record - have never been held responsible by the Italian judicial authorities. Second, it seems to be incompatible with the Italian Constitution and many international and EU law rules protecting fundamental rights of individuals in vulnerable conditions, like asylum seekers and migrants at sea.

Basically, the text of the new bill provides for fines of up to one million euros for ships that "ignore bans and limitations" on accessing Italian waters, plus the seizure of vessels failing to respect such orders more than once. It should be noted that under the Security Decree bis (and the Security Law bis) entry bans could be decided also by the Ministry of the Interior, namely, Matteo Salvini, who is the main promoter of the bill. Actually, this is not the only national measure targeting NGOs which deal with search and rescue close to Italian waters. To give just one example, two years ago the former Ministry of the Interior launched a code of conduct to regulate the activities of NGOs in the central Mediterranean Sea; the code itself was endorsed by the European Union.

The core provisions of the Security Decree bis were immediately invoked against a ship of the Sea-Watch NGO after it rescued more than 50 people from a rubber dinghy off the Libyan coast. The Sea-Watch 3 vessel bypassed the blockade of the Italian armed forces and reached the port of Lampedusa (Sicily). All migrants were disembarked, while the captain was first arrested and then released. The Sea-Watch 3 incident is not an isolate affair, as it brings back to mind other similar cases involving Italy in 2018 and 2019: to list but a few, Aquarius, Open Arms and Sea Watch (again).

It has to be stressed that the Security Decree bis was "tested" in the middle of the new Libyan crisis, as the situation of this country has worsened again over last months. But despite the statements by the United Nations, the European Union and the Council of Europe that Libya is not a safe country, Italy's entry ban against search and rescue NGOs has the effect of leaving many migrants in the hands of Libyan officials. Needless to say that under the light of applicable multilevel rules and existing geo-political circumstances the Security Decree bis was widely criticised (primarily by the UNHCR and the OHCHR (6.1Mb pdf)).

The securitisation approach behind the national measure discussed in this post shows how the externalisation of asylum policy has been developing in the European Union, as already anticipated by Professor Philomena Murray's blog contribution. Indeed, the growing socio-political consideration of migrants as security concerns contributes to fostering the nationalist rhetoric of far-right political parties. For instance, almost 60% of Italians supported Salvini's decision to close national ports to NGO vessels. This is not surprising given that immigration recently ranked first among the most worrying issues for the people living in the EU. However, this way of carrying out the externalisation of asylum policy has ended up depriving migrants in vulnerable conditions of any form of assistance since they are left to die. Regrettably, Italy's fight against NGOs is a side effect of the repeated Member States' failure to bring about a solidarity-oriented legal reform on international protection at European level, thereby fuelling the "Orbanisation" process of EU asylum law, to use an expression of Professor Steve Peers. And until Member States refuse to give rise to a fruitful cooperation in the framework of the EU things are not likely to improve.

Short biography

Federico Ferri is Research Fellow in EU Law at the University of Bologna and a civil attorney in the municipality of Bologna. He holds a PhD in European Law from the Universities of Bologna and Strasbourg (2015) and a Specializing Masters in Human Rights and Humanitarian Intervention (2011). Federico conducts research and published widely on migration issues at international and EU level. He also monitors the evolution of the EU secondary law and jurisprudence on migration on behalf of the journals and Diritto, immigrazione e cittadinanza. He also deals with many other fields falling within the scope of the law of the EU, such as sustainable development, development cooperation, environment and energy, digital innovation, intellectual/industrial property.