Yasha Maccanico, Statewatch

Photo credit: Sergio D’Afflitto, via Wikimedia commons  

In December 2021, Italy’s highest court overturned the convictions and prison sentences of two men who were found guilty of leading a protest on a rescue ship. The men, from Ghana and Sudan, were part of a group of 67 migrants rescued from a distressed boat in the Libyan Search and Rescue zone in July 2018. Initially, the rescue ship was instructed to take the migrants to Italy, but later received orders to return them to Libya. This sparked resistance from the rescued individuals, who feared being sent back to a dangerous situation.

The court’s decision to overturn the convictions hinged on the fact that returning the rescued individuals to Libya would have violated the principle of non-refoulement, which prohibits sending people back to places where they face a real risk of torture or inhumane treatment. The court argued that the threat of harm faced by the migrants outweighed the acts of resistance they took on board the ship.

The court criticized the lower court’s reasoning, stating that the migrants’ fear of being returned to Libya constituted a legitimate defense for their actions. This fear was not adequately considered in the original trial, which relied on a presumption that the migrants had willingly put themselves in danger to reach Europe. The court also highlighted that the non-refoulement principle is non-negotiable, even in the presence of agreements like the 2017 memorandum between Italy and Libya.

The higher court emphasized that while states have the right to control their borders, this right is secondary to the obligation to rescue those in distress at sea and to uphold their fundamental human rights. The court meticulously analyzed the legal framework surrounding the case, including the duty of rescue, the definition of a “place of safety,” and the application of international maritime law.

The lower court’s assertion that the migrants had voluntarily put themselves at risk and were therefore not protected by the non-refoulement principle was deemed flawed. The higher court drew a clear distinction between the initial risk of shipwreck, which had passed, and the ongoing risk of return to an unsafe country. The court also rejected the lower court’s comparison of the migrants’ actions to consensual acts of danger, such as duels, emphasizing the involuntary and life-threatening situation the migrants were escaping.

Citing international legal precedents and reports from organizations like the UNHCR, the court affirmed that Libya was not a safe country in 2018, and therefore returning the migrants would have exposed them to potential human rights violations. The court also clarified that the existence of a memorandum between Italy and Libya did not change this fact.

Ultimately, the higher court overturned the convictions, concluding that the actions of the two men, while unlawful in a vacuum, were justifiable given the threat of harm they faced. The court stressed that the migrants’ resistance was a direct result of the order to return them to Libya and that they had limited options to protect themselves. This landmark decision reaffirms the primacy of the non-refoulement principle and sets a significant precedent for future cases involving the rescue and disembarkation of migrants at sea.