The real criminals in the Sea-Watch saga

It is, ironically, Italy’s own defiance of international law that caused the emergency in the first place. The Italian government’s attempts to deny entry are what must be viewed as the illegality in this scenario

The arrest of Sea-Watch caption Carola Rackete by the Italian authorities once again highlights the perils of neglecting the immigration phenomenon at European level.

In the immediacy, it also underscores a millennial truism about the law. On paper, Rackete’s actions could be interpreted as a direct disobedience of a country’s laws. But while Italy is no doubt a sovereign state, it is also bound by numerous international treaties – including global maritime law – which necessitate that human lives must be saved at sea.

There were 42 rescued individuals on the Sea-Watch 3 when it forced its way into Lampedusa; they had been stranded for seven days, and some were threatening to jump overboard and end their misery by drowning.

Both legally and morally, Carola Rackete was right to defy Italian law. It was an emergency situation, and international law makes it very clear that Italy was compelled to suspend its own laws – which are here clearly in breach of international treaties – and allow that ship to dock.

It is, ironically, Italy’s own defiance of international law that caused the emergency in the first place. The Italian government’s attempts to deny entry are what must be viewed as the illegality in this scenario. The European Union should be treating Italy’s behaviour as being incompatible with that of an EU member state.

This is indeed what has already happened in the case of Hungary: where a legislative package passed in 2018 renders those providing support to people seeking to claim asylum at risk of prison.

But while the European Commission took legal action to challenge Hungary’s policy, Italy’s actions have remained largely unchallenged by EU authorities so far.

Cartoon by Mikiel Galea
Cartoon by Mikiel Galea

Nonetheless, this is but a small detail, when compared to the European Union’s failure – both collectively and individually – to ever address the problem in the Mediterranean.

It is not only Italy that is at fault here. Neither the European Commission, nor any individual member state, offered a solution for the disembarkation of the migrants on board the Sea-Watch 3.

In the end, it had to be Carola Rackete who – in the words of her NGO - was “both forced and willing to take responsibility and who brought the people to safety against all adverisities.” […]  and to “enforce the rights of the rescued people to be disembarked to a place of safety”.

This is, effectively, the driving force behind situations with which Malta has become all-too familiar of late. Unilateral actions - taken by countries like Italy, and unchallenged by the EU - will ultimately punish Malta in the long run: Malta usually being the first frontier state to welcome migrants.

Rather than applaud the illegal actions of the Italian government, Maltese ‘patriots’ would do well to remember that Italy takes such actions specifically to force other countries – Malta included – to take in the rescued migrants in its place.

It is ironic, that so many people who do not want more migrants, seem to also agree with policies that will make more arrivals inevitable.

But the problem runs much deeper. The involvement of NGOs in the rescue of boat migrants – an influx in part informed by the smuggling trade active in exploiting the flight of both economic migrants and refugees – is in itself a direct result of the vacuum left by the EU in the Mediterranean sea, when it refused to patrol these waters by devolving its SAR duties to Libya.

On June 3, the ICC received a legal submission calling for the EU and some of its member states to face prosecution for enacting migration policies “intended to sacrifice the lives of migrants in distress at sea”.

After Italy’s military-humanitarian rescue operation ‘Mare Nostrum’ in 2014, the shift toward deterring migrants from crossing the Mediterranean to reach the EU only resulted in more fatalities: with thousands being left to drown, in the belief that ‘sacrificing more migrant lives at sea’ would deter other migrants from making risky voyages across the Mediterranean.

Apart from being utterly indefensible by any standard, that assumption is also manifestly wrong. Crossings have continued unabated, as illustrated by the Sea-Watch incident itself.

Meanwhile, interceptions of migrant boats by the Libyan authorities have resulted in tens of thousands of people being sent back, or refouled, to Libya in recent years – ironically through the greater presence of EUNAVFOR assets informing the Libyan coastguard about the whereabouts of migrant boats so that they can intercept them.

The result is that migrants are being forcibly returned to Libya, an active war-zone, where they are held in inhumane detention camps. NGOs have documented that many migrants have been exposed to systematic forms of torture, sexual violence, and extortion at these camps.

That, in itself, is a violation of ‘non-refoulement’: a fundamental principle of international law, that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on ‘race, religion, nationality, membership of a particular social group or political opinion’.

There can therefore be no doubt as to who the real criminals are in this situation: the individual countries that defy international law; and the European Union that abets them.

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