** Update, April 17: A month after the seizure in the port of Pozzallo, yesterday the Open Arms ship was finally free to sail again, as the judge for preliminary investigations in the Sicilian city of Ragusa ordered its release. The motivation is extraordinarily important: “Libya is not yet able to welcome migrants rescued at sea while respecting their fundamental rights”. So, even if last March 15, the Open Arms crew refused to hand the people they had rescued to a Libyan patrol boat (possibly disobeying the orders of the Italian Coast Guard), it was because they were acting “in a state of necessity”.
On March 27, just a few days after the seizure of the ship Open Arms, which we described in more detail here, the judge of preliminary investigations of Catania, Nunzio Sarpietro, confirmed the sequestration but dropped the charges of criminal association, thus returning the inquiry to the competent authority of Ragusa. His opinions are clearly expressed in the file: let’s examine them, point by point.
What’s in the papers
The judge confirms the sequestration of the ship and the original charge of aiding illegal immigration. As the number of the accused, however, has changed from three to two (the director of Open Arms who was in Barcelona at the time is no longer under investigation), the latter charge has been dropped.
As the investigation has been the competency of the public prosecutor of Ragusa from the very beginning, the charge of aiding was also the only way the public prosecutor of Catania could retake control through the anti-mafia prosecution; they now must give it back. Nevertheless, on April 3 the public prosecutor of Catania gave notice of not having any interest in giving up the investigation and issued the accused a summons for April 5.
The judge of preliminary investigations has decided that the content of the questioning given in Pozzallo by the head of the mission and the captain of the Open Arms at the moment of disembarkation is inadmissible, as the two offered their testimonies in the conviction of being people informed of the facts and not objects of an investigation.
The judge confirms that the Open Arms was subjected to armed threats from a patrol boat of the Libyan Coast Guard, a detail which is missing from Catania’s first file. It does, however, assign responsibility for the tension between the two crews to the Open Arms.
As opposed to the first file, the current papers also reconstruct which other boats could have been present in the area at the moment of the events.
The role of the Italian Navy
The text of the judge’s order confirms that the Open Arms received a call for help at 4.35 am, more than two hours before the Libyan Coast Guard assumed command; furthermore, it’s clear that, at that time, the Libyans had not even set sail, something which was in fact announced by the Italian Navy. The papers, which in turn are based on the reports from the General Command of the Italian Port Authorities, state: “At 05.37 [am] the personnel on board the Italian naval vessel Capri (operation NAURAS), stationed in Tripoli, communicated to Rome that a patrol boat from the Libyan Coast Guard would shortly thereafter sail towards the objective and specified that the Coast Guard would assume responsibility for rescue operations,” which took place officially at 6.45 am. “At 06.49 Rome communicated to the Open Arms that the Libyan Coast Guard had assumed coordination of rescue efforts, and that the NGO had been explicitly requested to remain out of sight of the migrants” – presumably so that the migrants, as had happened before, would not find themselves confronted with two very different destinies.
The appearance of the Capri is the most worrying element in the papers. The concern is that, more than delegating refoulments to Libya (illegal according to international law), the Italian Navy could be directly involved in conducting them. Indeed, speaking for and reporting complaints on behalf of the Libyans who had assumed command is the Italian Ministry of Defence itself: “At 08.56 the officer of the Italian Ministry of Defence in Tripoli contacted the IMRCC operations centre of Rome, complaining about the behaviour of the Open Arms, finding it to be contrary to the Code of Conduct signed with the Italian Ministry of the Interior,” the judge writes.
On March 27, having read the file circulated right after the judge’s announcement, the magazine Famiglia Cristiana underlined the role of the Navy in an article signed by the journalist Andrea Palladino – an article which just a few hours later would be removed from the web (you can, however, find it archived here) and substituted the following day with a modified version, a version in which the headline no longer makes any mention of the Navy and the journalist’s name is gone.
In the meantime, the Capri concluded its service of “repairing ships and providing training, mentoring and support to the Libyan Navy and Coast Guard” on March 28, the day after the judiciary’s announcement.
Bidding goodbye to 🇮🇹 ship Capri after months supporting #Libya-n Navy & Coast Guard, repairing ships and providing training, mentoring & support. Looking forward to continuing #Italy ‘s support with the incoming ship.
Great job guys! @SM_Difesa @ItalianNavy pic.twitter.com/xIGiNEebrB
— Italy in Libya (@ItalyinLibya) March 28, 2018
What returning people to Libya really means
As to the legal issues, Gianfranco Schiavone, vice-president of ASGI, says that the circumstances described in the papers resemble those in the Hirsi case: the collective expulsion in 2009 for which Italy was condemned by the European Court of Human Rights in 2012 “to the degree it directly intervened in rescue, returning the people back to Libya” despite knowing that doing so would expose them to “a real risk of inhuman or degrading treatment.”
On this point, the magistrate recognizes (an element which is absent in the first file from Catania) that the inhuman, “truly degrading” treatment the migrants suffer in Libyan camps is indeed well-known. Nevertheless, he considers “the protection of public order and needs of security and of peaceful coexistence within every single State (secured through a rational quota of migratory flow)” to be of greater importance. One reads that, of the 218 people taken on board the Open Arms, “it cannot without a doubt be affirmed that […] they would be returned to an imminently life-threatening situation, as another vessel was present on site and ready to rescue them.” The other vessel was, in fact, the Libyan Coast Guard, which would bring them back to detention camps.
For the judge, the fact that “landing in a Libyan port could signify the resumption of a problematic life situation, especially due to the precarious conditions […] of refugee camps in that country […] is of no relevance.” In effect, the Open Arms is being accused of attempting to open an unauthorised humanitarian corridor, while similarly calling into doubt the law of the sea, which holds that a rescue mission cannot be considered complete until all persons are safe, as can be read in point 8 in CILD’s Guide on rescue operations in the Mediterranean: “Survivors must be taken to a place which can provide the individuals with the fundamental guarantees (not just in terms of medical assistance but also that they will not be tortured and they will be able to submit requests for international protection). […] For example, the UNHCR believes that Libya does not meet the criteria for a place of safety.” Therefore, the judge’s opinion as to what constitutes a “place of safety” sounds rather arbitrary: “the concept of a ‘place of safety’,” he writes, “to which migrants rescued at sea be delivered connotes a landing without any specification as to the treatment that will be their destiny in the place which has been selected.”
The allusion to an unauthorised humanitarian corridor
Nonetheless, in paragraph after paragraph the judge insists that “the true purpose” of those under investigation is, above all, “that of bringing the migrants to Italy from Libya at all costs.”
The Open Arms was left without a place of safety for one whole day and night thanks to the naval command of Rome and Madrid – and this after saving 218 people – and from the file one can deduce that they were assigned to Pozzallo only after the ship had entered Italian waters. As to the fact that the captain did not want to ask to land in Malta, where they only disembarked a newborn and its mother who were in critical condition before setting back out to sea, you can read that although it was “noted that the Maltese authorities are usually not prone to receiving migrants […] over time that approach could change and, in the presence of certain circumstances, the answer could also be different.” Never mind the routine of the last number of years, the Open Arms had to at least try, it seems.
Concerns about Malta’s role in search and rescue operations are so old that they were already being discussed on the eve of Operation Mare Nostrum. Indeed, in the past there were fears that delays in certain rescues were attempts to convince Malta to take care of them. A few days ago, Giusi Nicolini published a tweet referring to the shipwreck of October 11, 2013, when she was the mayor of Lampedusa and had just dealt with the shipwreck of October 3. Speaking about the role of the Navy highlighted by the papers, she has written: “A choice of the government? Or a Navy initiative? On October 11, 2013, they decided to ignore the Syrians’ call for help in order to ‘flush out’ and force Malta into doing something. The result was a massacre that is still screaming for justice.”
What’s going on with Malta
There’s an unseen presence in the Open Arms affair: the coast guard at the port of La Valletta, Malta’s capital. According to the investigation in which the mission leader and the captain of the Open Arms have been charged, the Spanish vessel ignored the order to request La Valletta – the closest “place of safety”- to allow them safe harbour. And yet, from the very beginning, the Maltese authorities seem to have been “bypassed” by the Italian authorities in terms of coordination, and Malta has not given any official statements on these events. Nor do we know whether or not the Open Arms engaged in some form of dialogue with Malta. On this point, not even the Spanish NGO has completely clarified what took place.
In judge Nunzio Sanpietro’s order the word “Malta” appears six times. Never a protagonist, it always appears in a passive way. The only passage deemed worthy of note is the delivery of a child and its mother, their lives in danger, to a Maltese navy vessel.
What’s clear is that the first MRCC (Maritime Rescue and Coordination Centre) to ask the Open Arms to move towards one of the ships in difficulty “at about 40 nautical miles northeast of Tripoli” is that of Rome, this in spite of the fact that, geographically, the SAR event was in a region of responsibility closer to the Maltese search and rescue region (SRR). Indeed, it had been spotted by an airplane from Cincnav, the operating arm of the Italian Navy.
Why Malta is absent in terms of rescue and reception
Italy and Malta have frequently traded responsibility for engaging in rescue operations at sea. That is, ever since 2002 when fishermen were the ones to intervene: just as it is for the Open Arms today, back then finding a place of safety which had authorised the disembarkation of those rescued was a problem. “For Malta the objective has always been that of taking the lowest number of migrants possible in order to avoid having them weigh on the internal system of reception,” Neil Falzon tells us, in his capacity as a human rights lawyer and expert as well as director of the NGO Aditus.
In this way Malta has participated in the coordination of rescues, but tended to hand over the responsibility for reception to Lampedusa, maintaining that the majority of those rescued have been closer to Italian shores. In 2004 there were amendments introduced to the SOLAS and SAR conventions, which continue to call upon the country coordinating rescues to be responsible for providing a “place of safety” for those rescued at sea. Malta has not ratified the new convention, for it sees it as an imposition to have to accept all those rescued at sea due to the coordination of their own MRCC. “Each of the two countries had the right to not ratify the new treaties, but the ones to lose out, obviously, are the migrants blocked at sea with no one to save them,” Falzon adds.
This arm wrestling has been in effect since the launching of the Mare Nostrum operation in October 2013. In practice, with that mission the Italian Navy took up a predominant role in the strait of Sicily. As a consequence, the number of migrant disembarkations in Italy have increased, while Malta has assumed an ever more marginal role.
Since 2015 “disembarkations in Malta have been virtually zero. It’s a fact. And it remains inexplicable unless there’s been some kind of agreement the content of which has never been made public,” Falzon maintains. The Maltese government has always denied the existence of an agreement based on the good relations between then-Prime Minister Matteo Renzi and the Prime Minister of Malta, Joseph Muscat. This particular narrative holds that Italy was given permission to explore Maltese waters for crude oil in exchange for allowing zero debarcations in Malta. According to a number of our sources, however, it is a rather farfetched hypothesis: on the one hand, it seems foolish to exchange the management of migrants, concrete and with immediate consequences, with a “virtual” good – in other words, oil that still needs to be found; on the other, in the case of finding deposits, Italian use would inevitably have to pass a vote in the Maltese parliament, seeing as it would have to do with a concession within their borders. And yet, in May 2017 Mario Borghezio, a Northern League member of the European Parliament, reintroduced the topic in a written query directed to Dimitris Avramopoulos, European commissioner for migration.
What could now change
“In Malta today you can sense a certain tension regarding the results of the last elections in Italy and some of the changes which have occurred in the European missions,” Falzon tells us. The case of the Open Arms, he believes, is confirmation of the fact that some equilibrium has been lost. As far as he can remember, never has a vessel engaged in a rescue operation been ordered in any way to stop in Malta. And the practice of not involving the Maltese authorities even seems to be turning into a crime.
Another factor is the beginning of the European and Coast Guard agency Frontex’s new mission. Up until Triton, the Centre for International Studies says in a report, “those men and women saved at sea were brought to Italy without distinction; irrespective, in other words, of the geographic proximity of other countries.” Each and every member State involved in coordinating Frontex operations was expected to have been concerned with reception as well. Through its actions, Malta was no longer a participant in directing missions at sea. With the launch of Themis in February, however, those rescued at sea will be just taken to the closest port. Being an EU country, one would expect Malta to act in accordance with the directions of the new European mission.
Cover photo: Image taken from the ProActiva Open Arms Facebook page