Right to self-defense for people at risk of being pushed-back to Libya

Report by the Civil MRCC legal team


In December 2021, the Court of Cassation – the highest court in Italy – acquitted for ‘non consistency of the facts’, two people on the move who had previously been sentenced by the Palermo Court of Appeal to more than three years’ imprisonment and a 50,000 euro fine, for the crimes of aiding and abetting irregular immigration and violence/threatening a public official.

In 2018, the two young men, together with other migrants, had been rescued by the merchant ship Vos Thalassa of the Vroon shipping company. The captain, on the instructions of the so-called LCG, had set a course south with the intention of transferring the shipwrecked people aboard one of the Libyan patrol boats, which would certainly take them back to the North African country. Taking people fleeing from that country back to Libya or handing them over to the Libyan authorities constitutes a violation of international conventions on the law of the sea and human rights, as international and courts of EU countries have constantly recognized, and can also constitute a crime, as the Court of Naples recently ruled in the ‘Asso 28’ case.

The group of shipwrecked people had strongly resisted, with words and gestures given the language difficulties, to the illegitimate transfer and the captain, who intended to carry it out, had therefore requested the urgent intervention of the Italian authorities. The Italian authorities ordered the transfer of the shipwrecked people aboard the Italian ship ‘Diciotti’, allowing them to disembark in Italy. Once they arrived, the two were subjected to a lengthy trial and were unjustly forced to spend many months in pre-trial detention.

The Court of Cassation made it clear that their gestures of resistance in the face of the danger of being sent back to Libya must be considered as a form of self-defense, a cause of justification that not only does not allow for the punishment of behavior that would otherwise be considered a crime but, on the contrary, sanctions its full legitimacy. The previous conviction was also harshly criticized for being silent as to why ‘the migrants did not have the right to oppose that situation, to assert their fundamental rights, to react by defending themselves against a refoulement that exposed them to the real risk of inhuman treatment; what was neither dealt with nor explained by the Court [of Appeal of Palermo] was why the people, who had not colluded with the smugglers and criminal organizations and who had not shown any oppositional behavior up to that moment, could not claim their fundamental rights, but had to remain “still”, inert, and accept to return to Libya with the risk of suffering torture or inhuman behavior”.

The Court of Cassation also made it clear that it was the determination of the extremely dangerous situation in which the defendants found themselves that was ‘against the law’, defined as the result of ‘unlawful conduct’. This is a very important decision that reaffirms how the right to be rescued at sea, to disembark in a safe place and also to fight for the respect of one’s rights belongs to everyone, regardless of nationality or legal status, and how it must be respected and protected without exception by anyone at sea, state and private vessels alike.

Echoes#1 – July 2022