On 31 May 2024, Ms. Mary Lawlor, Special Rapporteur on the situation of human rights defenders; Cecilia M. Bailliet, Independent Expert on human rights and international solidarity and Mr. Gehad Madi, Special Rapporteur on the human rights of migrants issued a communication (AL ITA 4/2024) to the Italian government raising serious humanitarian and legal concerns with respect to Italy’s policies like enforcement of Law no. 15/2023. The experts elaborate on how Italy’s policies of detention of civilian Search and Rescue (SAR) vessels and interrogation of crew members violate international maritime law and human rights principles by hindering the efforts of humanitarian organisations, criminalising humanitarian work, and exposing migrants to life-threatening conditions.

Key Concerns

The Special Rapporteurs raised a plethora of concerns about the detention of SAR ships, criminalisation of SAR operators, and violations of international maritime law and human rights standards, among a few others. The communication mentions Law No. 15/2023, which has allegedly been misused to detain nearly 20 civilian SAR vessels since it entered into force. It elaborates on how the detentions are mainly based on allegations of failure to comply with orders from Italian and Libyan authorities. The experts express the concern that the detentions result in a restriction on the freedom of association and the right to promote and protect human rights. The communication also indicates how the law has been misused to impose hefty fines alongside detentions under Article 1.2 bis (f). It also mentions the continued policy of Italian authorities to assign distant ports for the disembarkation of individuals rescued at sea. This practice was started and mainstreamed around December 2022. The communication sheds light on how this policy of assigning distant ports negatively impacts rescue operations, as it causes delayed disembarkation, which jeopardises the safety and health of the rescued individuals. The time taken to travel to distant ports adds to the emotional and psychological distress, medical emergencies, and an exacerbating shortage of food and water for the migrants. 
The communication sheds light on the criminalisation of human rights defenders who participate in SAR operations. It refers to past communications like ITA 1/2022, ITA 2/2021, ITA 1/2021, and ITA 7/2020, where this concern has been raised multiple times. The Rapporteurs underline that the crew members of search and rescue operations have faced interrogation without legal representation, and the Head of Mission or the Shipmaster were not provided a transcript of the interview as they were considered “persons informed of the facts” under Article 351 of the Italian Code of Criminal Procedure. Thus, the experts have raised serious questions on the compatibility of Italy’s approach with the UN Declaration on Human Rights Defenders. 
Additionally, the experts refer to the violation of many international legal provisions due to Italy’s approach that contributes to the deprivation of life. The frameworks mentioned in the communication include the United Nations Convention on the Law of the Sea (UNCLOS) which makes it mandatory for states to help people in distress at sea; the Safety of Life at Sea (SOLAS) Convention which commands shipmasters to provide immediate assistance; the International Covenant on Civil and Political Rights (ICCPR) which prevents arbitrary deprivation of life, and the OHCHR Principles and Guidelines on Migrants' Rights in Vulnerable Situations.

Case of Sea Watch 5 and Geo Barents

The communication details the case of two civilian SAR vessels being detained and the consequences of the activities undertaken by the Italian authorities:

• Sea Watch 5: The experts elaborate on the detention of Sea-Watch 5, a search and rescue ship managed by Sea-Watch, a humanitarian organisation established in 20214 in Germany to respond to the refugee crisis. Since then, the organisation has provided help to people in distress at sea by participating in maritime rescue operations in and around the Central Mediterranean. In March 2024, the vessel took part in a rescue effort. During its work, it encountered a number of difficulties, like unfavourable weather and legal complications.
  The Rapporteurs shed light on how, during the rescue efforts carried out by Sea-Watch 5 on March 3, 2024, the crew tried to get in touch with the Libyan Coast Guard for assistance but failed to receive a response. The Italian authorities assigned Reggio di Calabria for disembarkation despite the unsuitable weather conditions. The vessel requested the assignment of a closer port, which was denied. Only on March 5th did the Italian Coast Guard agree to move the rescued people to another ship so they could disembark. Meanwhile, they were forced to find refuge close to the island of Lampedusa. The Communication provides further details on the ensuing complications on March 6 while the vessel was on International waters. The Libyan Coast Guard ordered the vessel to change its course without any clarification, which created a risk of collision with a merchant ship.
  Later, on March 6,  Sea-Watch 5 witnessed another migrant vessel in distress and, when Libyan authorities did not respond, launched a rescue operation, taking  56 more passengers onboard. Some of these people were in desperate need of immediate medical assistance. The experts raise questions on how, despite the fact that several of the rescued individuals were in critical condition, medical assistance was not immediately provided by Italian, German, Libyan, or Maltese officials. The delayed reaction and the hours of waiting led to the death of a 17-year-old person on board the rescue vessel. Due to several requests for a secure port for the remaining rescued individuals and urgent medical evacuation, the ship was rerouted to Ravenna, a port that was almost 800 nautical miles away. After repeated appeals, the Italian authorities ultimately allowed the Sea-Watch 5 to dock at Pozzallo, Sicily, on the evening of March 7.
  Additionally, the Communication includes details of detention and legal proceedings commenced on March 8 2024, when Sea-Watch 5's Head of Mission and Shipmaster were interrogated by the authorities without legal representation. After the interrogations, the Italian Capitaneria di Porto detained the ship and imposed fines based on suspected violations of Law No. 15/2023. The violation mentioned by Italy included the disregard for directives from Italian authorities and the Libyan Coast Guard. The ship spent 20 days in custody. On March 28, one day before the detention order expired, the Court of Ragusa issued an interim verdict ordering the vessel's custody to be suspended after Sea-Watch appealed the sanctions.
• Geo Barents: Another instance highlighted in the Communication concerns the detention of Geo Barents, a vessel operated by Médecins Sans Frontières (MSF). The ship has been a part of several rescue operations for migrants and refugees at sea in the Central Mediterranean since 2015. The Rapporteurs provide the details of the claims made by the MSF. On March 15, 2024, the Geo Barents witnessed a “pullback” where the Libyan Coast Guard intercepted a distressed ship in the Maltese SAR area and forced more than 100 people to move back to Libya.
  The Communication mentions that on March 16, the Geo Barents retrieved 146 individuals, including children, from a wooden vessel in international waters. A Libyan Coast Guard ship made an attempt to step in during the mission, but it's reckless maneuvers caused the SAR effort to become unstable. In addition to threatening the Geo Barents’ crew and the individuals being rescued, Libyan authorities attempted to board a rescue boat by force. The two-hour-long altercation delayed the ship's ability to finish the rescue mission. The Libyan Coast Guard left the site only after extensive negotiations between Libyan, Norwegian, and Italian authorities.
  The experts elaborated on how the Geo Barents saved another seventy-five people later that day, including those whose fiberglass boat capsized. The port of Marina di Carrara was designated for the Geo Barents' disembarkation after the successful rescue operations. However, it took around 80 hours to get to the harbour, which was 620 nautical miles from the rescue location. The Communication raises questions on how, upon disembarkation, law enforcement and the Italian Coast Guard questioned the Project Coordinator and the Captain of the Geo Barents for around 4 to 5 hours.  Later, the crew of the Geo Barents received a notification that the vessel had been detained in accordance with Law no. 15/2023 for the alleged non-compliance with the directives from the Libyan Coast Guard while performing the rescue on 16 March 2024. MSF then filed an appeal on March 22 with the Italian Civil Court of Massa against the detention of the vessel.
  Thus, the Special Rapporteurs highlight concerns about the administrative detention of the civilian SAR vessels and the practice of imposing fines on their operating NGOs using Law No. 15/2023. In their Communication, the arbitrary nature of these detentions is repeatedly mentioned, and the point is raised of how such measures restrict the ability of the NGOs to carry out rescue operations effectively. The Special Rapporteurs underline that these actions jeopardise the fundamental rights of the migrants in distress. The experts question the rationale behind the policy of assigning distant ports for disembarkation. They reiterate that although States are in charge of the SAR missions, protecting the rights of migrants trying to cross the Mediterranean requires cooperation among governments and any independent rescue organisations operating in the concerned area. Finally, the Rapporteurs call for the protection and facilitation of SAR operations in the Central Mediterranean, emphasising the urgency with which these challenges must be addressed.

Recommendations and Way Forward

In their Communication, the experts urge the Italian government to take meaningful actions to resolve the issues emerging from the implementation of  Law No. 15/2023. They further suggest that Italy should reevaluate its approach toward civilian SAR ships and make sure that administrative and legal actions do not hinder the rescue work carried out by the humanitarian organisation. They further underline that, in keeping with international maritime law and human rights norms, civilian SAR activities cannot be unjustly interfered with.
The experts recommend that the Italian government carry out a comprehensive human rights impact assessment of Law No. 15/2023 and its practice of designating remote ports for disembarkation. They emphasise that these evaluations are required to determine whether the law complies with Italy’s international commitments. Italy should also make sure that it fulfills its responsibility to defend the rights of migrants and asylum seekers. They also demand that these procedures be transparent and that humanitarian actors be included in conversations about SAR efforts.
Instead of enforcing strict restrictions that stand in the way of the work of the humanitarian organisations, the Rapporteurs urge the Italian government to improve cooperation with humanitarian organisations to bolster its SAR abilities. The Communication calls upon the government to ensure that humanitarian aid should not be criminalised or penalised. Finally, the experts request a response from the government on their plans to strengthen SAR operations, reception, and assistance capacities. 
The Communication remained confidential for 60 days, during which time the Italian government had the opportunity to submit a reply. However, the government submitted its response on 5th August 2024.

Italy’s Response

In its reply, Italy defends Decree-Law No. 130/2020 and Law No. 15/2023. It argues that the laws’ main objective is to ensure the safety of operations and maintain public order. In the case of Sea Watch 5 and Geo Barents, the government justified the imposition of fines and the detention of the vessels by maintaining that the ships failed to comply with the orders from responsible authorities and contributed to creating a “dangerous situation.” 
The reply also touched upon the issue of the assignment of ports for disembarkation. The government maintains that the assignment is based on several considerations, such as preventing overcrowding at frontline reception centers and allowing procedures specific to hotspots like Lampedusa to be carried out effectively and orderly. It also mentions that the assignment of locations in Sicily as disembarkation ports during the summer periods is difficult as the island lacks sufficient transport infrastructure. This unavailability of transport contributes to unplanned periods of stay of migrants in facilities organised for a short stay. Thus, the rationale of the assignment of distant ports is to provide timely disembarkation for which logistical and security factors need balancing.
Finally, Italy disputes claims that its policies violate human rights, maintaining that Italian laws and its policy approach are reasonable, compliant with international law, and intended to protect both national security and the lives of migrants. The reply concludes that Italy is dedicated to working with UN Special Procedures, stressing its respect for humanitarian principles and the sea law while efficiently handling migration.