Electronic copy available at: http://ssrn.com/abstract=1873544

INEX

Pa

per

Fishers of Men? The Interception of Migrants in the

Mediterranean Sea and Their Forced Return to Libya

INEX Paper

October 2010

By: Matteo Tondini* Post-Doctoral Researcher, VU University Amsterdam, Department of Governance Studies

(m.tondini@vu.nl).

* This work gathers from, and expands further upon, a paper presented by the author at the Seminar Migration Law

and Human Rights, held at Bergen aan Zee (NL) on 21-22 January 2010. This paper has been written in the context

of the INEX Research Project, funded by the European Commission under the VII Framework Programme

(). Thanks are due to Prof. Thomas Spijkerboer (VU University Amsterdam), Cdr. Jean Paul

Pierini (Italian Navy) and Dr Jorrit Rijpma (Leiden University, Faculty of Law) for exchanging useful material and

advice.

Electronic copy available at: http://ssrn.com/abstract=1873544

2

Abstract

This paper presents an extensive account and assesses the legality of the recent naval constabulary

operations undertaken by Italian and Libyan military vessels in the central Mediterranean Sea, aimed at

intercepting boat people in international waters and returning them to the Northern African coasts. If

considered as a border control operation, the interception of migrants and their debarkation in a third

country often lacks a valid legal basis. The latter is easier to be found under maritime law, by labelling

interceptions as rescue missions. Nevertheless, such operations must be conducted according to state

obligations under human rights law and refugee law (especially the non-refoulement rule), which only allow

Italian vessels to disembark boat people to a safe third country. The paper concludes that since Libya

cannot be considered a safe third country in this sense, the interception of migrants on the high seas and

their forced return to Tripoli may entail violations of maritime, human rights, migration and refugee law at

both an international, European and domestic level.

Keywords

FRONTEX; Interceptions; Irregular Migration; Italy; Libya; Mediterranean Sea; Non-Refoulement; Rescue

Operations at Sea

3

1. Introduction

There is no direct information on what happens on the

high seas, and there will never be1

In the current political debate within EU member states, the fight against illegal immigration is often

considered a fundamental part of the new European Security Prism.2 The significance of such a topic in

future security studies is doomed to increase, due to new exclusive and identitarian European and national

policies adopted following the September 11 attacks.3 In this context, the recent forced return of migrants

carried out by Italian military vessels in the central Mediterranean Sea may be considered a typical example

of this novel shift in security practices. The measures in question have raised concern and criticism at both

domestic and international level, as they may imply potential human rights violations. At a closer legal

analysis, however, things become more complex, revealing profound uncertainties in the applicable legal

regime. Whilst it is generally difficult to find a suitable legal basis for interceptions of migrants in

international waters, it is hard as well to define illegal as such their debarkation to a third country, without

taking into account the specific conditions of the concrete case.

For this reason, in order to study the topic in depth, this paper first provides an extended account of

interception operations, describing in detail relevant facts and particulars (Section 2). The following two

sections (3 and 4) address the Italian official position and the judicial proceedings pending before the

Strasbourg and Italian courts. In particular, Section 3 contains the analysis of the recent Report issued by

the Committee on the Prevention of Torture on the matter, whilst Section 4 examines the Hirsi case and

the allegations brought forward by the Prosecutor of Siracusa. Section 5 is dedicated to the EU action and

the disputed role of FRONTEX in the operations role which has been totally excluded by the Agency.

Section 5 also considers the new Rules for FRONTEX Missions at Sea, adopted by means of a Council

decision in April 2010 and now under the scrutiny of the European Court of Justice. The next two sections

(6 and 7) present a legal analysis of interceptions under both maritime, human rights and refugee law.

Section 7 is divided into three sub-sections on the possible circumvention of the right of asylum for

intercepted migrants, the potential breach of the non-refoulement principle and the responsibility of Italy

in relation to human rights violations arising out of interventions, respectively. The eighth section is entirely

devolved to the issue of the alleged detention of migrants on board Italian vessels. The conclusion

(Section 9) summarises the outcome of the analysis developed in previous sections and tries to

differentiate between border control and rescue operations. Although it seems generally difficult to justify

interceptions if considered as falling within the anti-immigration realm, it is easier to legally consider them

as rescue operations, provided that Libya may be deemed as a safe third country for their debarkation.

Under present circumstances, however, this has to be excluded. Ultimately, this paper also contains

references to some unpublished material (such as the 2009 Protocol between Italy and Libya and the

indictment put forward by the Prosecutor in Siracusa), as well as parts of an interview with the Executive

Director of FRONTEX.

1 Colonel Francesco Saverio Manozzi, Former Commander of the Guardia di Finanza Operational Room. Statement

taken from the Audio-documentary Krieg Im Mittelmeer, by Roman Herzog and quoted in M. Vella, Frontex: Out

of Control?, Malta Today, 20 July 2008, available at

(accessed 3 May 2010). 2 D. Bigo, Security and Immigration: Toward a Critique of the Governmentality of Unease, 27(1) Alternatives 2002,

63-92, at 63. 3 See on the matter E. Guild, International Terrorism and EU Immigration, Asylum and Borders Policy: The

Unexpected Victims of 11 September 2001, 8(3) European Foreign Affairs Review 2003, 331-346.

4

2. Facts, Details and Numbers

The practice of intercepting boat people on the high seas and returning them back to Libya started in May

2009, following the adoption of the Treaty on Friendship, Partnership and Cooperation between Italy and

the Great Socialist People's Libyan Arab Jamahiriya.4 The Treaty served as an important step towards the

implementation of a previous agreement on joint sea patrol operations, which was signed by both

countries in December 2007 and was specifically aimed at contrasting illegal migration.5 Together with the

Protocol, the Italian and the Libyan delegations signed a Technical Agreement, aimed at implementing the

contents of the political accord.6 Italian proposals for organising joint anti-immigration operations had been

initially refused by the Libyan government in 2003, notwithstanding that the two countries had already

concluded two police cooperation agreements in December 2000 and July 2003, respectively, with the

further establishment of an Italian investigation unit in Tripoli in May 2003.7 Following the Treaty on

Friendship, on 4 February 2009 Italy and Libya drew up an implementation protocol of the 2007

agreements.8 Such a protocol which is still unpublished paved the way to the first Italian interception

operation, which was carried out on 6 May 2009. The document in question does not however provide any

legal basis to the operations concerned, as it only vaguely refers to the duty for both countries to repatriate

migrants from their own territory.9 During 2009, Italian vessels carried out 11 interception operations (nine

towards Libya and two towards Algeria), which resulted in the forced return of 834 and 51 migrants10 to

the Libyan and the Algerian11

coasts, respectively.

4 The Treaty was eventually ratified by Italy with Law No. 2009/7. See on the matter N. Ronzitti, The Treaty on

Friendship, Partnership and Cooperation between Italy and Libya: New Prospects for Cooperation in the

Mediterranean?, 1(1) Bulletin of Italian Politics 2009, 125-133. 5 Protocollo tra la Repubblica Italiana e la Gran Giamahiria Araba Libica Popolare Socialista, Tripoli, 29 December

2007, available at (accessed 14 June

2010). 6 Protocollo Aggiuntivo Tecnico-Operativo al Protocollo di Cooperazione tra la Repubblica Italiana e la Gran

Giamahiria Araba Libica Popolare Socialista, per fronteggiare il fenomeno dellimmigrazione clandestina

[Additional Operating and Technical Protocol to the Cooperation Protocol between the Italian Republic and the

Great Socialist People's Libyan Arab Jamahiriya, to tackle the phenomenon of illegal immigration], Tripoli, 29

December 2007, available at (accessed

14 June 2010). 7 P. Cutitta, Readmission and Forcibly Return in the Relations between Italy and North African Mediterranean

Countries, paper presented at the Workshop The Implications of Readmission and Enforced Return on Euro-

Mediterranean Relations and Beyond, Montecatini (Italy), 12-15 March 2008, p 5, available at

(accessed 3 May 2010). 8 Protocollo concernente laggiunta di un articolo al Protocollo firmato a Tripoli il 29/12/2007 tra la Repubblica

Italiana e la Gran Giamahiria Araba Libica Popolare Socialista, Tripoli, 4 February 2009 (document obtained during

fieldwork activities carried out in the context of the INEX Research Project ). 9 Ibid., Art. 2.

10 Ministry of Interior, Italian Initiatives: Security, Immigration, Asylum, Rome, 14 April 2010, p. 27, available at

(accessed 14 June 2010). Other official sources confirm that, from 6 May to 7 September 2009, 1,005 migrants

have been returned to Libya: 833 by Italian vessels and 172 by Libyan patrol boats (see the speech of the

Ambassador of Italy to Tripoli, Francesco Paolo Trupiano, before the Italian Parliaments Schengen Committee,

Rome, 13 October 2009, available at

accessed 4 May 2010). 11

The operations in question occurred on 14 June 2010 and in August 2010. To date they are the sole two

interventions carried out in cooperation between Italy and Algeria. For that reason this paper will almost entirely

deal with the forced return of migrants to Libya.

5

Interventions took place in international waters only, although Italian military ships sometimes entered the

Libyan waters to bring migrants ashore. Operations were mostly carried out by Coast Guard or Guardia di

Finanza patrol boats.12 Apparently, the Italian Navy intervened only two times, i.e. on 10 May and 1 July

2009. Migrants were initially stopped in international waters by Italian military vessels, then taken on board

and directly returned to Libyan ports.13

Sometimes, the handover of migrants to Libyan forces took place

directly at sea at the limit of Libyan territorial waters and safe from prying eyes.14

At present, operations

are often carried out entirely by Libyan vessels. However, missions are de facto coordinated by, or at least

conducted with some support of, the Italian and Maltese authorities, which first detect the boats to be

intercepted and then request the assistance of their Libyan partners.15

According to an on-line database

based on media information, the total number of migrants returned by both Italian and Libyan vessels to

Libya from 6 May to 22 November 2009 was 1,409.16 Besides, it is worth mentioning that Italian forces

already had experience of forced return operations at sea, matured during the 2007 FRONTEX mission off

Senegal. In March 2007 an Italian Coast Guard patrol boat participating in the FRONTEX Operation Hera III

boarded coactively a North Korean cargo ship (with Georgian crew) in international waters which was

transporting migrants and diverted it to Dakar. The cargo was then taken back out of the Senegalese

territorial waters, following the refusal of the authorities in Dakar to disembark the migrants. Reportedly,

there were in fact no Senegalese citizens involved.17 The cargo (and the migrants) was eventually set free to

continue its trip. For the lack of any national link with the boarded vessel as well as the absence of any

rescue or anti-slavery purpose in the action, the latter was probably undertaken without any valid legal

mandate.

In order to improve the Libyan capacities in naval constabulary and border control operations, Italy also

supplied the Jamahiriya with specific maritime assets and trainers. Indeed, on the basis of the 2007 and

2009 agreements, the Rome Government donated to Libya six Guardia di Finanza patrol boats (three in

March 2009 and three in February 2010), which are now used in both international and Libyan territorial

12

On the different powers of Italian institutions re maritime patrols, see F. Caffio, Immigrazione Clandestina via

Mare: LEsperienza Italiana nella Vigilanza, Prevenzione e Contrasto, Rome: Supplement to Rivista Marittima,

2003, 44-51. 13

Operations occurred on 6-7 May (involving about 230 migrants on 3 boats); 8 May (about 80 people rescued by a

boat belonging to the ENI Oil Company platform in front of the Libyan capital and then taken back to Tripoli by an

Italian vessel); 10 May (about 160 people rescued on the high seas and then taken back to Tripoli); 5 July (about 40

migrants rescued at 70 miles south from Lampedusa by a Guardia di Finanza vessel and a Coast Guard patrol boat

and then brought back to Tripoli); 29 July (a rubber boat with 14 persons on board rescued by a Guardia di Finanza

patrol boat migrants disembarked in Tripoli); and 30 August (boat with 75 people on board among whom 15

women and three minors intercepted south of Sicily by a Guardia di Finanza vessel and carried back to Libya). 14

See the operations conducted on 19 June (boat with 72 migrants intercepted south of Lampedusa by a Coast

Guard patrol boat; its passengers among whom women and children handed over to a Libyan vessel and taken

back to Tripoli) and 1 July (82 migrants on a rubber boat among whom 9 women and 3 minors located 30 miles

south of Lampedusa, taken on board by a Navy warship, transferred to a sea platform and then from there

embarked on a Libyan vessel). 15

See Human Rights Watch, Pushed Back, Pushed Around: Italy's Forced Return of Boat Migrants and Asylum Seekers,

Libya's Mistreatment of Migrants and Asylum Seekers, 21 September 2009, p. 37, available at

. See also Libya rescues migrants,

Times of Malta.com, 22 November 2009, available at

and ANSA,

Intercettato dai libici un barcone con trenta immigrati, 7 June 2010, available at

(all web-

pages accessed 8 June 2010). 16

The database is available at

(accessed 4 May 2010). 17

A. Fulvi, Italiani, Arrembaggio Anti-Clandestini, Quotidiano Nazionale, 25 March 2007, p. 20; A. Fulvi, Senegal, la

Marina Italiana Segue il Carico di Disperati, Quotidiano Nazionale, 26 March 2007, p. 16.

6

waters to return migrants ashore. These patrol boats fly the Libyan flag but they should in principle have a

mixed Italian-Libyan crew. According to the 2007 Protocol, the Italian personnel on board should only

perform training activities and provide technical assistance and maintenance (Article 2). However the same

document does not exclude a limited participation of Italian officers to the initial interception operations,

although it also clearly mentions that the responsibility for actions performed during (both training and

operational) activities bears upon the Libyan commanding officers (Article 1). The 2009 Protocol instead

recalls the organisation of joint maritime patrols with the same number of officers provided by both

countries. Under the latter protocol, patrolling could take place in both Italian (under the Italian

supervision), Libyan (under the Libyan supervision) and international waters (under either Italian or Libyan

supervision Article 1). According to recent statements by the Minister of Interior, however, the Italian

officers on board would play the role of mere observers.18 Such a formula (which clearly resembles a ship-

rider agreement19

) is probably aimed to avoid responsibility arising out as a consequence of actions

performed during interceptions. Training activities started in Italy (Gaeta) in early May 2009, with the

participation of 41 Libyan officers. Reportedly, at that time plans were to second Libyan liaison officers to

the Guardia di Finanza operation room in Lampedusa, to follow the Italian naval constabulary operations.

In the meantime, 10 Italian officers should be deployed to the Libyan Coast Guard base of Zuwarah. The

mission should last three years, as initially provided in the 2007 Protocol (Article 3). According to the Italian

Minister of Interior and the Guardia di Finanza General Commander, the patrol boats were meant to serve

as a part of a greater surveillance and border control system, integrated with Italian and FRONTEX assets.20

Remarkably, to date, there are not available updates on the developments of such combined operations.21

Nonetheless, the cooperation agreements with the Jamahiriya have been rather effective in curbing the

phenomenon. According to the Ministry of Interior, in 2009 it was registered a 90 percent drop in the

migration flow by sea from Libya (from 5 May to 31 December 2009 only 3,185 migrants reached Italy,

whilst in the same period of 2008, the migrants arrived from Libya were 31,281). During the first three

months of 2010 only 170 migrants landed on the Italian coasts, marking a 96 percent loss.22

Before conducting return operations at sea, in 2004-2006 Italy had financed the repatriation of thousands

of migrants from Libya to their countries of origin (5,688 individuals in 2004 alone), also funding the

construction of a camp for illegal immigrants in the north of the country (which is apparently not yet

operational). Reportedly, these re-admission operations concerned people of different nationalities and

were undertaken without any screening of the migrants status. Therefore they could possibly entail

18

Speech of the Italian Minister of Interior, Roberto Maroni, before the Italian Parliaments Schengen Committee,

14 April 2010, available at

(accessed 4 May

2010). 19

A ship-rider agreement is a (mostly bilateral) accord by which a designated law enforcement officer (i.e. the ship-

rider) embarks on a foreign military ship, being thus able to perform law enforcement operations under his/her

authority and according his/her national law. Therefore, for instance, it becomes possible for the foreign ship to

enter the territorial waters of the ship-riders sending state or to board on the high seas vessels flying the flag of

the ship-riders sending state (See on the topic M. Byers, Policing the High Seas: The Proliferation Security

Initiative, 98(3) American Journal of International Law 2004, 526-545, at 538-539). 20

M. Nestico, Immigrazione: Consegnate a Libia tre motovedette Gdf, AnsaMed, 14 May 2010, available at

(accessed 4 May 2010). 21

Official sources confirm that the first 3 patrol boats reached Zuwarah on 20 May 2009 with 6 Italian observers on

board. In the meantime, Italy deployed in Libya 10 officers for logistics. Joint patrol operations started on 25 May

2009 (Guardia di Finanza, Le Missioni Internazionali della Guardia di Finanza (1899 2009), 12 November 2009, p.

7, available at

accessed 5 May 2010). 22

Speech of the Italian Minister of Interior, supra note 18.

7

collective deportations.23

In the same period, the Jamahiriya accepted the re-admission to its territory of

about 3,000 migrants who had landed previously in Sicily (including the small Italian island of Lampedusa).24

This practice gave rise to several applications brought before the European Court of Human Rights (ECtHR)

in 2005 by a counsel of Italian lawyers on behalf of 84 migrants of different nationalities. After having

initially admitted the applications, however, in its decision of 19 January 2010 the Strasbourg Court

rejected them on different grounds.25

22 applications were withdrawn following an expert report on

handwriting concerning 57 powers of attorney (38 powers resulted in four cases they could have been

filled in and signed by the same person). Of the remaining 62 applications, 14, belonging to those who were

deported to Libya, were subsequently rejected, the Court having found that all the relevant judicial

safeguards had been granted by the Italian authorities. 12 applications referring to the migrants who

were initially held in an immigration centre and then released for expiration of the maximum time-limit for

their custody were struck out of the list,26

the defence counsel having lost any contact with the

applicants. One migrant who was living in Italy and was the only one with whom the defence counsel was

effectively still in touch at the time of the decision saw his application rejected on the merits (no

obstruction by Italian authorities which would have prevented the applicant from lodging an application

with the Court). Notably, with regard to the other 35 applicants, neither the defence counsel, nor the

Italian government could provide any relevant information, as these applicants had basically disappeared.

The Court thus decided to strike their applications out of the list similarly to what it had done with the 12

applicants who had gone into hiding. The lack of information by the Italian Government on such a broad

number of applicants (an issue, which, however, was not even raised by the Court), together with the

Courts decision of not continuing the examination of facts, irrespective of the migrants fate, have

eventually come under scholars criticism.27

Generally, the fate of migrants returned to Libya is indeed very tough. Under Libyan criminal law, having

entered and then left the country illegally, migrants taken back to the Jamahiriya are subject to fines and

23

See S. Hamood, EU-Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?, 21(1) Journal of

Refugee Studies 2008, pp. 19-42, at 33. 24

E. Paoletti, Readmission Agreements between Italy and Libya: Relations among Unequals?, in Jean-Pierre

Cassarino (ed.), Cooperating on Readmission: Implications on Euro-Mediterranean Relations and Beyond, Rome:

Istituto Affari Internazionali, 2010 (forthcoming). According to Dr Paolettis study, the number of foreign nationals

returned from Italy to Libya were 1,153 in 2004, 1,876 in 2005 and 14 in the first 3 months of 2006. 25

ECtHR, Hussun et al. v. Italy, Application Nos 10171/05, 10601/05, 11593/05 et 17165/05, 19 January 2010,

available at . Applicants claimed that, as a result of their deportation to Libya, they

would have been exposed to physical risks (alleged violation of Art. 2 - right to life and Art. 3 - prohibition of

inhuman or degrading treatment), being their readmission to Libya also in breach of the prohibition of collective

expulsion of aliens, according to the ECHR Protocol No. 4, Art. 4. In addition, they lamented a lack of an effective

remedy against the deportation orders (alleged violation of Art. 13) and maintained to have been obstructed in

their in their right to apply to the Court (alleged violation of Art. 34 - right of individual application to the Court). 26

The Court relied on Art. 37(1)(c) ECHR, according to which: The Court may at any stage of the proceedings decide

to strike an application out of its list of cases where the circumstances lead to the conclusion that for any other

reason established by the Court, it is no longer justified to continue the examination of the application. 27

See C. Favilli, Prime Riflessioni sulla Sentenza della Corte Europea dei Diritti Umani sui Respingimenti da Lampedusa

del 2005, Associazione per gli Studi Giuridici sull'Immigrazione, 25 January 2010, available at

(accessed 3 May 2010) and A. Liguori, Il caso Hussun: sui

respingimenti Italia-Libia del 2005 la Corte di Strasburgo decide di non decidere, 4(2) Diritti Umani e Diritto

Internazionale 2010, 447-452. According to Dr Favilli, the Court could pronounce on the merits, relying on the last

sentence of Art. 37(1) ECHR: the Court shall continue the examination of the application if respect for human

rights as defined in the Convention and the protocols thereto so requires. In addition, as Dr Liguori points out, the

examination of the merits could be based on the fact that the loss of contacts with the applicants is in principle

imputable to the Italian state.

martinaHighlight

8

imprisonment of up to three months,28

although they are normally held longer. According to media

information, migrants returned to the Libyan coasts following (at least) the operations of 6-7 May, 1 July

and 8 September 2009 were arrested upon their arrival and then detained in several immigration centres,

pending their repatriation.29 Apparently, the treatment received by migrants in such centres could be

considered prima facie inhuman or degrading. In July 2010, 245 migrants pushed-back to Libya an year

earlier by Italian patrol boats and detained in at Braq immigration centre under very harsh conditions

avoided deportation to Eritrea thanks to the Italian governments in extremis intervention.30

3. The Italian Position and the CPT Report

To date, the Italian government has justified the forced return of migrants at sea on the basis of different

legal arguments, including the application of both international and domestic legal instruments. Such

arguments have been raised randomly time after time, depending on the institution/organisation which

was asking for explanations. However, generally, the forced returns of migrants at sea have been labelled:

a) rescue operations of people in distress at sea; b) police operations to tackle the smuggling of migrants, as

provided by the Palermo Protocol on Smuggling of 2000 (also quoted as Second Palermo Protocol);31

or

c) mere joint patrol operations undertaken on the basis of international bilateral agreements and inspired

by the principle of international cooperation among states (as developed, for instance, with the Treaty of

Friendship and its predecessors).

These legal justifications were eventually summarised in Italys official response to the observations put

forward by the Council of Europe (CoE) Committee on the Prevention of Torture (CPT) during its mission to

Italy on 27-31 July 2009.32 It this rather patchy document the Italian government presents several and

sometimes incongruous observations, stating that: a) migrants intercepted on the high seas are not

criminal suspects; b) interventions are indeed search and rescue operations, so that migrants are not

detained on board Italian military vessels; c) migrants have been returned to Libya and Algeria upon

request of such countries (according to generic international cooperation principles), as the migrants had

escaped from Libyan and Algerian border controls; d) this practice is not in violation of relevant IMO

(International Maritime Organisation) Conventions, since the latter require member states vessels to

disembark rescued people to a place of safety, which, however, is not necessarily the closest one to the

place where people were rescued (clearly hinting at Italy or Malta); e) being rescue operations, they do not

fall under the Schengen Borders Code; therefore, the obligation to undertake a minimum check of the

migrants identity, age and country of origin, as provided in Article 7(2),33 would not apply; f) in case

28

Law Regulating Entry, Residence and Exit of Foreign Nationals to/from Libya, Law No. 1987/6, available at

(accessed 15

July 2010). 29

F. Viviano, Dalla prigione lappello dei dannati: Ci trattano come bestie, salvateci, Repubblica, 10 May 2009, p.

7; S. Liberti, Male Nostrum, Manifesto, 13 July 2010, p. 1. 30

Trovato l' accordo per i 250 eritrei detenuti in Libia, Corriere della sera, 8 July 2010, p. 22; Libya Denies

Mistreatment of Eritrean Migrants, Reuters, 8 July 2010, available at

(accessed 19 July). 31

Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention

against Transnational Organized Crime (Palermo Protocol on Smuggling), UN Doc. A/55/383, 15 November 2000

(entered into force on 28 January 2004). 32

See CPT, Response of the Italian Government to the report of the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Italy from 27 to 31 July 2009, Doc.

No. CPT/Inf (2010) 15, 28 April 2010, available at

(accessed 2 May 2010). 33

Regulation of the European Parliament and of the Council Establishing a Community Code on the Rules Governing

the Movement of Persons Across Borders (Schengen Borders Code), Regulation (EC) No. 562/2006, 15 March 2006,

OJ L 105, 13 April 2006, p. 1.

9

migrants express their will to apply for asylum or other forms of international protection, they are

promptly brought to Italy; g) there is no obligation (under both international, domestic or EU law) to

inform migrants about the possibility to ask for asylum, whereas according to EU law (i.e. in particular,

the Procedures Directive34) such an obligation would arise only following the initial request of migrants;

h) the return operations are also aimed at fighting human trafficking and organised crime; i) the use of

force by Italian officers was strictly limited to overcome the passive resistance by the irregular migrants

during the trans-bounder, from the Italian ship to the requesting States Unit by lifting them;35 j) there

have been cases of (most probably) minors (unclear whether unaccompanied or not) and at least one

pregnant woman returned to Libya.

Remarkably, the reference to the Palermo Protocol on Smuggling appears only in an attachment to the

main text (Appendix III). Here the Italian government only recalls the potential application of the Protocol

as for the power to stop and search vessels without nationality (Article 8). The Protocol, according to the

Italian authorities, would (merely) allow interception operations. Considering the paragraphs wording, it

looks like the Palermo Protocol is not considered as the real legal basis for interceptions. Indeed, it would

not suffice to say that the Protocol allows (rectius does not impede) the return of migrants to Libya in order

to deem it as the legal foundation of operations. Nor does the Protocol provide for the return of smuggled

migrants to a country of transit (such as Libya), whereas it only refers to the repatriation of migrants to

their country of origin or permanent residence (Article 18). Consequently, these rather vague international

cooperation principles become the sole legal basis for interceptions.

The bulk of the Italian responses to the CPT had been already mentioned by the Italian Minister of Interior

during a speech before the Parliament in May 2009.36 In the Italian governments opinion, the fact that

migrants returned to Libya have never requested asylum whilst on board Italian vessels would make the

operations in question compliant with the non-refoulement principle.37

Conversely, in its reply to the Italian

remarks, the CPT pointed out that the absence of an explicit request for asylum does not necessarily

absolve the Italian authorities of their non-refoulement obligations, since the returned migrants were not

34

Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee

Status, Directive (EC) No. 85, 1 December 2005, OJ L 326, 13 December 2005, p. 13. 35

Concern and criticisms for the alleged use of force by servicemen on board of an Italian warship on 1 July 2009

were initially raised by the UNHCR and the Italian NGO Consiglio Italiano per i Rifugiati, whose personnel had

interviewed the injured migrants in Tripoli (V. Polchi, LOnu Accusa lItalia: Immigrati Maltrattati, Repubblica, 15

July 2009, p. 14). 36

Informativa del Ministro dell'Interno su Questioni Connesse all'Immigrazione e Conseguente Discussione, Senate,

Hearing No. 214, 25 May 2009, available at

(accessed 5 May 2010). In a similar statement to an Italian

newspaper, a top-level officer of Ministry of Interior (who is now indicted by the Office of Public Prosecutor in

Siracusa), declared that the return operations are carried out respecting (a norma del) the Second Palermo

Protocol (L. Liverani, Sbarchi dalla Libia, 90 Per Cento in Meno, Avvenire, 15 April 2010, p. 9). 37

See e.g. the statements of Hon. Afredo Mantovano and Hon. Nitto Francesco Palma both Undersecretaries of

State for the Interior made before the Italian Parliament on 22 September and 24 November 2009, available at

; and

http://www.camera.it/resoconti/dettaglio_resoconto.asp?idSeduta=251&resoconto=stenografico&indice=alfabeti

co&tit=00070&fase=00010, respectively (accessed 5 May 2010). The possibility for migrants to ask for asylum on

board of Italian vessels was lately recalled in the responses of the Italian government to the recommendations put

forward by the Netherlands, Denmark and the Czech Republic during the UN Human Rights Councils Universal

Periodic Review of 2010 (HRC, Response of the Government of Italy to Recommendations in the Report of 11

February 2010 of the Working Group on the Universal Periodic Review, UN Doc. A/HRC/14/4/Add.1, 31 May 2010,

p. 7, available at

(accessed 16 July 2010).

10

in a position to express such a request, because of their poor physical and mental conditions.38

The

Committee also pointed out that migrants transferred onto Italian vessels [...] pending delivery, contrary to

their wishes, to the authorities of another State, must be considered as deprived of their liberty.39

Therefore, the usual judicial safeguards should apply. Basing its argument on the ECtHR first decision in the

Medvedyev case, the CPT added that, although some delay in the provision of these rights (including the

access to a lawyer and to a doctor) may be justified by the exceptional circumstances in which operations

take place, they cannot be denied to migrants.40

Italys legal justifications and the CPT remarks deserve further consideration and will be addressed in the

following sections, bearing in mind that the forced return of migrants at sea may put at risk, inter alia41

,

two very basic principles of international law, i.e. the assistance to persons in distress at sea and the

obligation of non-refoulement. At first, however, it can be noted that Italy not only did not question the

extraterritorial application of the non-refoulement rule to the forced return of migrants at sea, but it also

indirectly recognised a positive obligation to start an asylum application process on board, by bringing the

applicants on the Italian soil. Nevertheless, if Italian authorities acknowledge the application of the non-

refoulement principle on board their military ships, a fortiori, they end up accepting the extraterritorial

application of human rights law and treaties in the same circumstances.

4. Judicial Proceedings and International Criticism

4.1 The Hirsi Case

The forced return of migrants by Italian vessels has so far given rise to several judicial and quasi-judicial

actions. In particular, an application has been filed by Italian lawyers before the European Court of Human

Rights (the Hirsi case). At the time of writing (summer 2010), the Court had already started the admissibility

procedure, having submitted an information request to Italy.42

The Italian government is requested, inter

alia, to provide information on the existing links between the operations carried out on the basis of its

bilateral agreement with Libya and the activities of FRONTEX. The Hirsi case concerns the first return

operation, which occurred on 6 May 2009 approximately 35 miles south of Lampedusa. The applicants are

11 Somalis and 13 Eritreans. They argue that their forced return and stay in Libya, as well as their

subsequent repatriation to their countries of origin: a) would expose them to the risk of torture or other

38

CPT, Report to the Italian Government on the Visit to Italy Carried Out by the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009, Doc. No.

CPT/Inf (2010) 14, 28 April 2010, para. 32, available at (accessed 2 May 2010). 39

Ibid., para. 39. 40

Ibid., para. 40. See ECtHR, Medvedyev et al. v France, Application No. 3394/03, 10 July 2008, available at

. See also the case note by G. Breda and J.P. Pierini, Legal Issues Surrounding Maritime

Counterdrug Operations and the Related Question of Detention as Highlighted in the Medvedyev and Others v.

France Decision of the European Court of Human Rights, 47 (1-2) Military Law and the Law of War Review 2008,

167-198. The July 2008 decision has been recently upheld by the Grand Chambers ruling of 29 March 2010 (see

infra note 51). 41

This paper does not consider, for example, Italys obligations of under the 1989 Convention on the Rights of the

Child (UN Doc. A/RES/44/25, 12 December 1989, Annex), which integrates the non-refoulement principle (Art. 22)

with the childs best interest concept (see e.g. Art. 3). The latter obliges state authorities to consider as a

primary consideration the childs best interest in taking any administrative (such as their forced return to Libya)

or judicial action involving minors. According to this principle, the Italian legislation prohibits the deportation of

minors even if they are present on the Italian territory illegally (Law 1998/286, Art. 19) unless their parents or

accompanying persons are themselves deported. This might explain why the Italian authorities have never called

the operations in question as deportations. 42

See Hirsi et al. v. Italy, Application No. 27765/09, filed on 26 May 2009. The summary of facts is available at

(accessed 6 May 2010).

11

inhumane or degrading treatment (ECHR, Article 3); b) would amount to a form of collective deportation

lacking any legal basis (Protocol 4 to the ECHR, Article 4); and c) would have hampered their right to

challenge their deportation to Libya and their repatriation to their countries of origin before the competent

Italian authorities (right to an effective remedy, ECHR, Article 13). In March 2010 the UNHCR submitted to

the Court a written intervention as a third party in the case,43

noting that: a) neither the international

cooperation principles, nor the Palermo Protocol on Smuggling exempt states from complying with basic

human rights law obligations, such as the non-refoulement principle; b) if interceptions are border control

operations, then the Schengen Borders Code applies (including the above-mentioned minimum check

duty); c) most of returned migrants could easily be asylum seekers, since in 2008 some 75 percent of sea

arrivals in Italy applied for asylum, and 50 percent of applicants received some form of protection by Italian

authorities; d) applicants in the Hirsi case are indeed Somali and Eritrean nationals and their repatriation,

following their forced return to Libya is likely to be in breach of the principle of non-refoulement, given

the treatment expected in their home countries; e) according to Libyan criminal law, migrants returned are

detained at least up to three months (in truth more); f) there is not a national asylum system in place; g)

treaty provisions on human rights law (including the non-refoulement rule) apply extra-territorially on

board the Italian vessels, since migrants are under the effective control of Italian forces and vessels

themselves are considered as a portion of Italian territory (according to the territoire flottant principle as

embedded in Article 4 of the Italian Code of Navigation); people rescued at sea by a vessel belonging to an

EU member state in the SAR (Search and Rescue) Zone of a different EU member state (as in the case of

Italian operations carried out in the Maltese SAR Zone) must be disembarked in one of the two states

concerned. The UNHCR concludes affirming that return operations may be at variance with the principle of

non-refoulement and in contradiction to Article 3 of the ECHR.

4.2 Criminal Proceedings in Siracusa

The Strasbourg Court is not the only judicial body which is dealing with the operations in questions.

Criminal investigations by the Office of Public Prosecutor in Siracusa and Messina involving commanding

officers of Italian military vessels as well as senior police and Guardia di Finanza officers are underway.

Investigations in Messina concern the alleged death of 15 migrants occurred on 28 June 2008 during a

rescue operation conducted by an Italian Coast Guard patrol boat (which then transferred the survivors to

Malta).44

However, the only criminal proceedings which expressly relate to the forced return of migrants to

Libya is the one opened in Siracusa. The Sicilian Prosecutor recently charged a top-level police officer and a

Guardia di Finanza general with private violence,45 having ordered the forced return to Libya of 75

Somalis, among whom 15 women and three minors. Allegations originate from the interception operation

carried out on 30 August 2010 by a Guardia di Finanza patrol boat in international waters off Siracusa. The

patrol boats commanding officer was not charged, as he had obeyed to an order which was not manifestly

illegal.46

Conversely, the accused officers, abusing of their respective authorities as public officers were

43

UNHCR, Hirsi and Others v. Italy - Submission by the Office of the United Nations High Commissioner for Refugees,

March 2010, available at (accessed 6 May 2010). 44

F. Viviano, Lampedusa, giallo su un'altra strage: "Quindici morti durante un soccorso", Repubblica, 19 September

2009, available at (accessed 15 July 2010). 45

Italian Penal Code, Art. 610: Whoever, by violence or threats, compels another to do, endure, or omit to do

anything whatsoever, shall be punished by imprisonment for up to four years (translated by the author). 46

According to Art. 25(2), Military Code of Discipline (President of Republics Decree No. 1986/545), the military

who receives an order which he/she deems not compliant with the laws in force must [] report to whoever gave

it to him/her, and he/she is obliged to execute the order if it is eventually confirmed. [] [T]he military who

receive an order [] whose execution manifestly entails the commission of a crime, must refrain from executing

that order and inform his/her superiors as soon as possible (translated by the author). In this way the military

officer concerned avoids any criminal liability. In the case in question, however, it is not reported any further

12

considered to hold a violent conduct in taking back to the Libyan territory clearly contrary to their will

75 foreign nationals unidentified, unquestionably some of them were minors intercepted in

international waters on a boat coming from the Libyan coasts. The crime would have taken place in the

exact moment the migrants were lifted on board, as the patrol boat was considered a piece of Italian

territory.47

The return operation would have been undertaken clearly against international and domestic

law norms, so that migrants were prevented from having effective access to the procedures established

for the protection of refugees and, in general, from enjoying the rights acknowledged to them by migration

law. The Italian intervention would also entail a form of collective deportation, in violation of the IV

Additional Protocol to the ECHR (Article 4). Seeing as the defendants acted in the absence of any sound

legal basis, according to the Prosecutor, their conduct was indeed performed in their private capacity (this

is why they were charged with private violence), not respecting the Italian law, which, inter alia, is in line

with international agreements. Most likely in order to avoid any allegation of interference with the political

sphere, in his indictment, the Prosecutor also made clear that charges do not directly concern the so-called

return policy, and, in particular, do not deal with the legality of agreements48 with Libya as such. In sum,

allegations are grounded on the fact that, since an Italian military vessel is legally a piece of Italian territory

tout court, Italy should have granted migrants all the safeguards provided by international, European and

domestic migration law.49 In particular, according to the Procura della Repubblica, the right of migrants to

start an asylum procedure would be already provided by analogy with the ECtHR case law on the

apprehension of aliens in the extraterritorial zones of European airports.50

Conversely, it is interesting to note that to date the defendants have not questioned the designation of

military vessels as Italian territory. According to the accused, however, in order to consider the return of

migrants as deportations (thus applying all the safeguards provided by migration law, i.e. individual order,

decision of a judge, right to appellate both the decision and the order, etc.), they should have crossed the

Italian border actively. Since they were instead passively lifted on board, they would have not touched

Italian soil for the purpose of the application of domestic migration law norms. In addition, remarkably, the

interception concerned was not justified as a rescue operation, but just as an anti-immigration

intervention, legally founded on the Second Palermo Protocol and again on this rather vague duty of

cooperation among states. Therefore, according to the Italian authorities, migrants were not in distress

when they were intercepted on the high seas. In line with the official government statements, the

defendants did not challenge the possibility for migrants to ask for asylum on board, pointing out however

that there is no duty of information on this option in the absence of a specific request by the migrants

themselves.

communication between the patrol boats commanding officer and his superiors, after the commander was given

the order to return migrants to Libya. 47

Art. 4 of the Italian Navigation Code states that: the Italian vessels on the high seas [] are considered Italian

territory. See also Art. 4(2) of the Italian Criminal Code: Italian vessels and aircrafts are considered State territory

(translated by the author). 48

Quotations taken from V. Piccolillo, Immigrati Respinti dallItalia alla Libia. I Pm: E una Violenza, Corriere della

Sera, 23 April 2010, p. 27 (translated by the author). 49

The particulars of the case are gathered from a memorial attached to the indictment brought against the

defendants by the Office of Public Prosecutor in Siracusa and obtained via email. If not specified otherwise, all the

following references and quotations related to this case are taken from such a document. 50

The Prosecutor referred in particular to the Amuur case (ECtHR, Amuur v. France, Application No.

17/1995/523/609, 25 June 1996, ECHR 1996-III). The latter concerns the apprehension of four Somali citizens in

the Paris-Orlys extraterritorial zone, pending their return to Syria. See in particular para. 43: confinement,

accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to

prevent unlawful immigration while complying with their international obligations [...]. Above all, such

confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for

determining refugee status.

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Nevertheless, it looks rather clear that if the intervention is not undertaken in a rescue situation and if the

concept of Italian vessels as Italian territory is not questioned as such, it is difficult to invoke the non-

application of all relevant migration law norms. For the extraterritorial application of human rights treaty

law, it would indeed suffice to have the Italian effective control over migrants.51 It also important to note

that, notwithstanding the caveats put forward by the Prosecutor, the investigation ends up challenging the

legality of interception operations as such. The magistrates in Siracusa in fact require the Italian authorities

to carry out all the normal procedures provided by domestic migration law during interceptions, whereas

the operations concerned are conducted on the high seas just to avoid the application of the same norms.

Actually, in order to comply with the Prosecutors observations, migrants should always be brought ashore

in Italy.

4.3 Charges against the Minister of Interior

In October 2009, charges of abuse of office,52

brought against the Italian Minister of Interior by a group of

opposition MPs for having ordered the operations in question, were dropped by the Tribunal of Ministers in

Rome. According to the latter, the offence was to be excluded for the lack of specific intent. To be charged

with such a crime under Italian criminal law, the Minister should have acted with the sole intention to

cause harm to the migrants. In its order of acquittal, the Tribunal also pointed out that the forced return of

migrants at sea is a typical expression of the Government security policy and it amounts to a political act in

the strict sense which is not assessable under criminal law. Conversely, according to the Tribunal, the

ministerial provisions are aimed at contrasting effectively the criminal organisations which run and exploit

clandestine immigration.53 The Tribunal in sum separated the political legitimacy of ordering interception

operations from the legality of the way the same operations are effectively carried out.

4.4 International criticism

Interceptions also raised criticism by several international human rights bodies and NGOs.54 Having

interviewed the migrants returned to Libya, on 2 and 7 July 2009 the UNHCR sent two letters to Rome,

51

Nowadays there is a huge number of court decisions and articles supporting the effective control rationale. On

the ECHR application on board of state vessels see ECtHR (GC), Medvedyev et al. v. France, Application No.

3394/03, 29 March 2010, paras 62 and 64, available at . The same principle has been

recalled by the UNCAT in the so-called Marine I case, concerning a return operation similar to the one in question

(UNCAT, J.H.A. v. Spain, Case No. CAT/C/41/D/323/2007, 21 November 2008, para. 8.2, available at

(accessed 16 July 2010). I have investigated the issue of

the extraterritorial application of human rights treaty norms, inter alia, in M. Tondini, The "Italian Job": How to

Make International Organizations Compliant with Human Rights and Accountable for Their Violation by Targeting

Member States, in J. Wouters, E. Brems, S. Smis and P. Schmitt (eds.), Accountability of International

Organizations for Human Rights Violations, Antwerp/Oxford: Intersentia, 2010, 169-212. 52

Italian Criminal Code, Art. 323. 53

Respingimenti, archiviata la denuncia contro Maroni, Quotidiano Nazionale, 20 October 2009, available at

(accessed 16 July authors

translation). 54

See for instance Amnesty International, Libya of Tomorrow: What Hope for Human Rights?, London, 18 June

2010, p. 113, available at (accessed 16 July 2010). See also the ICJ Report of September 2009

submitted to the 7th

Session of the UN Human Rights Council Working Group on the Universal Periodic Review,

held in Geneva on 8-19 February 2010, available at (accessed 3 May 2010).

Ultimately, in June 2009, a petition by several Italian human rights watchdogs was submitted to the European

Commission, the UN Human Rights Committee, and the CoE Human Rights Commissioner (letter available at

-

accessed 16 July 2010).

14

asking for explanations on the forced return of potential asylum seekers carried out by the Italian Navy on 1

July. Interceptions have been also strongly deplored by the Council of Europe. Already in January 2009, in

view of the launch of operations, Thomas Hammarberg CoE Commissioner for Human Rights had

admonished the Italian government that any legislative or administrative measures [...] should not fail to

take into proper consideration the particular needs of people who arrive in Europe and are in need of

international protection.55

More recently, the CoE Parliamentary Assembly unanimously voted a non-

binding resolution on the obligation of member states to conclude readmission agreements only with

countries that comply with relevant human rights standards and with the 1951 Geneva Convention, that

have functioning asylum systems in place and that protect their citizens right to free movement, neither

criminalising unauthorised entry into, nor departure from, the country in question.56 The Resolution was

based on a Report submitted by the Assemblys Committee on Migration which was highly critical on the

interceptions of migrants, until the point of asking to stop the operations in question and hinting at Italys

possible violation of its duties under the 1951 Geneva Convention.57

Critical remarks against the

establishment of a human rights limbo in these operations have been also expressed by the OHCHR58.

5. The EU (Re)Action

The European Unions relationships with Libya have evolved steadily since 2002. Such evolution is a visible

sign of the EU willingness to engage in permanent rapports with the North-African country on migration

issues. Initial contacts soon took the form of an exploratory mission, sent by the Commission to Tripoli in

May 2003, followed by a technical mission in 2004. In June 2005 the Council adopted conclusions on the

initiation of an ad hoc dialogue and cooperation with the Gaddafi Government.59 In October 2007, the EU

External Relations Council emphasised the need for a framework agreement with the North-African

country. Negotiations were officially launched in November 2008 and are still underway. In October 2009

the Commission proposed the opening of an EU Office in Tripoli, with a view to further convert it into a full

delegation, and offered more financial assistance to Libya under the ENPI (European Neighbourhood and

Partnership Instrument).60

A few days later, the Council asked the Commission to intensify the dialogue

with Libya on managing migration and responding to illegal immigration, including cooperation at sea,

55

CoE, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit

to Italy on 13-15 January, Doc. No. 2009CommDH(2009)16, Strasbourg, 16 April 2009, para. 80, available at

(accessed 16 July 2010). In the wake of the first interceptions, Mr

Hammarberg expressed strong criticisms, stating that the Italian initiative totally undermines the right of any

human being to obtain asylum (Immigrati, da Fini e Consiglio d'Europa doppio avviso sui respingimenti, Corriere

della sera, 11 maggio 2009, available at

authors translation). 56

CoE Parliamentary Assembly, Readmission Agreements: a Mechanism for Returning Irregular Migrants, Resolution

No. 1741 (2010), Strasbourg, 22 June 2010, Para. 6.1, available at

(accessed 16 July 2010). 57

CoE Parliamentary Assembly, Committee on Migration, Refugees and Population, Report: Readmission

Agreements: a Mechanism for Returning Irregular Migrants - Explanatory Memorandum by Ms Strik, Rapporteur,

Doc. No. 12168, Strasbourg, 16 March 2010, Annex C, paras 51-52, available at

(accessed 16 July

2010). 58

Statement by Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights, before the Italian

Senate, Rome, 10 March 2010, available at

(accessed 16 July). 59

Hamood, supra note 23, at 23. 60

EC, Extension of the External Service: Opening of a Delegation in Iceland and an Office in Libya, Doc. No.

COM(2009) 550 final, Brussels, 14 October 2009, para. 2.2.

15

border control and readmission.61

In this framework, on 13 July 2010 the EU Commissioner for Home

Affairs Cecilia Malmstrm met with Libyan Foreign Minister while other meetings are scheduled in the near

future, including the EU-African Union Summit of 29-30 November 2010 in Sirt. Being afraid of a rather

secretive negotiation process, the European Parliament recently called on the Commission and the Council

to be "immediately and fully informed at all stages of the procedure" on the negotiations with Libya,

under Article 265 and Article 218(10) TFEU.62

On the whole, however, the EU response to the interception operations has been rather schizophrenic,

developing in a mix of criticism, behind the scene support and pragmatism. In this context, in August 2009,

the European Commission submitted an information request to Italy, focussing on the risk that among

migrants returned to Libya could be asylum seekers and thus that such measures would contravene the

non-refoulement principle.63 The former EC Vice-President Jacque Barrot went even further: in a letter sent

on 15 July 2009 to the President of the EU Parliament Committee on Civil Liberties (LIBE) he specified that,

according to the ECtHR case-law, the acts carried out on the high seas by military vessels may entail state

responsibility due to the extraterritorial application of the European Convention of Human Rights. In his

letter, he also added that the non-refoulement principle as interpreted by the ECtHR and as contained in

Articles 33(1) of the 1951 Geneva Convention64

implies that EU member states are prohibited from

returning directly or indirectly and also in the course of border control operations on the high seas a

person to a place where he could risk being tortured, or subjected to inhumane or degrading treatments,

clearly hinting at Libya. Nevertheless, Barrot also pointed out that European asylum law has a strict

territorial application, which does not include situations occurring on the high seas.65

The non-application

of European asylum law in international waters was recalled lately by Commissioner Malmstrm during her

visit to Italy in April 2010.66

However, in the course of the same visit, she was also quoted to have said the

opposite: i.e. that the right to seek asylum should be respected even when one is already at sea.67

On its

side, in June 2010 the European Parliament passed a Resolution calling on Member States that deport

migrants to Libya, in cooperation with Frontex [], to stop doing so immediately where there is a serious

risk that the person concerned would be subjected to the death penalty, torture or other inhumane or

degrading treatment or punishment.68

5.1 FRONTEX Coordinating Role of Border Control Operations at Sea

61

Council of the European Union, Presidency Conclusions of the Brussels European Council 29/30 October 2009,

Doc. No. 15265/09, Brussels, 30 October 2009, para. 40. 62

European Parliament, Resolution of 17 June 2010 on Executions in Libya, Doc. No. P7_TA-PROV(2010)0246,

Strasbourg, 17 June 2010, para. 9, available at (accessed 20 July 2010). 63

ANSAmed, Immigration: EU to Ask Italy For Explanation, Brussels, 31 August 2009, available at

(accessed 3 May 2010). 64

United Nations Convention Relating to the Status of Refugees, adopted on 28 July 1951, 189 UNTS 150, Art. 33(1):

No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his race, religion, nationality, membership

of a particular social group or political opinion. 65

See the letter written by Commissioner Barrot to the President of the European Parliament's Civil Liberties

Committee, Lopez Aguilar in L. Offeddu, La lettera allItalia: dite perch li portate a Tripoli, Corriere della Sera, 3

September 2009, p. 5; and L. Phillips, Berlusconi threatens to wreck EU summit unless commission shuts up, EU

Observer, 1 September 2009, available at (accessed 3 May 2010). 66

A. Cerretelli, Estenderemo allEuropa lAccordo Roma-Tripoli, Sole 24 Ore, 29 April 2010, p. 21. 67

ASCA, Immigrati: Malmstrom, Accordo Ue-Libia non su Modello Italia, Rome, 29 April 2010, available at

(accessed 19 July 2010). 68

European Parliament, supra note 62, para. 8.

16

The coordinating role played by FRONTEX during maritime border control operations is difficult to be

assessed. Generally, although the final goal of FRONTEX-coordinated missions at sea may be also that of

detect[ing] vessels [] and [] divert[ing] them back to their point of departure,69 the EU Agency is never

in charge of operations and the latters legal basis is normally represented by bilateral agreements signed

by participating states with the countries of departure of migrants.70

However, such agreements are often

signed only by one contributing country (see e.g. Spain in Operation Hera), so that other participating

states have to rely on specific international and domestic law norms e.g. those on rescue at sea, as well as

ship-rider agreements, in order to legally found their interventions. FRONTEX should in practice retain a

mere coordinating role. Nonetheless, precisely with regard to the FRONTEX operation in the central

Mediterranean Sea (former Operation Nautilus, now Operation Chronos originally based in Malta) a

recent study revealed profound uncertainties among contributing countries as for their powers and legal

obligations during interceptions in international waters.71

Indeed, in the past, operations in Malta have

been sometimes at the centre of disputes among participating states. For example, Operation Nautilus II

reportedly ended at the beginning of August 2007 mostly for the reluctance of Libya to take back

intercepted migrants and Maltas complaints for the asserted lack of support by other EU countries.72

In its

2009 General Report, FRONTEX itself admitted that a significant obstacle to the effectiveness of [Operation

Nautilus 2009] lays in the contrasting interpretations of the International Law of the Sea by [Member

States], and in the definition of the operational area.73 As we will see in the following sections, operational

problems mainly stem from the prior identification of the port of debarkation for intercepted/rescued

migrants. Indeed, fearing that the latter would be brought ashore on its territory, Malta eventually refused

to host a FRONTEX mission in 2010.74

Controversies on the FRONTEX role in Operation Nautilus had already broken out in September 2009, when

a Human Rights Watch (HRW)s report had accused the EU Agency to have taken active part for the first

time ever in the forced return of migrants to Libya. According to HRW, on 18 June 2009 a German

helicopter belonging to Operation Nautilus IV coordinated an Italian naval operation in international waters

which ended with the handover of migrants to the Libyan authorities.75

Following on from that, the

Agencys Executive Director, Ilkka Laitinen publicly denied that the Agency was in any way involved in the

operation in question.76 This concept was recalled by Mr Laitinen during a recent interview with the author.

According to Mr Laitinen, FRONTEX

69

FRONTEX, Longest FRONTEX Coordinated Operation HERA, the Canary Islands, News Release, Warsaw, 19

December 2006, available at (accessed 19

July 2010). 70

See e.g. the bilateral agreements by Spain with Mauritania, Senegal and Island of Cape Verde for the Operation

Hera. 71

S. Klepp, Contested Asylum System: The European Union between Refugee Protection and Border Control in the

Mediterranean Sea, 12(1) European Journal of Migration and Law 2010, 1-21, at 16-17. 72

R. Weinzierl and U. Lisson, Border Management and Human Rights: A Study of EU Law and the Law of the Sea,

Berlin: German Institute for Human Rights, December 2007, p. 24, available at

(accessed 19 July 2010). 73

Frontex General Report 2009, Warsaw, 6 May 2010, p. 43, available at (accessed

20 July 2010). 74

F. Vella and D. Lindsay, Malta to no longer host Frontex missions, Malta Independent, 26 March 2010,

(accessed 20 July 2010). 75

Human Rights Watch, Pushed Back, Pushed Around: Italy's Forced Return of Boat Migrants and Asylum Seekers,

Libya's Mistreatment of Migrants and Asylum Seekers, New York, 21 September 2009, p. 37, available at

(accessed 20 July 2010). 76

Ivan Camilleri, Frontex Patrols Code-Named Chronos Start again in April, Times of Malta, 16 January 2010,

available at (accessed 20 July 2010).

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participation in such an intervention was indeed mistakenly quoted. The helicopter [concerned] was

in fact in flight within its area of operations, which did not encompass the area where the Italian

action took place. The latter occurred outside of the FRONTEX operational area. Generally, it must be

noted that FRONTEX is never in lead of joint EU border control operations, playing a mere

coordinating role.77

Mr Laitinen also noted that the right of boat people to claim asylum or other forms of protection outside

[Member States] territorial waters is not yet acknowledged Europe-wide, whereas it is the individual

responsibility of member states to process applications of asylum seekers and to undertake rescue

operations. When a border control operation turns into a rescue operation, it falls totally on the

intervening states. These kinds of operations are not within [FRONTEX] current mandate.78

Nevertheless, FRONTEX mandate in such operations could be soon expanded. A FRONTEX Draft Regulation

has been recently presented by the European Commission to the Council.79

The Commissions proposal

provides for a co-leading role of the Agency in the implementation of joint return operations, together with

the creation of Joint Support Teams of officers made available by member states. On the one hand, the

operations should be based on an operational plan agreed upon by both the Agency and the host member

state.80

On the other hand, European officers would perform their duties subject to the authority of the

host state, so that, for instance, decisions to refuse entry shall be taken only by local border guards.81

Unsurprisingly, the Draft Regulation also states that the operational plan of joint operations at sea should

specify since the beginning the applicable jurisdiction and maritime law provisions concerning the

geographical area where the joint operation takes place.82

The Commissions proposal which builds on

the Schengen acquis also firmly posits that European standards, as well as fundamental human rights and

refugee law (including the rights of asylum seekers, and the prohibition of refoulement) apply to joint

operations.83

This means that also participating states are unambiguously bound by the same legal regime,

as they are also subject to the same operational plan. The adoption of this Draft Regulation could in

principle entail the Agencys direct accountability (shared with participating countries) for the

implementation of joint maritime operations. FRONTEXs increasing interest in this domain is also

highlighted by the part of its operational budget devolved to joint return operations at sea (55 percent in

2009).84

5.2 New Rules for FRONTEX Missions at Sea

77

Interview with General Ilkka Laitinen, FRONTEX Executive Director, FRONTEX HQ, Warsaw, 12 May 2010. Interview

held in the context of the INEX Research Project (). 78

Ibid. 79

EC, Proposal for a Regulation of the European Parliament and the Council amending Council Regulation (EC) No

2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External

Borders of the Member States of the European Union (FRONTEX), Doc. No. COM(2010) 61 final, Brussels, 24

February 2010. 80

Ibid, Draft Art. 3a. 81

Ibid, Draft Art. 3c. This provision looks similar to Art. 5(1) of RABIT (Rapid Border Intervention Teams) Regulation

(Regulation of the European Parliament and of The Council (EC) No. 863, 11 July 2007, OJ L 199, 31 July 2007, p.

30): During deployment of the teams, instructions to the teams shall be issued by the host Member State. 82

Ibid, Draft Art. 3a. 83

Ibid, Preamble; Draft Art. 1, 3b, 9; Art. 10 (amended While performing their tasks and exercising their powers

guest officers shall comply with Union law, in accordance with fundamental rights, and the national law of the host

Member State). 84

See Frontex General Report 2009, supra note 73, at 23. The available budget for sea operations in 2009 was 34.4

million. However, the Agencys Programme of Work for 2010 reports a 9.7 million drop for the same operations

(Frontex Programme of Work 2010, Warsaw, 24 February 2010, p. 11, available at

(accessed 20 July 2010)).

18

Powers and legal regime of FRONTEX joint maritime operations were further clarified in late April 2010,

with the adoption of a Council Decision amending the Schengen Borders Code.85

The Decision includes new

legally binding Rules for sea border operations coordinated by the Agency, and a number of non-binding

Guidelines for search and rescue situations and for disembarkation in the context of sea border operations

coordinated by the Agency. The document in question is the product of a complex and tortuous path

which started a few years ago and it is currently sub iudice. A number of Draft Guidelines for FRONTEX

Operations at Sea were initially produced by an informal group consisting of experts from member states,

FRONTEX, UNHCR and IOM. The Group met on five occasions between July 2007 and April 2008. Later on, a

draft Council Decision, prepared by the Commission and based on the results of the informal drafting

groups meetings, was presented to the EU Parliament Committee on Schengen Borders Code for scrutiny

and then rejected. Eventually, the Decision was re-submitted to both the Council and the Parliament on 7

December 2009.86

On 25 January 2010 the Council, with Italy and Malta abstaining, submitted the draft in

question to the European Parliament (LIBE Committee), dividing the draft guidelines into two parts i.e. the

current binding rules and non-binding guidelines. The LIBE Committee in turn opposed the document,

challenging the draft decisions legal basis and the guidelines non-binding nature. However, on 27 March

2010 the EP plenary session failed to meet the absolute majority of votes required to reject the proposal

which was then considered approved. Following on from that, the LIBE Committee asked the EP Committee

on Legal Affairs (JURI Committee) to refer the Decision to the European Court of Justice (ECJ) for excess of

power. On 23 June 2010, the JURI Committee upheld the LIBE Committees request and submitted the case

to the ECJ, which in turn opened a judicial procedure and invited the European Council to submit a

statement of defence.87

On the one hand, the Council Decision reflects the existing rules of maritime law which regulate law

enforcement operations at sea.88

On the other hand, however, it strongly recalls the application of the non-

refoulement principle and fundamental human rights to the operations, paving the way to a real obligation

of information towards intercepted migrants as for the port of disembarkation.89 The Decision also makes

clear that the special needs of vulnerable groups (children, victims of trafficking, sick persons and people

85

Council decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders

in the context of operational cooperation coordinated by the European Agency for the Management of Operational

Cooperation at the External Borders of the Member States of the European Union, Doc. No. 2010/252/EU, 26 April

2010, OJ L 111, 4 May 2010, p. 20. The Decision was considered an implementation measure of the Schengen

Borders Code (see supra note 33), taken under Art. 12(5) and Art. 33 of the same Code and in accordance with the

comitology procedure (as laid down in Art. 5a(4)(a) of Council Decision (EC) No. 1999/468, 28 June 1999, OJ L 184,

17 July 1999, p. 23). 86

Doc. No. COM(2009)658 final, 27 November 2009, available at

(accessed 3 August 2010). 87

ECJ, European Parliament v. Council of European Union, Case No. C-355/10. According to the applicant, rules and

guidelines are not to be considered as mere implementing measures under Art. 12(5) of the Schengen Borders

Code, but as specific and additional measures, which would require either the further adoption of a legislative

instrument or the amendment of the Schengen Borders Code itself. It goes without saying that in both cases the

Parliament would have the opportunity to modify the text of the document something it has never had the

chance to do so far. 88

See for instance Rule No. 2.5.2.6 (Council Decision No. 2010/252/EU, supra note 85, Annex, Part I), stating that

Pending or in the absence of authorisation of the flag State, the ship shall be surveyed at a prudent distance. No

other measures shall be taken without the express authorisation of the flag State, except those necessary to

relieve imminent danger to the lives of persons [] or those measures which derive from relevant bilateral or

multilateral agreements, or unless the ship has entered the contiguous zone. 89

Ibid., Rule 1.2: [T]he persons intercepted or rescued shall be informed in an appropriate way so that they can

express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of

non-refoulement.

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in need of international protection) have to be considered throughout all the operation.90

Although the

Decision in theory allows the handover of intercepted migrants to third countries,91

the full respect of the

above-mentioned obligations should assist in avoiding episodes of refoulement, bearing in mind that rules

and guidelines should be included in the operational plan of FRONTEX-coordinated maritime missions.92

Nonetheless, representing the outcome of a compromise among different instances, the Decision relegates

the rules on the disembarkation of migrants among the non-binding guidelines.93

The latter affirm that in

disembarking migrants, priority should be given to the country of departure, then to the country of transit

or responsible for the SAR zone concerned, and, at last, the country hosting the FRONTEX operation. In

addition, the mission coordination centre should be informed of people at risk of refoulement and transmit

this information to the competent authorities of the host state. Much of the burden is therefore placed on

the host states shoulders. Having Malta an extended SAR Zone, as well as being the natural base for any

operations in the central Mediterranean Sea, its opposition to host a mission based on the decision in

question looks rather logical.

6. Issues of Maritime Law

In order to assess the legality of interceptions, it is useful to briefly analyse the applicable legal regime of

such operations when considered as rescue missions. The principle of assistance to persons in distress at

sea is enshrined in several maritime law conventions, such as the 1982 Convention on the Law of the Sea

(UNCLOS),94

the 1974 International Convention for the Safety of Life at Sea (SOLAS),95

the 1979

International Convention on Maritime Search and Rescue (SAR),96

and the 1989 International Convention

on Salvage.97 On the one hand, these conventions reaffirm the shipmasters responsibility to render

assistance to people in distress at sea without any discrimination; on the other hand, they establish an

obligation for member states to provide for the rescue of persons in distress at sea and for an effective

communication and coordination system in their area of responsibility. In this context, it is specified that

states should provide to people in distress at sea the most appropriate assistance available.98

The SOLAS and the SAR Conventions were further amended in 2004 by introducing new rules on the

disembarkation of rescued people. In particular, articles concerning the place of safety concept were

inserted in both conventions.99 According to the International Maritime Organisation Maritime Safety

Committee (IMO MSC) Guidelines for the interpretation of the amendments to the SOLAS and SAR

Conventions,100

a place of safety is defined as a location where rescue operations are considered to

terminate. It is also a place where the survivors safety of life is no longer threatened and where their basic

human needs (such as food, shelter and medical needs) can be met. Furthermore, it is a place from which

90

Ibid., Rule 1.3. 91

Ibid., Rule 2.4(f). 92

Ibid., Art. 1. 93

Ibid., Annex, Part II, para. 2. 94

Convention on the Law of the Sea, adopted on 10 December 1982, 1833 UNTS 3, See Art. 18(2) and 98(1). 95

International Convention for the Safety of Life at Sea, adopted on 1 November 1974, 1184 UNTS 3, Ch.5, Reg.7 and

Reg. 33(1). 96

International Convention on Maritime Search and Rescue, adopted on 27 April 1979, 1403 UNTS, Annex, Ch.2, Art.

2.1.9 and 2.1.10. 97

International Convention on Salvage, adopted on 28 April 1989, IMO Doc. LEG/CONF.7/27 (1989), Art. 10. 98

SAR Convention, Annex, Ch.2, Art. 2.1.9. 99

SOLAS Convention, Ch.5, Reg. 33(1-1) and SAR Convention, Annex, Ch.2, Art. 3.1.9. 100

IMO, Guidelines on the Treatment of Persons Rescued at Sea, Resolution MSC.167(78), 20 May 2004, available at

(accessed 3 August 2010).

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transportation arrangements can be made for the survivors next or final destination.101

The responsibility

of making available a place of safety falls on the country in which SAR zone the survivors are recovered.102

However, this does not automatically imply an obligation for the intervening country to disembark the

rescued people on its own territory. Notably, although the vessel carrying out the rescue operations can be

considered a place of safety only on a temporary basis,103

a place of safety is not to be necessarily

located on land, but could be aboard a rescue unit or other suitable vessel or facility at sea, pending the

final disembarkation of survivors.104 The Guidelines specify that whilst implementing their rescue obligation

under both Conventions, member states shall respect the principle of non-refoulement. It is remarkable

that this principle has to be explicitly considered not only with regard to the rejection of rescued people at

the maritime border, but also in deciding the place of safety during rescue operations.105 The issue of a

proper place of safety to disembark people rescued at sea, in the meantime respecting the principle of

non-refoulement, has been addressed by the IMO in several other policy documents.106

The non-binding guidelines adopted by the IMO in 2009 further specify that: a) any assessment over the

status of rescued persons should be carried out after disembarkation to a place of safety; b) rescued

persons could ask for asylum on board and their requests should be examined by the competent authority;

c) the immediate basic needs of rescued persons should be taken into account in choosing the place of

disembarkation; d) the latter should be carried out swiftly; e) in case the disembarkation cannot be

arranged swiftly elsewhere, the country responsible for the SAR zone in which rescued people have been

found should disembark them in a place of safety under its control. The 2004 amendments entered into

force on 1 July 2006 and were not ratified by Malta, whose extensive SAR zone established unilaterally

overlaps those of neighbouring countries, including the territorial waters of the island of Lampedusa, and

extends until the limits of the Tunisian internal waters.107

The Maltese authorities were concerned that

such amendments could be interpreted as imposing to member states an obligation to disembark rescued

people on their territory. On several occasions, Malta has stated that rescued migrants should be instead

disembarked to the nearest port. According to the Islands government, the current legal regime should be

amended so as to include rules on the responsibility of states, whose ports are much closer to the rescue

area than the ports of the nation responsible for the SAR zone in which the rescue has taken place.108

As

observed above, discrepancies among member states on issues of human rights and refugee law, as well as

on the identification of places of safety for rescued migrants, have been a source of the delay in adopting

the long-awaited common rules for FRONTEX maritime operations. The nearest port issue has been also at

the centre of a political and diplomatic struggle between Malta and Italy in April 2009, when a Turkish

cargo vessel with 140 migrants on board who had been rescued in the Maltese SAR zone but very close to

the coast of Lampedusa was stopped for four days in international waters before handing boat people

over to the Italian authorities.109

101

Ibid, Art. 6.12. 102

Ibid., Art. 2.5. 103

Ibid., Art. 6.13. 104

Ibid., Art. 6.14. 105

Ibid., Art. 6.17. See S. Trevisanut, The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum

Protection, 12 Max Planck Yearbook of United Nations Law 2008, 205-246, at 239. 106

See e.g. MSC/Circ.896/Rev.1, 12 June 2001, Annex, Art. 5; Resolution A.920(22), A 22/Res.920, 22 January 2002,

para. 1; FAL.3/Circ.194, 22 January 2009, paras. 2.4 and 2.5. 107

Malta claims a SAR Zone of 250.000 Km, i.e. about 750 times its territory. 108

J.J. Rijpma, Building Borders: The Regulatory Framework for the Management of the External Borders of the

European Union, Leiden: Martinus Nijhoff Publishers, 2010 (forthcoming) and F. Caffio, Lemergenza immigrazione

riaccende la tensione tra Italia e Malta, Affari Internazionali, 22 April 2010, available at

(accessed 3 August 2010). 109

C. Brothers, Italy Blocks Cargo Ship Carrying Rescued Migrants, New York Times, 18 April 2009, available at