The Cassazione has ruled that migrants can refuse pushbacks to Libya, while the gip of Agrigento has dismissed the charges against Carola Rackete. The Cassazione has ruled that migrants can refuse pushbacks to Libya, while the gip of Agrigento has dismissed the charges against Carola Rackete.
Called upon to rule on an incident from 2018, the Cassazione has established that those fleeing the Libyan hell have the right to oppose their return to the country once intercepted on the high seas. At roughly the same time, the gip of Agrigento ruled that commander Carola Rackete did not violate national or international maritime law in the 2019 rescue incident, which ended with a collision in port with a Guardia di Finanza patrol vessel.
These are two rulings that are, in their own way, revolutionary — the ones with which Italian judges have opened a breach in Italy's policy of migrant pushbacks and closed ports. Repudiating a long season of accusations and political exploitation carried forward by a section of Italian politics rooted in sovereigntism.
On 29 June 2019, the commander of the Sea Watch 3, a non-governmental vessel engaged in patrolling the Mediterranean Sea and rescuing migrants, was arrested. The accusation was that, despite the Italian government's ban on entering its territorial waters to disembark several dozen people rescued in the Sicilian Channel, Carola Rackete had broken through the blockade by entering the port of Lampedusa, where there had also been a minor collision with a Guardia di Finanza patrol vessel.
"Pirate, criminal, little show-off" was how the then interior minister, Matteo Salvini, described the commander of the Sea Watch 3. Epithets that also cost him a defamation complaint filed with the Procura di Rome, but which did not curb the Lega leader's relentless hostility towards Rackete, which has continued to this day. Until, however, the gip of Agrigento decided once and for all that the commander cannot be held guilty in connection with the well-known 2019 incident.
"Carola Rackete acted in fulfilment of the duty of rescue provided for by national and international maritime law," writes Judge Micaela Raimondo about her decision to enter Italian territorial waters to disembark around fifty migrants despite the Italian state's blockade. This ruling adds to the one from the spring, when the same Sicilian court established that even during the chaotic events at the port of Lampedusa there had been no violation of national law, thereby ordering the dismissal of the charges against the commander of resisting a public official and violence against a naval vessel.
On 10 July 2018, around sixty migrants were rescued in the Mediterranean Sea by the merchant vessel Vos Thalassa. It was still the years of Matteo Salvini at the helm of the Interior Ministry, a time when access to Italian ports for vessels carrying migrants was very difficult if not impossible. On that occasion too, the Viminale banned the ship from entering Italian territorial waters, ordering it to return the rescued persons to Libya.
There were hours of tension and a kind of revolt on the open sea, with a group of migrants protesting against the continuation of the voyage so that the merchant vessel would not return to the place they had fled. Two of these people were put on trial on several charges, including aiding illegal immigration and resisting a public official. This while Minister Salvini was calling them "hijackers" and "saboteurs". A view upheld by the Corte d'appello di Palermo, which in 2020 sentenced them to three years and six months in prison and a fine of 52,000 euros. But which has now been overturned by the Corte di Cassazione.
The judges recognised that certain norms relating to human rights do not fall under national but under international law, and among these is the right to non-refoulement for persons who would otherwise see their physical and psychological safety put at risk. It is not, in other words, Italy's prerogative to decide whether a migrant may be returned to a country; what is decisive in this regard are the individual's history and that of the country of return itself. If the pushback could cause risks for the person, their opposition to it falls within the scope of self-defence, according to the judges.
The judge who dismissed the charges against Carola Rackete writes that "the port of Tripoli could not be considered a safe place", describing Libya as a place where "thousands of asylum seekers, refugees and migrants are living in conditions of arbitrary detention and are subjected to torture". A judicial recognition that the country is not a safe port, as non-governmental organisations working at sea and a great many international reports, drawn up also by the United Nations, have been emphasising for years.
The judges of the Corte di Cassazione said much the same in the case of the two migrants who in 2018 had opposed their return, making explicit reference to the problems posed by the Libyan state for migrants' safety. "Rescue operations at sea that end with the return of survivors to Libya violate the right of rescued persons to be taken to a safe place where their lives are no longer threatened and respect for their fundamental rights is guaranteed," the defence lawyers commented on the sidelines of the ruling.
In both the Rackete case and this latest one, then, the judges have established a very important principle — namely, that Libya cannot be considered a safe port and that bringing migrants to safety on Italian territory, even without the latter's consent, is not to be regarded as a crime. A rule that repudiates several years of sovereigntist communication and policies pursued in Italy, and serves as a reminder that solidarity cannot be put on trial, given that international law protects it, whatever the approach of individual nation states on the matter.
