An opinion piece by Massimo Frigo, ICJ’s Senior Legal Adviser for Europe and Central Asia. This Op-ed was first published in the EU Observer.
Since he became Minister of Interior, Matteo Salvini has repeatedly vowed to close Italian harbours to migrants, including refugees, and NGOs, making it the central objective of his migration policy.
The latest attempt has been the issuance by the Government of a Law Decree called “Security Decree bis”. converted into law at the beginning of August by Parliament.
The Decree gives exceedingly wide power to the Minister of Interior “to restrict or prohibit the entry, transit or stop of any vessel in the territorial sea”.
The restriction or denial order may be issued for “reasons of public order and security or when the conditions arise under article 19.2.g of the UN Convention on the Law of the Sea.” Article 19.2 is about lack of respect of national immigration laws.
The same Decree affirms that the vessel’s captain must observe international law and the prohibition of entry, if ordered, by the Minister of Interior.
In case of breach of the prohibition of entry, the captain and the owner of the boat are sanctioned with an administrative fine between 150.000 and 1.000.000 EUR and the seizure of the boat.
As is evident from its express wording, the Decree itself recognizes that its terms are conditioned by the requirements international law. This limitation was highlighted as well by the President of the Republic, Sergio Mattarella, in his message accompanying the promulgation of the law that reinforced the duty of rescue upon any boat’s captain under the UN Convention on the Law of the Sea.
This was also a mandatory condition, since article 117 of the Italian Constitutions holds that the laws must respect “the constraints deriving from EU legislation and international obligations”.
The law strikes back
It is for this reason that, since the promulgation of the Law Decree and its approval by Parliament, judicial decisions have hampered the purported aim of the Decree to close the Italian harbours.
The Judge of Preliminary Investigations of Agrigento, who, on 2 July, ordered the release from detention of Captain Carola Rackete of the Sea Watch 3, did so because she considered that her entry in breach of the prohibition under the Security Decree bis could not be unlawful, since it was done during a rescue operation, that is an obligation under international law.
A similar reasoning was followed, by the Administrative Tribunal of the Lazio Region, which on 14 August issued an injunction to the Government to let the boat Open Arms to enter Italian territorial waters so as to allow immediate assistance to persons in need.
According to media accounts, the Juvenile Court of Palermo has similarly questioned the Government on the situation of the several children aboard the Open Arms defining the situation of the boat as that of a push-back by Italian authorities.
The Open Arms is still at large and hosts more than 130 people, including a number of children. The ICJ and several other organizations have called on Italy and Malta to allow for the disembarkment of the passengers of the Open Arms for the last days.
The attacks on the Rule of Law
Matteo Salvini, who, in the meantime, has withdrawn his support for the Government – while remaining in charge as Minister of Interior – and called for new elections in the next autumn, has relentlessly attacked the judges and the judiciary in general for issuing “political decisions” in opposition to the “will of the Italian people” and of not respecting the law.
He has often called for a reform of the judiciary whenever an unfavourable decision has been issued.
More recently, he openly challenged the order of the Administrative Tribunal of Lazio by attempting to issue a new decree of prohibition of access to Italian waters for the Open Arms.
This move was blocked by the refusal of countersigning the order by the Minister of Defence and the Minister of Transports and Infrastructures.
However, it did not stop Salvini from openly criticizing the ruling of the Tribunal and hinting that there is a “plan to come back and open Italian harbours to make Italy be again the reception centre of Europe.”
These attacks by Matteo Salvini have been by UN independent experts, including the UN Special Rapporteur on Judges and Lawyers and by the International Commission of Jurists (ICJ) that emphasized that fundamental principles regarding the independence of the judiciary forbid such inappropriate interference with judicial process by the executive.
What is really at stake?
So, what is at stake in the cases of Sea Watch 3, Open Arms, and more generally in the role of courts?
It is not only the immigration policy of Italy or the EU, or the protection of migrants, including refugees, in extremely vulnerable and often life-threatening conditions that are stake.
It is the respect and protection of the Rule of Law, in particular of the independence of the judiciary and of the separation of powers that are at stake.
The attacks to Italian judges and the judiciary by Minister Salvini concern every person because an independent judiciary is an essential guarantee for the respect, protection and fulfilment of the human rights of everyone, and once it is undermined it is undermined for everyone.
In the cases noted above, the judges have done nothing more than reaffirm basic legal rules and principles.
And, thankfully, this means that thousands of people that find themselves wretched in dangerous conditions may be protected from abuse and, in many cases, death, because they have rights under international law as any other human being.
And this is what is the duty of judges and the Rule of Law to uphold.NewsOp-eds