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Libya is not a Safe Harbour - Italian Supreme Court's recent ruling confirms what NGOs and international organizations have been saying for years

UpRights and StraLi have partnered on a communication to the International Criminal Court for war crimes against migrants in Libya and, more recently, with a report shedding light on the serious human rights violations aggravated by the Memorandum of Understanding signed between Italy and Libya.

UpRights and StraLi welcome the recent ruling of the Italian Court of Cassation (Judgment No. 4557 of Feb. 1, 2024, Fifth Criminal Section). The Court of Cassation's decision upholds the conviction of the captain of the Italian-flagged tugboat Asso 28, which, in July 2018, intercepted 101 migrants near an oil platform in Libyan Search and Rescue zones and handed them over to the so-called Libyan Coast Guard, facilitating their return to Libya.

The landmark ruling considers the appeal of the commander of the tugboat Ace 28 as unfounded and bases the decision on "the high risk [that] the migrants [might be] subjected to inhuman and degrading treatment in the detention centers [...] in Libyan territory, with the impossibility of seeing their fundamental rights protected". The Court of Cassation, therefore, declares in no uncertain terms that Libya is not a safe harbor.

Moreover, the Court of Cassation also saw in the conduct of the captain of the boat Asso 28 the elements of collective pushback, which is prohibited by the European Convention on Human Rights (ECHR), because in the act of handing over people to the Libyan authorities he failed to identify them, to obtain information about their origin and nationality, their health conditions, and to ascertain their willingness to seek asylum, among others (also recalling a landmark ruling of the EDU Court, Hirsi Jamaa and others v. Italy, 2012). In addition, the Court found a violation of the so-called principle of non-refoulement (or non-rejection), which prohibits Italy from returning individuals to countries where there is a risk that they will be subjected to inhuman and degrading treatment, and thus in the case at hand-to Libya.

In light of the Court's ruling and their established partnership, UpRights and StraLi call on Italy to comply with international human rights standards and end its complicity with violations of migrants' rights.

On Feb. 2, 2024, StraLi and UpRights published the report "Navigating Troubled Waters: Italy's Human Rights Dilemma in the Mediterranean," which underlines the serious human rights violations resulting from Italy's cooperation with Libya and, how the Memorandum of Understanding between Italy and Libya situates Italy in violation of its international human rights obligations.

The report reiterates the urgent need for Italy to reformulate its approach to international cooperation in the area of migration. In response to the most recent developments, UpRights and StraLi reiterate their call for a reconsideration of Italy's cooperation strategy with Libya, proposing two options to ensure compliance with international law obligations:

Amending the Memorandum of understanding by introducing a clause specifying that respect for human rights and international humanitarian law is essential. This clause should establish an independent body to monitor compliance, a list of mitigation measures for human rights violations, and a legal framework for effective access to justice.

Termination or suspension of the Memorandum if amendments consistent with principles of international law cannot be introduced. Violations by Libyan authorities could justify such actions under Article 60 of the Vienna Convention on the Law of Treaties.

StraLi and UpRights also collaborated on a Communication to the International Criminal Court, under Article 15 of the Court's Statute, to initiate an investigation into the international crimes committed by Libyan armed groups against migrant persons intercepted at sea and brought back to Libya, and the potential responsibilities of Italian and Maltese authorities with respect to these crimes.


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