“Vos Thalassa” Case: The Italian Supreme Court annuls the conviction judgment and recognizes self – defense for migrants entering the Italian territory
The Supreme Court of Cassation returns to the sensitive issue concerning the contents and limits of the obligation to rescue people in distress at sea with particular reference to the notion of “place of safety”, to the principle of non-refoulement as well as, in general, the principle of sovereignty and security of States.
The case involved the request for the indictment of two migrants who, together with others, had been rescued in July 2019 by the Italian-flagged towing vessel “Vos Thalassa” in the Libyan SAR zone. The Italian vessel, following contacts with the Libyan Coast Guard, had received orders to head to the African coast to trans-ship the migrants onto a Libyan patrol boat. The defendants reacted by encircling and threatening the lives of two crew members of the “Vos Thalassa.” Such conduct forced the captain of the tow vessel to reverse course, heading toward the Italian coast, where the military ship “Diciotti” intervened, transporting the migrants to Trapani. In this way, the defendants allegedly carried out acts aimed at illegally procuring the entry into the territory of the Italian state for migrants of various nationalities.
The Court of Trapani, in the abbreviated proceedings, held that the conduct ascribed to the defendants could not be punished. The Courts of first instance indeed recognized the existence of the exemption of self-defense under Article 52 of the Italian Criminal Code on the assumption that they had acted to protect their right not to be sent back to Libya, where they would have been exposed to the serious danger of violence and inhuman or degrading treatment.
The Palermo Court of Appeal overturned the outcome of the first instance, charging the defendants with the crimes of aggravated violence or threat to public officials and resisting a public official, as well as with the crime of aggravated aiding and abetting illegal immigration.
The Supreme Court annulled the judgment of the Court of Appeal, affirming that “the conduct of resisting a public official by a migrant who, having been rescued on the high seas, asserts the right of non-refoulment to an unsafe place and resists being returned to the Libyan state, is not punishable.”
The Court first recalls that the obligation to rescue at sea is provided for in a generally recognized rule of customary international law, which is in force in the Italian legal system pursuant to Art. 10(1) of the Constitution. The said obligation finds further expression in Article 98 of the 1982 Montego Bay Convention, in the SOLAS Convention for the Safety of Life at Sea (with Annex -safety of Life at Sea – SOLAS-) and in the International Convention on Maritime Search and Rescue (with Annex – Search and Rescue – SAR) to which Libya has also been a party since 2005 with the establishment in 2018 of a SAR zone. As per the latter Convention, the rescue operation can be considered completed when the shipwrecked person has been disembarked in a “place of safety.”
Moreover, according to the Court, the expression “place of safety”, used in the SOLAS and SAR Conventions is to be understood as stated in the IMO Guidelines on the treatment of persons rescued at sea, as ” a location where rescue operations are considered to terminate […]where the survivors’ safety of life is no longer threatened and where their basic human needs[…] can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination.” It follows that, until the persons rescued at sea have been disembarked, the rescue ship can also be considered a place of safety.
The central issue is therefore that of the right of non-refoulement. Such right, expressly recognized by the 1951 Geneva Convention Relating to the Status of Refugees, as well as considered by the UN High Commissioner for Refugees (UNCHR) as ” a cardinal protection principle enshrined in the Convention, to which no reservations are permitted […],” must today be considered a principle of customary international law, functional to prevent any refoulement to a Country where the life or freedom are at risk.
Complementary to the said right is the prohibition of refoulment to an unsafe place, explicitly provided for in numerous international sources subsequent to the Geneva Convention, as well as stated by the European Court of Human Rights. This prohibition, the Court continues, recalling a ruling of the Strasbourg Court dating back to 2012 (the Hirsi judgment), also operates in relation to refoulement operations on the high seas, being extendable also to extraterritorial areas where the flag state exercises its jurisdiction.
It follows that the conduct of anyone who opposes, even by force, refoulement to a country, such as Libya, that cannot be considered a “place of safety”, is not punishable.