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Refoulement As A Crime: Insights from the Asso28 Push-Back Case

Written by
Stefano Zirulia, University of Milan, via Verfassungsblog
Date of Publication:

Last month, the Italian Court of Cassation upheld the (suspended) sentence of one year's imprisonment of the shipmaster of the Italian ship Asso28. He was convicted of two offences of abandonment for returning and handing around 100 migrants over to the personnel of a Libyan patrol boat, including some unaccompanied minors and pregnant women, whom he had previously rescued in international waters within the Libyan SAR zone. The case constitutes the first time an individual was held criminally responsible for failing to fulfil the duty of non-refoulement. Although there is no specific offence in the Italian legal system that penalizes the violation of the principle of non-refoulement, the Court of Cassation held that its violation may constitute the criminal offences of abandonment provided for by the Penal Code (Article 591) and the Code of Navigation (Article 1155). As a result, the principle of non-refoulement has acquired a novel role in the criminal law context. Until recently, it was taken into account just in order to exclude the liability of shipmasters who had complied with it, whenever they were accused of facilitating irregular immigration. Now, a new and even more far-reaching function of the principle seems to be emerging, namely that of grounding the criminal liability of those who violate it.

Another Day, Another Pushback to Libya

The Asso28 was a supply vessel to the offshore oil plant Sabratha. On 30 July 2018, its captain rescued a hundred migrants found in distress on board a rubber dinghy in international waters and in the Libyan SAR zone. The operation was carried out in agreement with the oil plant's personnel as well as a Libyan customer office who was on duty at the platform and allowed to board the Asso28 without being previously fully identified by the shipmaster. This was in violation of the International Ship and Port Facility Security Code (ISPS Code). Immediately afterwards, the shipmaster set course for the port of Tripoli, where the shipwrecked people were handed over to a Libyan patrol boat. The competent Libyan and Italian Rescue and Coordination Centers were contacted only when the rescuing vessel was already heading towards Libya, in violation of the amended SOLAS Convention (Ch. 5, Regulation 33) and the IMO Guidelines on the Treatment of Persons Rescued At Sea (n. 5).

Two Offences of Abandonment

The shipmaster was convicted on two counts criminalizing the abandonment of people in situations of danger.

Article 591 of the Italian penal code punishes the person who, having in custody a person under fourteen years of age, or someone otherwise incapable of providing for him/herself, abandons that person in a situation of danger. According to the Italian courts, all these elements existed in the present case: i) the shipmaster had a duty of care (Garantenstellung) for the life and physical safety of all passengers, and was therefore considered entrusted with their custody; ii) on board the Asso28 there were minors under fourteen years of age and pregnant women, the latter being a condition which, according to the Courts, results in a reduced ability to escape a dangerous situation; iii) the passengers were exposed to danger to their life and physical integrity, given that irregular migrants in Libya are systematically exposed to the risk of suffering inhuman and degrading treatment, violence of all kinds, and even being killed.

Article 1155 of the navigation code, for its part, punishes the abandonment of any person, even if not a vulnerable one, as long as it qualifies as "arbitrary". The surrender of the migrants to the Libyans was judged "arbitrary" by the courts as it was in breach of the duties incumbent on the shipmaster. This included the duty to inform without delay the competent coordination centers, provided for in the SOLAS Convention and the IMO Guidelines on the Treatment of Persons Rescued at Sea, and the prohibition of refoulement, found both in international and European human rights law and in Article 19 of Italy's Consolidated Immigration Act.

For both the offences of abandonment the Courts found that the shipmaster acted under conditional intent (dolus eventualis), as he was aware of the possible side-effects of his actions and decided to act nonetheless, thus accepting their occurrence. According to the Court, the shipmaster was aware that the Libyan territory is unsafe for irregular aliens given that Libya is not a signatory State to the Geneva Convention on Refugees and in light of multiple reports of international institutions and organisations quoted by the ECHR in the Hirsi judgment (§§ 35-42).

The Court of Cassation also rejected the shipmaster's invocation of the justification of the fulfilment of a lawful order, provided for in Article 51 of the Italian Criminal Code. It did not consider the communications with the Libyan custom officer on duty at the oil plant sources of legitimate orders. Instead, it reasoned that only if the order had been issued by a rescue coordination center could it have justified the shipmaster's conduct. This conclusion is questionable, however. After all, an order to disembark undocumented migrants in Libya would be incompatible with the legal duty to disembark rescued people in a place of safety. As such, it cannot be a "lawful order", for the purpose of grounding the justification of the fulfilment of a lawful order. On the contrary, such an order could well extend the criminal responsibility to the issuing officer, as an accomplice in the realization of the same offences of abandonment of people.

The Issue of Italian Jurisdiction: Just an Obiter Dictum?

The Court also relied on the ECtHR's Hirsi judgment regarding the issue of Italian jurisdiction for the search and rescue operation carried out by the shipmaster. It held that the shipmaster of a private ship, when fulfilling the obligation to rescue persons found in distress in international waters, acts as an agent of the Italian State. It follows that insofar as the shipmaster exercises control and authority over the shipwrecked persons, the extraterritorial jurisdiction of the State is extended to these individuals within the meaning of Article 1 ECHR, with the consequent obligation to act in compliance with the fundamental rights and freedoms laid down by the ECHR, including the prohibition of collective expulsions.

This reasoning is curious because the problem of jurisdiction under Article 1 of the ECHR concerns the possible international responsibility of the State for violation or failure to protect fundamental rights (see De Vittor, Starita 2019). However, in this case the different problem of the criminal responsibility of the individual was at stake. For this purpose, the fact that the boat was flying the Italian flag was sufficient, given the principle of the territoire flottant, which has been transposed by Article 4 of the Italian Criminal Code. The Court's reasoning was thus possibly motivated by a desire to reinforce its prior argument that the surrender of the migrants to the Libyans was "arbitrary" to the extent it was incompatible with the ECHR. By affirming the applicability of the ECHR's prohibitions of refoulement and collective expulsion, as determined in Hirsi, the Court of Cassation intended to provide the normative benchmarks in the light of which the abandonment of migrants to the Libyan coastguard could be qualified as "arbitrary", and therefore criminally relevant under Article 1155 of the Italian Navigation Code.

The Increasing Relevance of Non-Refoulement in Criminal Law Cases

The Asso28 judgement is noteworthy not because it has reaffirmed – yet again – that Libya is not a safe port for undocumented migrants rescued in the Mediterranean Sea; and that therefore their return to that country constitutes a violation of the prohibition of refoulement. Indeed, these findings and conclusions should by now be obvious on the basis of several reports by independent and institutional observers, including the United Nations (Report 2018, Report 2022, Report 2023). Rather, what makes the Asso28 judgment a novelty in the landscape of the case-law on borders and criminal law is the relevance that it assigns, for the first time, to the violation of the non-refoulement principle.

So far, the non-refoulement principle has served as a justification for committing offences against the State. For example, in the well-known Rackete case, the liability of the shipmaster of the Sea Watch 3 ship for the crimes of facilitating irregular immigration and resisting a public official was excluded because her forced entry into the port of Lampedusa, in breach of the Italian coast guard's order, was part of her duty to rescue people found in distress at sea. Subsequently, in the Vos-Thalassa case, responsibility for the same offences was excluded for the migrants who had aggressively opposed the captain's decision to take them back to Libya, holding that their conduct constituted self-defense (of themselves and other shipwrecked persons) against the danger of being unjustly pushed-back.

What Rackete and Vos-Thalassa have in common is that compliance with the principle of non-refoulement justified the shipmaster and the migrants, respectively, who would otherwise have been convicted for the mentioned offences against the State. By contrast, in the Asso28 case, the established violation of the principle of non-refoulement formed the basis of a criminal conviction for offences against persons for the first time. This change of perspective is particularly significant because it is accompanied by a revolution in the function of the criminal law: instead of being wielded as an instrument to fight against those who are (wrongly) considered as threats to border integrity, it once again stands, in a manner more in keeping with its traditional vocation, as an instrument for the protection of fundamental rights such as the right to life, physical integrity and personal liberty.

Returning Criminal Law to its Point and Purpose?

So far, "Crimmigration", i.e. the merge of immigration law and criminal law, has been one of the realms of so-called artificial crimes (or mala quia prohibita, opposed to mala in se). By this, I mean crimes that do not have a natural dimension (such as, for example, homicide and personal injury), but are the exclusive result of a legislative creation, which punishes administrative violations with criminal sanctions. This instrumentalization of criminal law has been the subject of much criticism, not only for its negative humanitarian impact, but also for its ineffectiveness, given that the threat of a criminal sanction has practically no deterrent effect on irregular flows and smuggling networks. Conversely, sanctioning the violation of the prohibition of refoulement has nothing artificial about it. Rather, it is an instrument to crack down on conduct that endangers people's highest-ranking fundamental rights which are those typically protected by the criminal law, and therefore it resembles more mala in se. Put another way, criminalizing refoulement means sanctioning a category of conduct which generally results in extremely harmful events such as deaths, bodily injury, sexual violence, and the deprivation of personal liberty.

Thinking Beyond Asso28

Admittedly, the criminal law response provided by the Italian legal order in the Asso28 case does not look entirely satisfactory, as the defendant was sentenced to a prison sentence so low as to be compatible with its suspension. The sentence would have been significantly higher (and not eligible for suspension) if the aggravating circumstances provided for in paragraph three of both abandonment offences had been applicable. However, such circumstances apply only when, as an unintended result of the abandonment, the victim dies or sustains injuries. There was not sufficient evidence to establish this, not least because of the failure of the shipmaster himself to identify the migrants.

Going forward, the option of criminalizing, by means of a specific new offence, the intentional violation of the prohibition of refoulement, should be considered. Given the high rank of the fundamental rights protected by the prohibition (life, physical integrity, asylum etc.), the provision of criminal sanctions against those who intentionally act in breach of it looks in full accordance with the principle of ultima ratio. Such a proposal obviously requires further investigation, bearing in mind that the introduction of an offence of "intentional refoulement" is unlikely to be on the criminal policy agenda of the EU Member States in the coming years.