The effects of the Piantedosi Decree on rescue at sea

There are numerous rescue ships operating in the Mediterranean, however not enough to deal with the number of people in danger along one of the most dangerous migratory routes in the world.After the termination of the Mare Nostrum program in 2014, the Civil Fleet, the civilian fleet of monitoring and rescue ships active in the Mediterranean, has become practically the only resource for those risking their lives during the dangerous illegal crossing.

The stretch of sea that extends from Libya or Tunisia to Italy represents a lethal physical barrier, especially for makeshift wooden or rubber boats, often recycled several times by traffickers.Until 2014, the Mare Nostrum operation, started in 2013 in response to the increase in shipwrecks in the Sicilian channel, it had a double mission:guarantee rescue at sea and criminally prosecute those who profit from the illegal trafficking of migrants.Shortly after the end of Mare Nostrum, replaced by Triton in 2014 - a European rather than just an Italian initiative - sea rescue was excluded from the objectives of the operation, which focused only on border control through the European borders, Frontex.

Comparing the numbers of the two initiatives, emerges a significant change in terms of resources (from approximately 9.5 to 2.9 million euros per month) and approach.Rescue is no longer a priority, as communicated by former minister Alfano during a press conference on October 31, 2014, when he declared that 'Triton' “will not go beyond 30 nautical miles from the Italian coast, unlike 'Mare Nostrum', as it focuses only on maritime border surveillance.”

From that moment, in 2015, beyond the 30 nautical mile line, the rescue ships of the civil fleet began to operate in place of state authorities and successive governments began a process of criminalization that was first communicative and then regulatory. of rescue at sea.The last stage of this journey, which began years ago, was the issuing of the Piantedosi decree in 2023.

Prevent the operation of ships with decree-laws 

Reducing landings has become one of the recurring objectives of recent policies. In the Salvini-bis decree of 2019, it was established that the Home Office "may restrict or prohibit the entry, transit or stationing of ships in the territorial sea" - a right enjoyed by every state under the 1982 Montego Bay Convention on the Law of sea ​​– and that “in case of violation of these restrictions, an administrative sanction ranging from 150,000 to 1,000,000 euros is applied to the commander of the vessel.”

The implementation of this decree in the policies of the time resulted in the so-called “closed ports” strategy, causing long waiting times for rescue ships with castaways on board and attracting considerable media attention - as in the case of Carola Rackete, commander of the Sea Watch - and often resulting in rulings in favor of rescue.However, the policy of closed ports as an obstacle to rescue at sea has proven ineffective especially because domestic judges have always affirmed the legitimacy of the behavior of the commanders of ships operating in accordance with international maritime conventions.

The introduction of Piantedosi decree, therefore, of an afflictive or punitive nature, has managed to hinder such actions and effectively apply sanctions to ships.

According to some reports published by humanitarian organizations in 2023 (MSF Impact Report 2023, pp.16-17, And SOS Humanity), rescue operations are hindered not only through administrative detentions but also through the assignment of very distant ports for disembarkation. In an interactive map created by SOS Humanity, the ports that have been assigned to the ship in 2023 are shown and the number of km and days of delay that the assignment of a distant port can cause is calculated.This method of assignment, again according to the ships, is also one of the strategies most used by the government to prevent their operation.In 2023 alone, SOS Humanity traveled 150,538 extra km due to the assignment of ports such as Ancona or Massa Carrara.

In addition, from a regulatory point of view, the Piantedosi decree intervened by introducing new administrative sanctions that the Prefect can impose on rescue ships and by providing specific conduct to which the ships should adapt.

The Piantedosi decree of 2023 introduced a significant change from the point of view of sanctions, providing that the behavior of ships allegedly not compliant with what is imposed by the decree itself is sanctioned with administrative sanctions decided by the Prefect of the place of disembarkation.The option for administrative sanctions has been one of the main obstacles to the operation of ships to date.Unlike criminal sanctions and ship seizures imposed as a precautionary measure in criminal proceedings for aiding and abetting irregular immigration and other related crimes, which must be validated by a judge under penalty of forfeiture, administrative sanctions do not require validation judicial and remain valid until canceled or suspended following an appeal..Appeal times are longer and administrative detentions physically block ships for the entire duration of the detention, compromising their actions and causing significant economic damage.

In this regard, Francesca de Vittor, researcher in international law at the Catholic University of the Sacred Heart, explains to Blue suitcase: 

“The modification made by the Piantedosi decree, imposing a series of behaviors that ships flying a foreign flag should observe on the high seas, and administratively sanctioning compliance with these rules is internationally illicit because it is in conflict with the principle of the exclusive jurisdiction of the flag state over ships on the high seas and therefore more generally on freedom of navigation.Rescue at sea is imposed on the commander by international law, and the commander must carry it out in such a way as to guarantee maximum effectiveness of the rescue itself and therefore the protection of life at sea.When the captains of the ships that brought the rescued people to Italian ports were accused of crimes, for example for not having respected the entry ban, the judges immediately considered that their behavior was justified by the state of necessity and the fulfillment of the duty to rescue, not validating any detentions of ships connected to those proceedings.

The administrative sanction works differently;is imposed and whoever is sanctioned appeals for the annulment of that sanction or for the suspension of that sanction and therefore the times are lengthened.Recently, when appealed for the annulment of the sanctions, both the Courts of Brindisi and Ragusa have already preliminarily suspended the measures for the arrest of the ships, the fact remains that the times of these judgements, even if accelerated, are still long and the release from seizure occurs after several days of detention, sometimes when the twenty days have already ended or almost.The Court of Brindisi is also evaluating whether to raise the question of the constitutional legitimacy of the decree, among other things precisely because it is contrary to international obligations".

As regards the conducts imposed on ships, which the Piantedosi decree establishes conditions for, specifically, if violated, they entail administrative fines and detention.These generic conditions do not actually describe a specific code and are based on the behaviors regulated in international conventions.One of the points of the code of conduct that are creating problems for ship operations is point f:

“The ship's search and rescue methods at sea did not contribute to creating dangerous situations on board or prevented it from promptly reaching the port of disembarkation.In the event that even just one of these conditions is not considered satisfied, a ministerial directive limiting transit and/or stopping in Italian territorial waters may be issued".

The text itself, therefore, does not present any problematic elements other than its excessively generic writing which, according to some lawyers, violates the principles of specificity of behavior and legality that a law should have.That is, it is normally expected that the criminal law determines in detail and clearly the criminal cases and penalties, so as not to leave room for doubt to the interpreter nor to leave him free scope to apply arbitrary rules or sanctions of his own invention to the offender.If a law decree varies greatly in its interpretation, there is probably a problem of specificity in this.

The government's conduct on sea rescues is inhumane.Even according to international law

In fact, suffice it to say that of the ships subjected to sanctions in March 2024, two ships, the Sea Watch 5 and Humanity 1, has been suspended administrative detention by the courts of Ragusa and Crotone respectively, Sea Eye 4 is awaiting the result while Geobarents' appeal was rejected by the court of Massa.

The four ships placed under administrative detention in March, Sea Watch 5, Sea-eEye 4, Humanity 1 and Geobarents, were sanctioned for breaking the same clause - obstructing the operations of the Libyan coast guard, creating a situation of " danger".

Sea Eye, one of the ships sanctioned last March (to which the repeat offense was applied, which provides for an administrative detention of 60 days instead of 20), wrote in the press release immediately after the sanction:

“After rescuing a total of 145 people in distress at sea during two operations on 7 and 8 March, Italian authorities detained the vessel SEA-EYE 4 for 60 days on 11 March and fined it 3,333 euros.The reasoning behind this is not tenable, as SEA-EYE 4 is not permitted by international law to participate in pushbacks to the civil war country of Libya."

The Libya question 

The administrative detentions to which the ships were subjected were always the result of the encounter at sea with the so-called Libyan coast guard.According to the prefectures that decided to attribute the detentions, the NGO ships, in carrying out the rescue, contributed to creating dangerous situations by not coordinating with the Libyan patrol boats.Many testimonies demonstrate how in reality the risky maneuvers of the Libyan coast guard and the aggressive practices towards shipwrecked people or humanitarian workers are the primary cause of danger at sea.

Guido Confalonieri, driver of one of the rescue boats on the Humanity 1 ship, tells Blue suitcase one of the last meetings with the Libyan coast guard, which intervened during a rescue at sea:

"We were distributing life jackets during a rescue, five of them arrived in a very small dinghy at full speed with a Kalashnikov and they pointed it at us and told us 'go away' while screaming.They boarded the two boats, the one to which I was distributing the jackets with my dinghy;they tried to start one of these boats with a reckless maneuver and someone fell into the water.Anyone who didn't fall into the water clearly jumped into the water when these violent people found themselves.It is a reaction that we have unfortunately seen many times, which is dangerous because from a situation where there were boats that were not yet in critical conditions we found ourselves in a situation where suddenly there are around 40 people in the water.

Luckily, however, most of the people who ended up in the water already had a jacket because we had almost completed the distribution;then they started retrieving people from the water.Among other things, they shot anyway, they shot into the water, not far from where the people were.We recovered about thirty people with dinghies and brought them on board;when we returned to collect the last people in the water they pointed their weapons at us again and clearly told us to leave.

And so unfortunately we had to move away, we recovered 77 people;about twenty - we had estimated that there were around 100 people on the three boats - were reported by the Libyan patrol boat and therefore probably taken back to Libya.There is an addition, it is possible, it is not verified, that a person was left behind.It has already happened that people have been left behind...This is to say that therefore from a rescue that was not critical, we arrived at a situation in which there could have been a death.A dangerous situation has been created which is paradoxical because we are accused of creating dangerous situations when in fact it is essentially the Libyans who create them."

For this episode, the NGO SOS Humanity was sanctioned and given a 20-day administrative detention for failing to coordinate with the Libyan coast guard.Many spokespersons for the ships have highlighted how, when reconstructing the dynamics of the rescue and administering the sanction, only the reports of the Libyan authorities are taken into consideration.According to the NGO ships, what the Libyans reported does not correspond to the reality of the rescue dynamics and, indeed, it is a narrative practice used to provide a reason to block the ships.Although a rapid appeal is presented, in most cases the administrative stop remains in force for the entire duration of the suspension of activities, precisely because the administrative timescales provide for a slower cycle.

In cases where the judge rules in favor of the ships, it becomes essential that the detention is removed, even when the days of detention are exhausted.As in the case of Sea Watch, for which the Court of Ragusa he decided to speak out and revoke the detention at the end of the period of administrative detention, to maintain that there was no offense and to avoid that in the future a repeat offense would be applied to an offense that was not committed.In fact, the decree provides for three sanctioning stages which, if repeated, can culminate in the confiscation of the ship.

Yes law on the Sea Watch blog:“The Piantedosi law, which, in violation of the rules and obligations imposed by international law, criminalizes the operation of the ships of non-governmental organizations with instrumental charges, is gradually being dismantled by the judiciary.But while the Italian judges are forced to repair, from provision to provision, the damage created by this law, the ships remain stuck in port and people continue to die at sea"

The Piantedosi decree is thus accused by NGOs of violating international standards for two main reasons:sanction ships flying a foreign flag for actions carried out in international waters and for collaboration with Libya.The issue of collaboration with Libya is particularly controversial.The sanctions imposed on ships for not cooperating with the Libyan coast guard raise doubts about the safety of shipwrecked people, considering that Libya is not considered a safe port according to international conventions.According to these conventions, in fact, when a rescue occurs, according to rule 33 of chapter V of the SOLAS convention - the commander of a ship has the obligation to provide assistance to anyone found at sea in danger of life and is also required to proceed promptly with the assistance of people in danger at sea, of whom he has been informed.The commander has the obligation to bring the shipwrecked people to a safe port.Libya, according to the European Convention on Human Rights, is not a safe haven.The repeated sanctions attributed to the ships for not having collaborated with the Libyan coast guard, as well as being unfounded as shown by the testimonies, therefore hide a fundamental contradiction.

Paval Botica, commander of Sea Eye 4, explains to Blue suitcase:

“In the future, if we want to avoid detention, it means that when we are in the rescue zone, we are faced with a stressful situation and the so-called Libyan coast guard, we should obey those who order us to leave.Theoretically, we should move away.People would be hosted on the Libyan coast, where they risk being thrown into the water, punished, put in prison and treated like slaves, clearly contravening international law.It is crucial to understand that Libya is not a safe land and that no port in Libya offers security.This behavior goes against international law.We cannot allow people to be returned to Libya, as the situation is extremely clear and unacceptable."

The paradox of the application of this decree is therefore evident when the Italian State takes steps to sanction behaviors that it would not have jurisdiction to sanction and which, in themselves, do not violate any international conventions but rather act in compliance with them.

The Italian administrations would be complicit in the application of a sanctioning regime without verification of the evidence of the offense on both sides and in an arbitrary interpretation of point f, the condition of danger, since the testimonies demonstrate that the danger is in the majority part of the cases constituted by the presence of the so-called Libyan coast guard.The decree in question, therefore, may not be considered constitutionally illegitimate, to the extent that it is possible to give a constitutionally oriented interpretation that makes it legitimate from a constitutional point of view, thanks also to the extreme generic nature of its provisions.However, its implementation comes into direct conflict with the principles of international conventions, violating the pact of mutual solidarity on which the laws of rescue at sea are based.

As Guido Confalonieri concludes:“It is not only a human discussion, that is, it is clear that there is also a very strong human component, but it is a legal discussion.Most maritime law conventions have the safety of human life at their core.It is sometimes difficult to explain it to those who don't sail, but it is a central point, letting people drown is something that cannot be tolerated."

Preview image:Melissa Marchi