Reminder of some legal points about the context of Carola Rackete’s arrest
European governments and the European Commission for at least three years have earned very reasonable distrust about what they say is legal or illegal.
With #CarolaRackete arrested this morning for disembarking the refugees and other migrants whom #SeaWatch3 rescued in distress at sea nearly two weeks ago in a port of Italy, without permission to land, it’s timely to remind everyone of some basic legal points about this situation.
In the next few weeks, the Italian government and European Commission will try to spin their story about the law and this situation. Too often I’ve seen even professional journalists in their writings have been unclear about asylum and maritime rescue laws and naively trust that government officials speak honestly when they describe the law. It has not been the case for at least three years that government officials can reasonably be trusted to be honest about the facts and laws of asylum and maritime rescue.
The most recent update from Statewatch on the Italian government and European Commission’s legal contortionism to try to make the law fit their political narrative —
Yasha Maccanico, June 2019, The Commission and Italy tie themselves up in knots over Libya.
They have been trying for years to provide legal legs to their political narrative claim that Libya is a “port of safety” — an utterly implausible claim, that has been rejected every time it’s been tried in European courts, yet they keep trying to spin stories including legal terminology to try to fool people into accepting their narrative and hence their policies as legal.
First, they try to conflate “human trafficking” and “people smuggling”, the latter of which is properly called “facilitating illegal entry” — the legal provisions to prevent and prosecute trafficking are rightly far more serious than those for facilitating illegal entry, so they are trying to deceive people who don’t know the difference into perceiving the criminalisation of humanitarian maritime rescue as valid legally. They don’t try this rhetorical tactic in legal arguments or in courts, because they know it has no legs, but they often repeat it in popular press statements. See UN anti- human trafficking website (link in the article linked below) for the legal definitions.
When they try to prosecute humanitarian maritime rescue workers, they mostly try to misrepresent it as facilitating illegal entrance / “people smuggling” (in Greece, I’ve also heard of prosecutors pressing charges for trafficking against the refugees who steered their boats with many people in — that’s certainly not valid, but they do it in order to impose severe penalties as a deterrent to others, which is in violation of Art.31 of the Geneva Convention on Refugees, 1951). Rescuing people in distress at sea and disembarking them in a port of safety is an international legal obligation, and it is explicitly exempted from facilitating illegal entrance. In addition, in Italian national law, facilitating the entry of people who you reasonably believe are in need of international protection to enable them to apply and not to exploit them (e.g. by taking money from them) is exempt from facilitating illegal entry. (See EU FRA’s legal advisory paper, linked in the article below.)
Any form of exercising “effective authority or control” in order to get people likely to be in need of international protection forcibly returned to a place where they will not be safe (including that the place must have a properly functioning asylum system), is extraterritorial refoulement. Governments are not only legally responsible for not refouling people from within their territories, but also extraterritorially wherever they may have effective authority or control — such as, using Stage agents and assets (aerial observation drones) to send information to the Libyan so-called coastguard in order to get refugees and other migrants trying to escape from Libyan territorial waters captured and forcibly returned to arbitrary detention where they will be seriously abused. That is refoulement and it is absolutely illegal. I mean ‘absolutely’ precisely — it is a jus cogens in international law, meaning it’s effectively irrevocable, and it is not allowed to be subject to any proportionality arguments relative to other human rights, because it is as serious as the prohibition of torture, which in practice it overlaps with.
Recommendation to activists: do not over-use or rely on the linguistic framing of this situation as a matter for compassion or voluntary morality — it is not just that. Governments are supposed to be administrative authorities applying and enforcing the law — not making up political stories and then twisting the law to fit their story, and blatantly deliberately and systematically violating the law. We’re in danger of losing the point that governments do not make laws, legislative assemblies make laws, and courts judge what is a valid interpretation and application of the law. (I’m simplifying — governments can propose laws to legislative assemblies and can make international treaties subject to legislative scrutiny (and on some matters, including asylum and human rights (per Art. 218 TFEU), also subject to prior consent from the legislative assembly) and judicial review.) Rescuing people in distress at sea is an international legal obligation which our States should be fulfilling, not just leaving it to civil society organisations, or trying to repress civil society organisations from carrying out those legal and moral obligations.
Losing the constitutional separation of powers between executive vs. legislative vs. judicial branches of the State would move us into a situation of arbitrary State power located in a popular leader, which is what the fascists leading the pop-nats want. Ivan Ilyin, the fascist author who Putin most often references, defined fascism as “a redemptive excess of patriotic arbitrariness” — the opposite is maintaining the Rule of Law, which includes strict separation of the three powers of State. Salvini is a fascist and an agent for Putin. The issue of irregular migration (which is irregular primarily because European governments do not allow enough regular migration to meet the needs of forcibly displaced people who are otherwise forced to remain in conditions of bare life, without hope or freedom) is being instrumentalised by the fascist leaders of the populist-nationalist movement in order to undermine and degrade the whole liberal democratic international order of human rights laws and Rule of Law, not just ‘democracy’ as majoritarian populism.
Recommendation to journalists: beware of taking government officials’ stories and legal terminology at face value, or repeating it churnalism style without accurate contextualisation. They are not at all neutral arbiters of what is legal in this situation, frankly they are on the side of the pop-nats and fascists, because they think appeasement strategy will save their own asses, and they have persistently earned very reasonable distrust about what they claim is law. Check with independent or academic international human rights lawyers before repeating what government officials say is legal or illegal.
Lastly, SeaWatch are going to need an increased legal defence fund. If you can afford to contribute, please do —
All references are in my previous articles, which I compiled into one here —
