As epitomized by the 2005 case against Cap Anamur, the criminalization of maritime rescue operations is not entirely new. Since the early 2000s, Italian and Tunisian fishermen have been repeatedly investigated when conducting rescue operations (Basaran 2015). More recently, the accusation that maritime rescue operations incentivize irregular immigration has been forcefully raised against public SAR operations conducted by European military and law enforcement agencies as well. Most notably, operation Mare Nostrum was criticized as “an unintended pull factor, encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more tragic and unnecessary deaths” (House of Lords 2016).
In 2015 and 2016, Italian media and society largely perceived NGOs as supporting public rescue efforts. Media coverage of SAR focused on the humanitarian duty to assist migrants in distress and rarely distinguished between public and private SAR providers. When they did, media portrayed NGOs in a very positive light, defining them as “heroes” or even “angels of the sea” (Barretta, Milazzo, Pascali & Chichi 2017). NGOs, however, soon became victims of their own success. As non-governmental assets became the largest provider of SAR, the same suspicions that had been levelled against Mare Nostrum turned into off-the-shelf accusations to be used against non-governmental rescue assets.
Accusations leaked from European authorities had a crucial role in triggering a shift in Italian public opinion, already concerned by the large number of irregular migrants reaching Italian coasts. In December 2016, the Financial Times leaked excerpts from a Frontex confidential report raising concerns about the interaction between private rescuers and smugglers. These quotes stated that NGOs had indirectly communicated with human smugglers by, for instance, using light signals visible from the Libyan coast at night and suggested that migrants had been given “clear indications before departure on the precise direction to be followed in order to reach the NGOs’ boats” (Robinson 2016). The Financial Times later released a correction, reporting that Frontex had only raised concerns but was in no way accusing humanitarian workers of collusion with smugglers (Financial Times 2016). However, in February 2017, then Frontex Director Fabrice Leggeri indirectly reiterated some of these accusations in an interview for the German newspaper Die Welt, stating that the presence of European ships off the Libyan coast would make it more likely for smugglers to force migrants onto unseaworthy vessels, and even openly called for “more police investigations” (Bewarder 2017). Another indirect accusation came from a confidential report signed by the Head of the EU naval mission EUNAVFOR MED Operation Sophia, Admiral Credendino, leaked to the public through Wikileaks. The report argued that “smugglers were “relying on an increasing number of NGO rescue vessels operating close to, and sometimes within, Libyan territorial waters” (EEAS 2016: 3). By early 2017, these accusations had trickled into the European political debate. In response to a parliamentary question by Marine Le Pen, EU Migration and Home Affairs Commissioner Dimitris Avramopoulos stated in March 2017 that “nothing [in the Frontex report] could be interpreted as allegation of collaboration between the smugglers and the NGOs”, but acknowledged that SAR missions “close to, or within, the 12-mile territorial waters of Libya” could have “unintended consequences” (European Parliament 2017).
In October 2016, the private security contractors operating aboard Save the Children’s ship started denouncing alleged contacts between human smugglers and humanitarian workers. The guards, hired by the Italian security company IMI Security Services, sent reports to the Italian judiciary and intelligence services and reached out to Italian opposition leaders. These accusations initiated the investigation against the German charity Jugend Rettet, which was apprehended by Trapani’s public prosecutors in September 2017. In April 2017, another prosecutor—Catania’s attorney general Carmelo Zuccaro—publicly claimed he had proof of direct contacts between NGOs and human smugglers (La Stampa 2017). When asked to corroborate his statements, Zuccaro acknowledged that he had no admissible court evidence, downplaying his own previous statements as “working hypotheses” (Scavo 2017). Nevertheless, these accusations were immediately appropriated by Italian opposition leaders, who called for a crackdown on sea rescue NGOs. Most notably, Luigi Di Maio, soon to become leader of the Five Stars Movement, popularized the expression “taxis of the sea”, arguing that NGOs were not rescuing people in distress but facilitating smuggling, and suggesting that “someone” was behind their actions (Huffington Post 2018). These accusations found widespread currency in the media discourse. Between 2017 and October 2019, for instance, the right-wing outlet Il Giornale referred to NGOs as “taxis” a total of 30 times.
In response to these mounting suspicions, the Italian Senate Defence Committee initiated a parliamentary inquiry. While acknowledging that no evidence of rescuers’ misbehaviour had yet been found, senators called for NGOs to be regulated in order to preserve Italy’s control over its borders (Senato della Repubblica Italiana 2017). Following the Parliament’s directions, the Italian cabinet led by Paolo Gentiloni—which had simultaneously negotiated an agreement urging Libyan militias to curb departures in exchange for financial aid—issued a code of conduct on maritime rescue on 1 August 2017 (Camilli 2017). Organizations refusing to sign were threatened with having the authorization to disembark migrants in Italian ports denied (Cuttitta 2020; Cusumano 2019a). Sea rescue NGOs were asked to refrain from entering Libyan territorial waters, always keep their geolocalization tracking devices on, not use light signals that could guide migrants to their ships, demonstrate that their personnel and vessels are properly trained and equipped, and constantly communicate with both flag states and the Italian Maritime Rescue Cooperation Centre. Moreover, rescuers were asked to provide information on suspect smugglers to Italian law enforcement authorities, collect makeshift boats and engines, and accept the presence of Italian policemen aboard their vessels (Ministero dell’Interno 2017). Although these measures were criticized as redundant, insinuatory, or incompatible with the humanitarian principles of neutrality, impartiality, and independence from political authorities, most NGOs signed the code (Del Valle 2019; Cusumano 2019a). Both signatory and non-signatory organizations, however, would soon see their activities severely limited.
The March 2018 national elections marked a clear victory for the parties that had demanded a stricter approach to irregular migration—the abovementioned League and the Five Stars Movement, which formed a coalition government led by the independent Giuseppe Conte (Conte I). Shortly after his appointment as Interior Minister in June 2018, the League’s leader Matteo Salvini declared Italian ports “closed” to all foreign-flagged vessels that had rescued migrants off the coast of Libya (Carrera and Cortinovis 2019; Del Valle 2019). Despite the absence of formal laws to enact this warning, the government’s new stance immediately had a strong impact on NGOs’ activities. While in previous years Rome had allowed NGOs to dock quickly after a rescue operation, the new interior minister used his institutional role in identifying an appropriate place of safety to veto or at least delay the disembarkation of migrants on Italian territory. During the Conte I government (June 2018–August 2019), Italy’s government engaged in several standoffs with NGO ships, using the refusal to authorize disembarkation to showcase its tough approach to irregular migration and obtain greater support from the EU in relocating those rescued at sea (Cuttitta 2020; Carrera and Cortinovis 2019).
As shown by Fig. 3, NGO ships and the people on board were forced to wait for an average of 9 days after requesting the authorization to land in Italy (or, much less frequently, Malta) before being allowed to dock. In two striking cases (concerning the Sea-Watch 3 vessel in June 2019, and the Open Arms in August 2019), the time at sea between rescue and disembarkation reached 20 days. In June 2019, Sea-Watch’s captain Carola Rackete’s decision to enter the port of Lampedusa without authorization escalated tension between the Italian government and NGOs, prompting Salvini and the right-wing press to refer to NGOs as “pirates” (Micalessin 2019).
Disembarkation delays subsided but did not entirely stop with the formation of a new coalition cabinet that no longer includes Salvini’s League (Conte II) in September 2019. Since then, waiting time before disembarkation decreased from 9 to 4.2 days. Italy’s new cabinet has, however, maintained the policy of not authorizing disembarkation immediately upon the reception of a “place of safety” request.
In early 2019, the Conte I cabinet complemented its power to veto disembarkation on the grounds of public safety concerns with some more specific legal provisions. In March, interior minister Salvini adopted a ministerial directive instructing border enforcement authorities to deny entry to any vessels carrying out SAR “improperly, violating the law of the sea and, therefore, jeopardizing public policy and national security” (Ministero dell’Interno 2019a). Three other directives followed, each addressing specific cases where NGOs had carried out SAR operations and had requested a place of safety in Italy (Min. Dir. 4 April 2019 against the Alan Kurdi (Ministero dell’Interno 2019b); Min. Dir. 15 April 2019 against the Mare Jonio (Ministero dell’Interno 2019c); and Min. Dir. 15 May 2019 against the Sea-Watch 3 (Ministero dell’Interno 2019d). While these documents did not explicitly ban rescue ships’ entry into Italian territorial waters, they paved the way for legal proceedings by suggesting that “entry should be deemed as non-innocent passage” (Ministero dell’Interno 2019d), arguing that NGOs were “exploiting international law” (Ministero dell’Interno 2019b), or blaming rescuers with “indirectly cooperating with smugglers, de facto encouraging sea crossings [and] objectively aiding and abetting entry on national soil” (Ministero dell’Interno 2019c).
Finally, in June 2019, the Italian government issued decree-law 14 June 2019, n. 53 (converted into Law n. 77 on 8 August 2019). This provided the interior minister with the power to restrict or prohibit access to Italian territorial waters to any private vessel for reasons of national security or public order. Shipmasters disobeying these provisions could be levied fines between 150,000 and 1 million EUR and have their ships confiscated (Cuttitta 2020; Carrera and Cortinovis 2019). Between June and August 2019, NGO ships were banned from entering Italian territorial waters in five separate cases. In four of these cases (concerning the Sea-Watch 3 in June; and the Open Arms, the Eleonore, and the Alan Kurdi in August), the ships were authorized to disembark after waiting for an average of 14 days at sea. In the remaining case (concerning the Ocean Viking), the ship disembarked 356 migrants in Malta after 13 days. Although the new Italian cabinet (Conte II) pledged to eventually repeal these provisions, which have never been applied, the decree remains in force as of August 2020.
Besides being the target of policy restrictions, NGOs were also increasingly subjected to judicial proceedings. Most accusations consist of aiding and abetting illegal immigration, a crime introduced into Italian legislation by the legislative decree 286/1998 and tightened by law 189/2002 and legislative decree 241/2004. However, other charges have sometimes been brought, including “violence against warship” and “illegal dumping of dangerous and infected waste”. As Table 2 shows, 18 separate investigations have been launched in Italy or Malta against NGOs operating in the Central Mediterranean route between 2017 and February 2020. Although the independence of the judiciary from the executive branch is firmly embedded in the Italian political system, the wider climate of suspicion against NGOs is likely to have affected public prosecutors’ decision to initiate investigations. These indictments increased in frequency over the years: four were launched in 2017, five in 2018, and nine in 2019. These proceedings resonate with the government stance towards NGOs. When the centre-left Gentiloni cabinet was in office, 0.3 investigations were initiated every month. The number of investigations against NGOs grew to 0.7 per month during the Conte I government and dropped again to 0.3 during the Conte II government. In most cases (11 out of 16), NGO ships were impounded while the investigation was ongoing. Vessel confiscations lasted an average of 6.6 months, grounding most NGO ships in the summer months, the busiest time of the year for SAR operations. By late 2019, five NGO ships had been simultaneously under seizure (see Fig. 4). The timeframe of the figure illustrates the role played by the wider political climate in the escalation and ensuing decrease of legal proceedings against NGOs.
However, it is worth acknowledging that not all investigations were motivated by the conviction that NGOs were involved in wrongdoings or the attempt to stop their activities. When rescue ships were denied the authorization to dock, some public prosecutors who considered it illegal to leave migrants at sea for too long arguably enacted a strategy of seizing ships in order to facilitate the disembarkation of those on board. This was the case for Sea-Watch 3 in May 2019 and Open Arms in August 2019, both impounded and released soon thereafter. Moreover, some prosecutors and civil society organizations challenged the closing of Italian ports on legal grounds, construing Salvini’s decision to deny the disembarkation of migrants and keep ships on hold at sea as an abuse of power and a form of arbitrary detention.
As of February 2020, almost none of the investigations initiated against NGOs found sufficient incriminating evidence to start a trial. In fact, five public prosecutors closed their investigations without bringing any formal charges. Humanitarian workers have consistently been seen as operating under a state of necessity dictated by the duty to protect human life and rescue those in distress at sea, two obligations enshrined by international law that prevail over the domestic prohibition of abetting illegal immigration (Carrera and Cortinovis 2019). In the only investigation that will result in a trial—that against Jugend Rettet—humanitarian workers are suspected of having rescued migrants that were not in a situation of distress. Consequently, the crime of aiding and abetting illegal immigration could not be immediately waived on the grounds of a state of necessity. Public prosecutors, however, immediately dismissed the accusation that Jugend Rettet’s personnel were in direct collusion with human smugglers and acknowledged that their motivations were “essentially humanitarian” (Camilli 2017). A trial was also initiated in Malta against Mission Lifeline’s captain Claus-Peter Reisch, who was first found guilty of incorrect ship registration and later acquitted in the appeal trial (Brincat 2020).
Since the start of the Conte II government, the criminalization of non-governmental SAR has eased, but not completely subsided. Indeed, a persisting tendency to question, delegitimize, restrain, and possibly criminalize NGOs is visible both at the European and the Italian level. At the domestic level, as already mentioned, the number of investigations against NGOs has decreased sharply, and new interior minister Lamorgese largely refrained from using the power to deny rescue boats access to Italian territorial waters. The ensuing reduction in disembarkation delays has increased the time that NGOs have been able to spend conducting SAR operations off the Libyan coast (from around 25% of days during the Conte I government, to 56% of days in the first 5 months of the Conte II government). Some relevant figures within the cabinet, however, remain highly critical of NGOs’ work. Foreign Minister Di Maio—who first referred to NGOs as “sea taxis”—is a case in point.
At the European level, in September 2019, the Ministers of Interior of five EU countries (France, Germany, Italy, Malta, and Finland) adopted a declaration for a “predictable temporary solidarity mechanism”, committing to accepting the relocation of part of the migrants rescued at sea by Italy or Malta. On the one hand, the declaration contributed to reducing disembarkation delays by replacing the lengthy ad hoc negotiations with other European partners previously initiated by Rome before authorizing ships’ entry into Italian ports. On the other hand, however, the document indirectly reiterated criticism and suspicions against NGOs. Most notably, the declaration mentioned “avoiding the creation of new pull factors” as one of the official objectives of EU member states. Moreover, it also incorporates an almost literal translation of the 2017 Italian Code of Conduct, reiterating the restrictions and implicit accusations contained therein (Ministero dell’Interno 2017, Carrera and Cortinovis 2019).
In conclusion, while efforts to prosecute and obstruct NGOs decreased between late 2019 and early 2020, the broader discursive stigmatization of non-governmental migrant rescue did not completely subside. While all court decisions so far have dismissed all charges of collusion with smugglers as well as of aiding and abetting illegal immigration, NGOs have continued to be accused of serving as a pull factor of migration by media, politicians, and official documents. The article will now turn to assess these accusations.