Bereavement for the dead, collective refoulements for the living

By Fulvio Vassallo Paleologo
The latest tragedy hit waters near the small uninhabited island of Lampione to the west of Lampedusa. Facing the Tunisian ports of Mahdia and Monastir, it is the first strip of Italian soil that can be reached from north Africa. Despite all the confusion surrounding this tragedy, it now seems clear that the control and rescue operations, initially deployed in an area covering up to 60 miles south of Lampedusa, are now being carried out only in close proximity to the Pelagie islands.

Lampedusa officially gained the title of “unsafe port” in September 2011 by the Captain of the Port Authorities, under the strong pressure of the then Minister of the Interior, Roberto Maroni. Consequently, the fleet of ships based in Lampedusa, the majority of which was used to transfer migrants to Porto Empedocle (Agrigento), was moved further north, close to the border with international waters. The lack of ships on the island meant that it became easier for boats bringing migrants from North Africa to reach Italian shores. The boats transporting migrants are often fishing boats which seem to have little difficulty avoiding Lybian or Tunisian surveillance. Furthermore, it now takes longer to reach (and to save) the migrants finding themselves in danger in international waters while making their crossing towards the ‘fort’ of Europe.
This was apparent in the case which took place on Thursday 6th September. From the moment the alarm was raised to the arrival of the rescue teams, several hours passed. The situation was further complicated by the onset of nightfall which made search operations more difficult. It is possible that enabling the Lybian and Tunisian authorities to intercept migrants escaping towards Europe has resulted in a less demanding role for the Italian authorities in the surveillance of the international waters south and west of Lampedusa. And it would appear that there are positive effects with boat arrivals falling by 90%. But the reason for this decline is certainly not due to the fact that Lampedusa has been declared an “unsafe port”. Such a decision is at any rate completely unfounded from a technical point of view. How can it be possible to qualify a mooring place as “unsafe” when over the years it has enabled tens of thousands of lives to be saved? The port’s status was downgraded due to the burning down of the First Reception Centre (CSPA) which occurred during a migrant protest. Yet the fact that the CSPA had been inappropriately transformed into a Detention Centre and the fact that the migrants were being illegally held there for weeks, seem to be omitted from any justification of “unsafe port” status.
In reality, according to the ANCUR report from 30th June 2012, the majority of boats leaving Lybia are now intercepted by the Lybian authorities according to the working protocols in force and also in collaboration with the Maltese and Italian military. The report also includes cases of Tunisian and Algerian boats being stopped by the military and being taken back to the ports of their departure. Following the harsh condemnation by the European Court of Human Rights for the collective refoulements to Lybia which took place on the Italian Finance Police’s ship Bovienza on the 6th May 2009, the “dirty work” of blocking the migrants at sea and forcefully redirecting them back to the port which they came from, has now been externalised as a result of the latest bilateral agreements between Lybia and Tunisia. What happened in front of the cliffs of Lampione serves as a reminder of what the Italian Minister of the Interior, Cancallieri has put forward on many occasions, that every country touching the Mediterranean has to be responsible for the surveillance of its own waters in order to tackle illegal immigration into Europe. And with these working profiles, emergency service cooperation agreements still seem to be in force between the Lybian, Tunisian, Algerian and Italian authorities.
It remains to be seen, however, if, for the Italian Minister for the Interior who never misses the opportunity to offer up sympathy for the victims of such tragedies, the military authorities of these countries can guarantee to respect the human rights of the migrants stopped in international waters and returned to the port of their departure. Several reports by recognised international agencies have confirmed increasingly serious cases of abuse against migrants carried out by military forces travelling in Lybian territory. In Tunisia and Algeria there are no cases of such serious reports, but after an escape attempt, any other boat leaving for Europe is likely to be sanctioned and if collective refoulement does occur the migrants are unable to request any form of international protection or take advantage of humanitarian protection if they do once again reach Italian soil.
Amnesty International has denounced the European Union’s poor lack of commitment in tackling the problem of preventing such tragedies. In reality, the European Union has blocked all directives concerning research into legal entry and instead, for years, it has been pooling all its resources into armed vehicles for the FRONTEX mission of “war against illegal immigration”. This war has nothing whatsoever to do with the traffickers and those who organise the crossings to Europe, but is purely a war against the bodies and the lives of migrants. Channels of legal entry have to be opened and migrants at sea saved as soon as they are sighted. The boats on which they travel bear no guarantee of a safe crossing. It should not be necessary to wait until they have reached territorial waters or until diplomatic disputes have been resolved or until the military arrive from the country of departure, as is the current situation with Lybia. It is necessary to be clear about the net distinction between the duty to save and provide assistance for migrants, and the political digestion of immigration.
All concepts behind immigration and international and humanitarian protection, such as: the obligation to save human lives; the indefectability of sea rescues; respecting fundamental human rights; and, the duty to assist others with dignity, must no longer be up for discussion in the name of an abstract need to defend national borders. Especially, as these are national borders which are absolutely permeable when we are dealing with the need to satisfy the black work market in order to ensure competition within entire sectors, as is the case with agriculture, or to satisfy new situations emerging in the welfare system, as is the case with home helpers and care workers.
In order to prevent further tragedies, it is not possible to delay administering aid until the last possible moment, as can happen when waiting for the Lybian or Tunisian authorities to arrive to take those escaping whose lives are at risk back to their country. There is the concrete possibility that the “wrecks” the migrants travel upon will sink in international waters. Alternatively, they may be at high sea for days while the usual disputes between Italy and Malta and Frontex wage on over who is competent to carry out rescue operations, or over where the boat which has run into trouble has come from. In war and in the war against illegal migrants, the first victim is Truth. It would be useful to disclose the State secrets surrounding the phenomenon, even when police investigations do not permit it, in order to try and understand why successive waves of migrants continue to arrive in Lampedusa from Tunisia and Lybia. Furthermore, they are waves of immigration which continue to rise and fall. The methods change, yet one common feature remains the same: the high price paid for the cost of lives. And for those who manage to complete the crossing, if they are from Tunisia, Egypt or Algeria, after being rescued and undergoing police interviews in order to ascertain who was responsible for organising the voyage and in charge of the boat (the guilty are often chosen at random from a group of migrants), there awaits immediate refoulement. Any recognition process does not include individual identification by consulates and therefore the refoulement assumes the character of a collective forced repatriation, which is forbidden by the European Convention of Human Rights and the Schengen Border Regulations n.562/2006, which impose precise formalities and the right to a defence for all who must undergo the procedure of forced refoulement.
We are really curious to find out what treatment the survivors of this last disaster will receive after they are no longer deemed useful to police inquiries, as soon as the organisers of the journey have been identified. They can expect a period of detention in a reception centre which has been transformed into a identification and expulsion centre and will undoubtedly be followed by the return to their country of origin. Penal cases are never brought against the Italian State for the omission of aid or for the practise of forcing the transfer of migrants, or as a result of the abuse that the migrants are subjected to within the unofficial Detention centres which have been set up on a permanent basis in order to make the migrants “disappear” as soon as they step off the boat. Furthermore, they are centres which are inaccessible for organisations such as OIM, ACNUR, Save The Children, who collaborate with the Ministry of the Interior as part of the Praesidium project. The structure in Porto Empedocle is a warehouse within the port, off-limits to everyone including lawyers, which has been used as a Detention Centre for migrants in transit from Lampedusa since last year. The First Reception Centre in Pozzallo (Province of Ragusa), another warehouse in another port, is continuing to function as a temporary Centre of Identification and Expulsion, despite not having the official status of being able to do so or providing its detainees with any validation by the judiciary or access to a defence. Other provisional Detention structures have also been opened and then closed in recent weeks in Porto Palo di Capo Passero and in Licata. They make use of the military zone status in order to isolate the migrants and prevent them from having any communication with the outside world for days on end. And then, the Tunisian Consul, and one of his delegates, like the Egyptian Consul in Catania, carry out the briefest of recognition procedures before the boarding of the plane for Tunisia in Palermo. These are the scenarios that could occur to the migrants rescued at sea a few days ago. Those who were escaping from a certain death.
But those who attempt to evade the laws governing illegal immigration by crossing the Mediterranean will try again and again, even at the cost of their own lives, as the witness statements of those who have managed to arrive and to stay in Italy after having experienced illegal collective refoulements demonstrate. Even in this most recent tragedy, which took place just off the island of Lampione, a Tunisian women was aboard who had already arrived in Lampedusa last year, and had then been the victim of a collective refoulement (after having been transferred, believe it or not, to Sardinia). She was probably one of the many people boarded onto prison boats and planes that the Minister Maroni used last year to repatriate Tunisians, contrasting with the norms of the Schengen Treaty on refoulements at borders and in contrast to the constitutional guarantee which favours illegal migrants.
A foreign political turning point is now unattainable without the delegation of borders to States which do not effectively apply the Geneva Convention 1951 on the protection of refugees, like Marocco or Tunisia, or in the case of countries such as Lybia, which have never even attempted to apply it. There should no longer be any bilateral agreements to financially and technically support Lybia, or any other country in transition, which does not guarantee that the employees of their consulates will always respect human rights in the “control of the flux of illegal immigration”. The same request can also be extended to the collective readmission agreements between Egypt and Italy or on the readmission agreement which “places trust in the captain of the ship” stipulated in 1999 between Greece and Italy, to cite just a few of the more extreme cases of international agreements that today still bring serious violations of rights to people, as well as an extremely elevated price to human lives. It is time for the Italian judiciary to realise that there is no sense in going after whoever happens to be sailing the boat on that day and making an example out of them to ease public opinion. Also because, even when lawyers are found who fully exercise the defence rights of those in charge of the boats (who in some cases are minors), at the end of the trial there is always a lack of evidence of their effective involvement and the only possible outcome is yet another expulsion.
Fulvio Vassallo Paleologo
University of Palermo