Investigation. In the last year, Italian authorities have ordered eight administrative detention measures against humanitarian ships at Italian ports. We examined these ‘kidnappings’ and the legal questions now before the courts.

Behind Italy’s ‘administrative detention’ of refugee rescue vessels

Photo by Simone Bernardini

After yet another tragedy at sea on Saturday, the spokesperson of the International Organization for Migration (IOM), Flavio Di Giacomo, denounced “a patrol system at sea that is clearly insufficient.” There are several reasons for this: there is no real SAR (search and rescue) coordination in the most dangerous stretches of sea, the institutional naval assets have been withdrawn, and the NGOs are only able to navigate in fits and starts, among a thousand obstacles. In the last year, the main obstacle has become that of administrative detention orders against ships.

The Mare Jonio has been stopped in Venice, the Aita Mari is in the port of Adra (Almería), the Sea-Watch 4 left Friday from Burriana (Valencia), and only the Ocean Viking is now in the SAR zone. The Open Arms, Sea-Watch 3 and Alan Kurdi are under administrative detention in Pozzallo, Augusta and Olbia (with a green light from the Sardinian TAR to go to the port of Burriana only). At the end of their next mission, the Sea-Watch 4 and Sea-Eye 4 (a new addition coming from the North Sea) risk the same fate.

Administrative detentions are ordered by the Coast Guard as a result of the so-called Port State Controls (PSCs) (which therefore do not concern ships under the Italian flag, such as the Mare Jonio). This type of inspection is meant to verify that commercial vessels comply with the standards of navigational safety, protection of the marine environment and maritime labor established by international conventions (SOLAS, MARPOL, CLM, STCW). The system of controls is standardized by the Paris Memorandum and EU Directive 2009/16/EC.

The database

Connecting the dots of the individual inspections gives us a broad picture. As the official database shows (where the last four reports are missing), in Italian ports, the PSCs against the humanitarian ships present began at the end of August 2019. But there is a date that marks a watershed: May 5, 2020. Until then, the Aita Mari, Alan Kurdi, Ocean Viking, Open Arms, Sea-Watch 3 and Sea-Watch 4 were subject to a total of eight PSCs (plus a few outside Italy, which always had positive outcomes). Only in one case was an administrative detention decided: in the first one, on the Open Arms in Porto Empedocle on August 22, 2019. The inspection came immediately after the landing of the shipwrecked people kept on board for 19 days by former Interior Minister Matteo Salvini, recently remanded for trial for that scandal on charges of refusal to perform official duties and kidnapping.

Since May 2020, however, the PSC-to-administrative detention ratio was suddenly reversed: nine inspections resulted in eight detentions (one each for the Aita Mari, Ocean Viking, Open Arms and Sea-Watch 4; two each for the Alan Kurdi and Sea-Watch 3). Something else changed, too: the number of irregularities found suddenly multiplied. In one fell swoop, they went from 4 to 28 (Ocean Viking), from 9 to 30 (Alan Kurdi), from 6 to 17 (Sea-Watch 3), and finally we have the most striking case: that of the Aita Mari. The Spanish vessel was subjected to two PSCs that found only one irregularity each: on November 27, 2019 in Pozzallo and on February 14, 2020 in Messina. Just three months later, on May 6, a similar inspection was carried out in Palermo: it identified 26 irregularities that led to administrative detention.

The Italian request

What happened between February and May 2020? The pandemic broke out across the world. With regard to NGO vessels, the Ministry of Infrastructure, to which the Coast Guard is subordinate, communicated that “on January 29, 2020, the General Command, Navigation and Maritime Safety Department forwarded to the flag countries a note requesting that ships be properly equipped and certified for search and rescue service.” Since it did not get a response, in the next PSCs it began detaining the vessels that suddenly became “inadequate.”

In practice, the Coast Guard, in addition to applying greater strictness, began to inspect ships no longer on the basis of the category to which they formally belong, but with regard to the function they actually performed. Or rather, it justified doing the PSCs on the basis of the category (as this is a control limited to commercial ships), but then in the actual inspection it looked at compliance with requirements of a completely different nature. These were no longer calculated on the basis of the crew members, but also of the people rescued. Until then, migrants had been considered shipwrecked and their presence on board was in derogation of certain features of the ships. This is what the international treaties set out, with the aim of putting the protection of human life before any other consideration.

On the NGO ships, on the other hand, shipwrecked persons are now counted as “passengers,” due to the “systematic” nature of SAR operations. Thus, for example, the toilet flushing system must no longer be approved just for the 20-30 members of the crew, but also for all the people rescued. The same applies to equipment and emergency procedures that must also take into account the shipwrecked people. Italy demanded that the flag states introduce SAR certifications in their legislation, which did not exist before, and that the NGOs adapt their ships to the new forms of registration.

The certifications

The ministry reports that during 2020, some states “have taken corrective action, certifying the vessels for the activities carried out.” For example, Spain, the flag country of the Open Arms and Aita Mari, and Norway, that of the Ocean Viking. The latter, after 152 days of detention during which a series of adjustments were carried out, passed an “initial” level PSC and resumed missions. The two Spanish vessels were certified by the flag state for search and rescue activities and were no longer subject to inspection for several months.

On the other hand, a conflict began with Berlin: because Germany did not adapt its national regulations, Italy continued to block its ships. Between July 2020 and March 2021, it did so five times: twice to Sea-Watch 3, twice to the Alan Kurdi, once to Sea-Watch 4. The German authorities reiterated, also after repeated checks, that they considered the ships safe and the certifications correct. Germany is among the most trusted states on maritime safety issues (in 2019, it was 11th on the “white list” of low-risk countries that adhere to the Paris Memorandum or equivalent agreements).

The justifications

Beyond the events concerning the individual flag states, the different interpretation of the treaties introduced by Italy remains a serious question: a great novelty not only for the concrete effects on ship detentions, but also in terms of relations with other member countries and regarding maritime law as a whole. The Ministry of Infrastructure stated that this change was a consequence of the “systematic way in which rescue operations were performed with ships that were not certified for the SAR activity carried out.”

The first NGO ship to start sailing in the central Mediterranean was the Maltese Moas. It was 2014, and the Renzi government had recently stopped the Mare Nostrum operation. Since then, European civil society vessels have increased in number and remained active along the migratory route that sees the highest number of deaths globally. In the first few years, they operated in close collaboration with the Italian authorities: the MRCC in Rome coordinated operations, pointed out boats in distress and authorized rescues and landings.

The Sea-Watch 3, which was targeted by two administrative detentions between 2020 and 2021, has been systematically rescuing thousands of people since 2015, when it was called Dignity I and was operated by Doctors Without Borders. The ship was the same, the safety equipment was probably less than today, and more migrants were being carried, thanks in part to Coast Guard coordination. Search and rescue activities have been “systematic” for six years, but it was only at the beginning of 2020 that shipwrecked people suddenly became passengers. The laws have not changed, and neither have the international conventions.

When the administrative detentions began in May 2020, the season of Salvini’s “closed ports” had come to an end. In government were the PD, M5S and LeU, on the basis of a pact of “discontinuity” with the previous government, especially in the field of migration policies. The Interior Ministry said that the issue of administrative detentions did not concern them, because it was under the purview of the Ministry of Infrastructure, which at the time was led by Paola De Micheli, former deputy secretary of the PD.

Contacted by il manifesto, De Micheli invoked EU Recommendation 2020/1365, by which the European Commission called for ships belonging to private organizations doing search and rescue “to be properly registered and equipped to meet the relevant health and safety requirements associated with that activity.” However, the Recommendation, which is not a binding legal act and recognizes the importance of NGOs in contributing “significantly to saving people at sea,” is dated September 23, 2020, when five of the eight administrative detentions had already been ordered.

De Micheli, who emphasized the difficulties her ministry faced both due to the arrival of Covid-19 and as it had to operate under the Salvini decrees for a long time, is claiming that there was no political indication to stop the ships and that the Coast Guard only acted to ensure safety. “And if by chance something were to happen to someone embarked on those ships because the seas are rough, who would be held accountable?” she asked.

The fact is that the NGO ships have been blocked in port to prevent a merely possible scenario, but in reality, the departures and tragedies have continued just the same. This is also because an institutional search and rescue mission has not been re-established in the areas where most shipwrecks occur.

The latest stop

Whether Italy has the right to ask Germany to reclassify its ships for SAR activity will be decided in the next months by the EU Court of Justice, which the Sicilian Regional Administrative Court has asked to interpret the community regulation after the appeal from Sea-Watch.

Meanwhile, on March 17, with a new government and a new Minister of Infrastructure, now Enrico Giovannini, the Open Arms underwent a PSC that lasted for 17 hours and ended with administrative detention. At the same time, former Interior Minister Salvini was being remanded for trial in Palermo for the 2019 scandal involving the same ship. From the few reports released on the measure by both the Coast Guard and the NGO, it would seem that the deficiencies found concern different areas from those imputed to the German ships.

It is also unclear why the vessel, which had obtained a SAR certification from its flag state as requested by Italy, was subjected to a type of inspection that only concerns commercial vessels. In any case, while the legal pretext changed, the result remained the same: administrative detention.

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