COE HR Commissioner Seeks Information Regarding Italian Interception and Rescue Actions in Libyan Territorial Waters

Council of Europe Human Rights Commissioner Nils Muižnieks has requested information from the Italian government regarding the nature of Italy’s maritime interception operations being conducted within Libyan territorial waters, the type of support being provided to Libya for these operations, and the nature of any safeguards that Italy may have in place to prevent intercepted migrants from being exposed to a risk of torture or inhuman treatment if returned to Libya.

Muižnieks’ letter notes that while the 2012 Hirsi Jamaa judgment dealt with interceptions in international waters, the Court’s findings clearly appear applicable to Italian operations in Libyan territorial waters.

Excerpts from the HR Commissioner’s 28 September 2018 letter:

“…It is my understanding that the Italian government, at the invitation of the Libyan Government of National Accord, has deployed ships in Libyan territorial waters, with the stated aim to support the Libyan authorities in curbing migrant flows…

Although the Hirsi Jamaa judgment [Hirsi Jamaa and others v. Italy [GC] (App. no. 27765/090) 23 Feb. 2012] deals with interceptions in international waters, the Court’s findings continue, in my view, to be relevant also in the context of the situation which might arise from operations in Libyan territorial waters…

[H]anding over individuals to Libyan authorities or other groups in Libya would [in my view] expose them to a real risk of torture or inhuman or degrading treatment or punishment.  The fact that such actions would be carried out in Libyan territorial waters does not absolve Italy from its obligations under the Convention.

Indeed on several occasions, the Court has found that obligations arising from the Convention may, under certain circumstances, also apply when a state party is acting wholly on the territory of a third country.  This may be the case when a state party to the Convention exercises effective control or authority over an individual on the territory or in the territorial waters of another state.  Such a situation may, in my view, arise, when Italian vessels intercept or rescue migrants in Libyan territorial waters.

…I would be grateful if you would clarify what kind of support operations your government expects to provide to the Libyan authorities in Libyan territorial waters and what safeguards Italy has put in place to ensure that persons, should they be intercepted or rescued by Italian vessels in Libyan territorial , are not subsequently exposed to a situation in which they would face a real risk of treatment or punishment contrary to Article 3…

In addition, in the light of the recently adopted Code of Conduct for non-governmental organisations involved in migrants’ rescue operations at sea, I would appreciate any information you may provide about measures to ensure that search and rescue operations in the Mediterranean, including those conducted by non-governmental actors, can continue to be carried out effectively and in safety….”

Full text of letter here.

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