Human Rights Watch Amicus Brief to Italy's Constitutional Court

YOUR EXCELLENCE THE CONSTITUTIONAL COURT

Friend Curiae

of Human Rights Watch (hereinafter "HRW"), having its registered office in New York (United States), 350 Fifth Ave, New York, NY 10118, and legally incorporated in Brussels (Belgium), Square de Meeûs 35 1000, represented by Ms. Aisling Reidy, born in Johannesburg (South Africa) on 3 January 1972 (CF PP0698829),

in the judgment of the constitutional legitimacy of art. 1, paragraph 2-sexies of Legislative Decree 21 October 2020, n. 130, converted into law 18 December 2020, n. 173, as amended by Legislative Decree 2 January 2023, n. 1, converted with amendments by Law 24 February 2023, n. 15,

raised by order of 10 October 2024 by the Court of Brindisi.

PREMISE

HRW is an international non-governmental organization that has been investigating human rights violations around the world since 1978 and has a vested interest in the case at hand. HRW has been documenting abuses of migrants and asylum seekers in Libya for over 22 years.[1] HRW also regularly acts as amicus curiae before national and international courts on issues of primary importance in human rights and international law and has been granted leave to intervene as a third party in two cases against Italy before the European Court of Human Rights relevant to the present case. In particular, in the 2012 judgment Hirsi and Others v. Italy, the Court accepted evidence submitted by HRW to find, inter alia , that by transferring the applicants to Libya following interception at sea, Italy had violated Article 3 of the European Convention on Human Rights (ECHR) because of the risk of ill-treatment in Libya and repatriation to Somalia and Eritrea, as well as Article 4 of Protocol No. 4 to the ECHR by carrying out a collective expulsion. [2] HRW also intervened jointly with Amnesty International in the 2012 case SS and Others v. Italy. Italy upholding Italy's responsibilities under Article 3 of the ECHR for the arbitrary detention, ill-treatment and other serious human rights violations suffered by migrants in Libya following interceptions by the Libyan Coast Guard (hereinafter "LCG"), as part of the cooperation between Italy and Libya on migration policies and practices.[3] The case is still sub iudice.

In relation to the case in question, HRW argues that the obligation to comply with the orders of the Libyan authorities imposed on rescue vessels operating in international waters pursuant to art. 1, paragraph 2-sexies of Legislative Decree no. 1 of 2 January 2023, converted with amendments by Law no. 15 of 24 February 2023, hereinafter "provisions of the decree," entails a violation of Italy's obligations under international law, in particular the obligation not to expose anyone to the risk of torture or inhuman or degrading treatment, and the obligation to disembark people in a place of safety after a rescue operation.

The condition of migrants and asylum seekers in Libya

The state of migrants' rights in Libya is well known and has been extensively documented by authoritative observers.[4] Over the years, evidence has emerged of systematic arbitrary detention in inhuman and degrading conditions, torture, sexual and gender-based violence, forced labor and extortion, among other serious human rights violations. In 2016, the United Nations High Commissioner for Human Rights (OHCHR) and the UN Mission in Libya described the country as a “human rights crisis” for migrants.[5] In 2022, the UN Security Council passed resolution 2647, expressing “serious concern at the humanitarian situation in Libya, including […] the conditions to which migrants, refugees and internally displaced persons are subjected, including arbitrary detention, ill-treatment, [and] exposure to sexual and gender-based violence.”[6] In its final report in 2023, the UN Independent Fact-Finding Mission on Libya (UNFFM) found “substantial grounds to believe that crimes against humanity have been committed across the entire territory of Libya against Libyans and migrants in a context of deprivation of liberty.”[7] Also in 2023, the UN Special Rapporteur on violence against women and girls concluded in her report that migrant women and girls in Libya suffer “systematic and large-scale violations of fundamental human rights at the hands of armed groups, traffickers, individuals and state-affiliated and community-based institutions [including] kidnapping for ransom, sexual exploitation, forced prostitution, trafficking in persons, forced labour and exploitation and abuse by private employers.”[8] Finally, the Office of the Prosecutor of the International Criminal Court opened an investigation into crimes against migrants in Libya, finding that in 2022 such crimes "may have constituted crimes against humanity and war crimes.” [9] In 2023, the office reported that “impunity for crimes against migrants is a constant that still exists today,”[10] reiterating in May 2024 that “impunity for crimes against migrants remains a cause for concern for this office.”[11]

The United Nations High Commissioner for Refugees (UNHCR) has argued since 2014 that Libya cannot be considered a safe third country, and in 2020 declared that it does not meet the criteria to be designated as a safe place for the disembarkation of persons rescued at sea. Recalling the principle of non-refoulement, UNHCR has noted that “where a State’s coordination or involvement in a search and rescue mission, in the light of all relevant facts, is likely to determine the course of events, UNHCR considers that the negative and positive obligations of the State concerned under applicable international refugee and human rights law, including non-refoulement, may be involved.”[12]

The arbitrary and systematic detention of migrants in Libya is a known and documented practice, as well as a foreseeable consequence of interceptions at sea by LCG forces, including those that occur as a direct consequence of the obligation imposed by Italy on rescue vessels to comply with LCG instructions under the censored provisions.

Migrants without legal status in Libya are detained in accordance with the laws regulating the entry, stay and exit of undocumented persons, which are punishable by imprisonment, fines and, ultimately, deportation.[13] The laws regulating irregular entry into Libya are somewhat ambiguous and do not specify a maximum term for immigration detention, and as a result, the length of immigration detention is indefinite. Detainees typically have no access to a lawyer or any reasonable opportunity to challenge their detention or expulsion. In light of the lack of protection for asylum seekers and victims of trafficking, mass, arbitrary and indefinite detention has become the primary system of migration management in Libya.

When the LCG or other Italian-backed Libyan authorities (such as the General Administration for Coastal Security, GACS, run by the Ministry of the Interior) intercept boats at sea, they take migrants back to Libya and arrange for their systematic transfer to detention centers under the formal responsibility of the Department for the Counter of Illegal Immigration (DCIM).

The number of official DCIM detention centers fluctuates constantly, and there is no clear legal basis for their opening and closing. Although staffed by DCIM, most centers are under the effective control of the dominant armed group in the territory in which they are located. Detention centers do not regularly record the name, nationality and age of each detainee, so it is not uncommon for DCIM, as well as UN agencies and humanitarian organizations, to lose track of people as they pass from one facility to another.

Arbitrary and abusive detentions, as well as widespread impunity for these violations, are compounded by a dysfunctional judicial system and political divisions stemming from rivalries between two governments vying for legitimacy and control of the country: the Libyan Arab Armed Forces in the east and the Tripoli-based Government of National Accord in the west.[14]

HRW research since 2016 documents that, in the absence of a judiciary to ensure due process, detained migrants and asylum seekers are forced to secure release through bribery, dangerous escape attempts, and forced labor by militias or allied forces. Testimonies collected by HRW reveal that payments to smugglers include pre-payments for release in the event of detention after interception.

The conditions and treatment in Libyan detention centers under the control of the Department for the Countering of Illegal Immigration are cruel, inhuman and degrading, and could constitute the crime of torture. Persons rescued at sea and returned to Libya as a direct consequence of the censured provisions are said to be detained in such conditions, which constitute serious violations of fundamental human rights protected by international law.

People arbitrarily detained in DCIM centers face appalling conditions. In 2016, HRW interviewed 47 people who arrived in Sicily from Libya, who described serious abuses they had suffered in the country at the hands of government officials, traffickers, and members of armed groups and criminal gangs, as well as occasional collaboration between officials and traffickers. Eight of those interviewed reported being intercepted at sea on multiple occasions by Libyan forces, presumably the coast guard or navy, and then returned with other passengers, sometimes after being physically abused. Once on land, they were taken to DCIM detention centers where they faced extreme overcrowding, poor hygiene, and limited food. Reported abuses included killings, beatings, forced labor, and sexual violence against both men and women, all of which were generally not exempt from even children.[15]

In 2017, HRW interviewed more than 30 people in Sicily and aboard a non-governmental rescue vessel, collecting testimonies of serious human rights violations – including torture, sexual violence, and forced labor – both in official detention centers and during captivity with traffickers.[16] In 2018, two HRW researchers visited four large detention centers formally under DCIM control in Tripoli, Misrata, and Zuwara, documenting severe overcrowding, unsanitary conditions, poor food and water quality resulting in malnutrition, and a lack of adequate medical care; in addition, there were disturbing reports of abuse by guards, including beatings, whippings, and use of electric shocks. The researchers also documented the detention of children in inadequate conditions and allegations of sexual abuse and beatings by guards and traffickers.[17] In November 2021, HRW spoke with asylum seekers and refugees in Tripoli who described inhumane conditions, including overcrowding and lack of food and medical care, and ill-treatment that later escalated into riots and a mass escape.[18]

More recently, in September 2024, HRW collected detailed testimonies from 11 people who had recently left Libya by sea. Their accounts of deprivation, overcrowding, and abuse in detention facilities and while held by smugglers confirmed that torture and cruel, inhuman, and degrading treatment persisted in these locations. Five of those interviewed described detention and abuse at al-Nasr detention center in Zawiyah. All reported paying large sums for release; in one case, this money was part of a “package” offered by a smuggler, which included two attempts to board a boat from Libya and release from an official detention center if intercepted and returned after the first attempt.[19]

In its 2023 final report, the UNFFM stated that “there are substantial grounds to believe that migrants across Libya are victims of crimes against humanity, including killings, enforced disappearances, torture, slavery, sexual violence, rape and other inhumane acts in their arbitrary detention.”[20] The mission noted in particular that there are reasonable grounds to believe that crimes against humanity have been committed in the DCIM detention centers of Tariq al-Matar, Abu Salim, Ain Zara, Abu-Issa, Garian, Tariq al-Sikka, Al-Mabani, Salah al-Din and Zawiyah. UNFFM concludes that there is “incontrovertible evidence” of systematic torture taking place in DCIM detention centers and the trafficking hubs of Bani Walid and Sebratha, as well as substantial grounds to believe that rape, a crime against humanity, has taken place in places of detention and that migrants are being enslaved in DCIM centers.[21] A few months ago, in July 2024, the United Nations High Commissioner for Human Rights reported to the Human Rights Council that in Libya, “[t]he trafficking in human beings, torture, forced labor, extortion, starvation in intolerable conditions of detention” are “perpetrated on a large scale […] with impunity” in a context of collusion between state and non-state actors.[22]

The incontrovertible evidence of the abusive treatment of migrants by the LCG demonstrates the impossibility of designating it as a reliable actor in SAR operations with the authority to issue binding instructions to rescue vessels. This conclusion is supported by evidence of collusion between LCG units and other official security authorities and smuggling groups. In June 2018, the UN Security Council sanctioned six Libyans accused of human trafficking, including Abd al-Rahman al-Milad (also known by the alias Bija), then head of the Zawiya Coast Guard unit ,[23] and Mohamed Kashlaf, whose militias control the al-Nasr detention center. [24]In its 2023 report, UNFFM stated that it had reasonable grounds to believe that “high-level personnel from the Libyan Coast Guard, the Stability Support Authority and the Department for Countering Illegal Migration colluded with smugglers, who were linked to armed groups, in the interception and deprivation of liberty of migrants” and that “human trafficking, enslavement, forced labour, imprisonment, extortion and smuggling were sources of substantial profits for individuals, groups and State institutions.”[25] Furthermore, UNFFM collected evidence of collusion between the LCG and those responsible for the al-Nasr detention center.

Since the LCG began receiving financial, technical and surveillance support from Italy and the European Union, including the declaration of the Libyan SAR zone in 2018, observers have collected innumerable evidence of dangerous, unprofessional, abusive and violent conduct by Libyan units during operations at sea. Regardless of how Libyan forces operate at sea, their operations do not qualify as rescues under applicable international maritime law since, as established by the Court of Cassation in the Cass. judgment no. 4557/2024, they do not end in a place of safety where the lives of the rescued persons are no longer threatened and their basic human needs are met.

Applicable international law

Human Rights Watch believes that Italy's actions under the provisions of the decree, which require rescue vessels to comply with LCG orders and provide for sanctions for non-compliance, directly engage Italy's responsibilities under international law and constitute a violation of its obligations under international human rights law.

As the referral order to the Constitutional Court in the present case recognizes, Italy is bound by the prohibition of torture and inhuman or degrading treatment or punishment imposed by customary international law, a prohibition which is reaffirmed in numerous treaties to which Italy is a party, such as Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Articles 6, 7 and 9 of the International Covenant on Civil and Political Rights (ICCPR), Articles 4 and 19(2) of the Charter of Fundamental Rights of the European Union and Article 3 of the ECHR.[26] From this prohibition arises the legal obligation not to forcibly transfer a person to a jurisdiction where they would run a real risk of being exposed to the prohibited treatment. In international refugee law, this customary international principle called non-refoulement – the legal prohibition against returning or transferring a person to a place where they would be exposed to the risk of persecution or other prohibited treatment – is also reaffirmed in Article 33 of the 1951 Geneva Convention.[27]

The European Court of Human Rights (ECtHR) has repeatedly made clear in its case law that States' obligations under Article 3 of the ECHR include a positive obligation to ensure that a person under their jurisdiction is not exposed "to a real risk of being subjected to treatment contrary to Article 3 of the Convention in the event of repatriation."[28] In its judgment in Hirsi v. Italy on the situation in Libya, the ECtHR noted that “this obligation is all the more important when, as in the present case, the intermediate country is not a State Party to the Convention.”[29] As previously mentioned, in the case cited, the ECtHR held that “by transferring the applicants to Libya, the Italian authorities knowingly exposed them to treatment contrary to the Convention.”[30] Conditions and treatment of migrants in Libyan detention centers and in the hands of smugglers have remained largely unchanged since the ECHR issued its judgment. UNFMM noted in 2023 that “grave violations continue unabated and there are few signs that meaningful progress is being made to reverse this worrying trend.”[31]

In the relationship drawn up when he was speaker special from the United Nations on torture, Nils Melzen stressed that "any participation, encouragement or assistance provided" in pullback operations involving exposure to the real risk of torture and ill-treatment "would be irreconcilable with a good faith interpretation and respect for the prohibition of torture and ill-treatment, including the principle of non-refoulement."[32] Melzer also stated that "if European countries pay Libya to deliberately prevent migrants from reaching the safety of European jurisdiction, they are complicit in crimes against humanity by knowingly sending these people back to camps where rape, torture and murder reign supreme."[33]

The prohibition of refoulement applies to expulsions or returns carried out “in any manner whatsoever,” that is, by direct and indirect measures.[34] The UN Committee against Torture, the treaty body that provides an authoritative interpretation of the CAT, holds that “a person at risk should never be deported to a state from which he or she might subsequently be deported to a third state where there are substantial grounds for believing that he or she would be exposed to a risk of torture.”[35] The UNHCR Executive Committee has specifically warned against interception measures at sea that lead to chain refoulements.[36] UNHCR stresses that States should not disembark a refugee in the jurisdiction of another State where they cannot ensure their protection from further return or treatment in accordance with international human rights standards.[37]

In addition, Italy is bound by international maritime law, the provisions of which are contained in the 1974 International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search and Rescue, and which require the rescue of any person in distress at sea and their transportation to a place of safety, i.e. a place where the life of the rescued person is no longer threatened and where their basic human needs (such as food, shelter and medical care) can be met. As already reported in the order referring the present case to the Constitutional Court, the Court of Cassation has established that Libya is not a place of safety.

Facilitating the interception and forced return of migrants seeking protection to Libya also violates international refugee law, as Libya is not a party to the 1951 Geneva Convention and has no refugee law or asylum procedure. This means that returning migrants have no effective access to a remedy for their protection needs.

The decree effectively requires rescue vessels to work in concert with the LCG to intercept people in international waters, even though Italy is aware that the LCG will return these people to Libya, a country that is not a place of safety under international law, where they will be subjected to arbitrary detention, cruel, inhuman or degrading treatment and the risk of further serious human rights violations, potentially including crimes against humanity.

Compliance with LCG instructions during sea rescues contributes directly and significantly to the interception of migrants and asylum seekers by Libyan forces, resulting in the forced return of these individuals to arbitrary and indefinite detention in inhuman and degrading conditions, with the consequent exposure to the risk of human rights violations of the most serious nature.

Therefore, the implementation of the provisions under constitutional scrutiny, which provide for the application of sanctions to the master or owner of the vessel for failure to comply with the instructions provided by a national authority even when this implies, as in the case of the Libyan national authority, the risk of serious violations of the fundamental rights of the rescued persons, is in direct conflict with Italy's obligations under customary and conventional international law.