This article is published in connection to an earlier 2017 article discussing the economic drivers of migration.
On April 11, 2023, Italy declared a state of emergency to tackle the surge of immigration since the start of the year. There has been 300% increase in arrivals compared to the first three months of 2022,1“Migranti, Cosa Cambia Con La Dichiarazione Dello Stato Di Emergenza.” Il Sole 24 Ore, April 12, 2023. https://www.ilsole24ore.com/art/migranti-cosa-cambia-la-dichiarazione-stato-emergenza-AEUevGGD. and tragedies have also piled up: the UN’s International Organisation for Migration documented 441 deaths in the Mediterranean since January, the highest number in six years.2“Deadliest Quarter for Migrants in the Central Mediterranean since 2017.” International Organization for Migration, April 12, 2023. https://www.iom.int/news/deadliest-quarter-migrants-central-mediterranean-2017.
A migration ‘problem’ does exist, given the staggering death toll. But Italy’s state of emergency will not quell the flow of people seeking refuge across the Mediterranean. Rather, the expanded powers assumed by the government will simply allow it to expedite the expulsion of migrants towards countries where they face abuses of the most basic human rights.
Prime Minister Giorgia Meloni’s decree would be concerning even if Italy had a history of abiding by international law, but it is doubly so when considering the country’s track record: Italy has consistently violated the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) since the 1990s in its treatment of migrants, asylum seekers, and refugees.
Not only this, but it will all occur under the ambivalent eye of the European Union who, on one hand, occasionally chastises the Italian government over its treatment of refugees, but then turns a blind eye by allowing Italy to carry out its dirty work and use regressive policies to curb migration from the Global South.
Italy has been repeatedly chastised by the Committee Against Torture (CAT) and the European Court of Human Rights over violations of the principle of ‘non-refoulement’. This term is defined in Article 3 of UNCAT: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”3United Nations General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85.
After waves of migration over the four decades since ratification, however, Italy has failed to respect Article 3, going as far as signing bilateral migration agreements with states involved in egregious human rights violations, most recently through its 2017 ‘Memorandum of Understanding’ with Libya. Italy continues to conduct push-back operations and expedited repatriations to these countries, a process that will be streamlined even further under Meloni’s new emergency powers.
The relationship between Italy and the Committee Against Torture is an unusual one, in that the country’s criminal code did not even include a definition of torture until 2017. Since then, Italy has been heavily criticised for the vagueness of the law’s wording and its consequent potential for abuse.4Associazione Antigone Onlus & World Organization Against Torture, Submission to the UN Committee Against Torture Concerning Italy, 62nd Session, civil society submission to the United Nations Committee Against Torture (9 October 2017), Associazione Antigone Onlus & World Organization Against Torture, Submission to the UN Committee Against Torture Concerning Italy, 71st Session, civil society submission to the United Nations Committee Against Torture (22 June 2020), and Amnesty International, Submission to the United Nations Committee Against Torture, 62nd Session, civil society submission to the United Nations Committee against Torture (9 October 2017). Law 110/2017 states:
Using serious violence or grave threats, or acting with cruelty [which] causes acute physical suffering or a verifiable psychological trauma (…) is punished with four to ten years of imprisonment if the offense is committed by more than one action or if it causes an inhuman and degrading treatment for the dignity of a human being.
The law focuses its punishment on multiple acts of torture, it does not define standards of ‘verifiability’ of trauma, it does not accord with CAT with respect to coerced information, intimidation, or discrimination; and while the Convention gives particular prominence to acts perpetrated by public officials, this does not factor into the main text of Italy’s definition.
The complete absence of a legal definition of torture for the first 33 years of the Convention and an imprecise one currently on the books has contributed to a flawed application of the principle non-refoulment, given that the criminal code and the definitional standards set by the Convention have not even been in accordance.
Since the ratification of the 1984 Convention, Italy’s violations of the principle of non-refoulment have been well-documented: after the outbreak of war in Albania in 1997 and the consequent rise in migration across the Adriatic, Italy’s navy began “patrolling the Adriatic to ‘convince’ those fleeing Albania to return home”5Perlmutter, T., 1998. The Politics of Proximity: The Italian Response to the Albanian Crisis. The International Migration Review, 32(1), pp.203–222. without establishing whether they may be in danger upon re-entry.
The Italian government had justified its actions by claiming that those fleeing Albania were economic migrants rather than refugees – a practice we should all be familiar with by now – thus expediting their expulsion or push-back at sea, but already at the time “this policy did not convince the United Nations High Commission on Refugees (UNHCR) either that refugee claims would be heard or that international laws against refoulement would be respected.”6Perlmutter, T., 1998. The Politics of Proximity: The Italian Response to the Albanian Crisis. The International Migration Review, 32(1), pp.203–222.
Beginning in the 1990s, Italy had stated that the problem of migratory flows was economically unsustainable, and thus that strict controls around illegal immigration were needed. It then claimed that expulsions tied to the 2002 Bossi-Fini Law [link in Italian] were in line with UNCAT given that is provisions did not apply to “political asylum-seekers or those applying for refugee status or in cases involving the adoption of temporary protection reasons for humanitarian reasons.”7United Nations Committee against Torture, Fourth period reports of States parties: Italy, CAT/C/67/Add.3 (11 May 2005).
However, Unione Forense, an association of Italian human rights lawyers, noted that the Bossi-Fini Law facilitated expulsions to “countries in which there is a real risk that they could be deprived of their life to torture or inhuman or degrading treatment.”8Unione Forense per la Tutela dei Diritti dell’Uomo, Observations on the fourth period report of Italy to the Committee Against Torture, civil society submission to the United Nations Committee against Torture (n.d., 2007). Concerns were compounded by the fact that the law could be enforced immediately at the border (push-back) and that regional administrative tribunals were barred from ordering to stay its execution.
CAT had expressed a particular concern at “reports of forcible and collective expulsions from the island of Lampedusa to Libya of persons not of Libyan origin”9United Nations Committee against Torture, Consideration of reports submitted by States parties: Italy, CAT/C/ITA/CO/4 (16 July 2007). and noted that judicial review was crucial to non-refoulement obligations, recommending that Italy reconsider its new expulsion procedures. An example of the gravity of the situation in Lampedusa: in one case, out of 1787 people who had arrived on the island, 1153 were rapidly denied entry and deported to Libya despite the presence of Egyptians, Moroccans, and Bangladeshis with no connection to the country.
Lampedusa, sitting halfway between Tunisia and Sicily, continues to be of central importance: it is also a focal point of the 2023 state of emergency. It has been singled out as a “hotspot”“10Comunicato Stampa Del Consiglio Dei Ministri n. 28.” Governo Italiano. Presidenza del Consiglio dei Ministri, April 13, 2023. https://www.governo.it/it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-28/22332. necessitating even more expedited processing of migrants and extraditions under the Meloni government.
This ongoing relationship between Italy and Libya is particularly concerning. Despite Italy’s 2016 assurances that “it has been suspended whatsoever forms of cooperation with Libya [sic],” and that “Italy has never signed a re-admission agreement with Libyan Authorities,”11United Nations Committee against Torture, Combined fifth and sixth periodic reports of States parties: Italy, CAT/C/ITA/5-6 (11 April 2016). it then signed a Memorandum of Understanding with the country scarcely a year later centred around the repatriation of migrants. The agreement was concluded with the blessing of the European Union, in what was seen as a crucial tool to stem the flow towards Europe during the ‘migration crisis’ of the mid-2010s.12Italy-Libya Memorandum of Understanding. The Search and Rescue Observatory for the Mediterranean (SAROBMED). Available at: https://sarobmed.org/italy-libya-memorandum-of-understanding/.
The consequences of this European-Libyan cooperation are dire. A 2021 Amnesty International report meticulously documented the results of the arrangement: migrants refouled to Libya face extortion and forced labour, torture, excessive use of force, unlawful killings, rape and other forms of sexual and gender-based violence, and cruel and inhuman conditions of detention. The AI press release, ‘Horrific violations in detention highlight Europe’s shameful role in forced returns’, is available here.
Nor are these conditions something new: the report covers decade-long violations. As stated by Diana Eltahawy, Deputy Director for the Middle East and North Africa at Amnesty International:
“People intercepted at sea and returned to Libya (…) are immediately funnelled into arbitrary detention and systematically subjected to torture, sexual violence, forced labour and other exploitation with total impunity. Meanwhile, Libyan authorities have rewarded those reasonably suspected of committing such violations with positions of power and higher ranks, meaning that we risk seeing the same horrors reproduced again and again.”
Considering the above, it bears repeating: Italy has a current repatriation agreement with Libya sponsored by the EU,13“Italy-Libya Agreement: Five Years of EU-Sponsored Abuse in Libya and the Central Mediterranean.” Médecins Sans Frontières (MSF) International, January 25, 2022. https://www.msf.org/italy-libya-agreement-five-years-eu-sponsored-abuse-libya-and-central-mediterranean. in full knowledge of the abuses. The agreement was extended in February 2023. The Libyan coastguard continues to receive financial and technical support to intercept migrants and refugees, who are then subjected to what an independent UN fact-finding mission in 2020 called “crimes against humanity.”14“Independent Fact-Finding Mission on Libya.” UN Human Rights Council. OHCHR, August 2022. https://www.ohchr.org/en/hr-bodies/hrc/libya/index.
Meloni’s state of emergency will speed up the screening process of migrants and expedite expulsions through a processing system that has already been found lacking on multiple occasions at the European Court of Human Rights. See, for example, 2012’s Hirsi Jamaa and Others V. Italy, which found that “the Italian border control operation of ‘push-back’ on the high seas, coupled with the absence of an individual, fair and effective procedure to screen asylum-seekers, constitutes a serious breach of the prohibition of collective expulsion of aliens and consequently of the principle of non-refoulement.”15European Court of Human Rights, Judgment in the Case of Hirsi Jamaa and Others V. Italy, Application no. 27765/09, Strasbourg (23 February 2012).
Using new emergency powers to fast-track a broken judicial process will not fix it, nor will it change the circumstances that lead migrants to leave their countries of origin.
What can be done?
The following would occur in a best-case scenario: Italy could begin by amending the definition of torture in its criminal code to accord with the Convention Against Torture. As it stands, the vague definition gives unacceptable latitude in deciding whether the countries of origin or departure satisfy human rights standards for extradition.
Assessments for expulsion and refoulement must be made case-by-case, and the subjects should be informed of their rights, through an interpreter if needed. Italy must also begin reporting the number of expedited cases and the reasons for denying entry or repatriating applicants for asylum.
Finally, Italy must retract or review its memoranda of understanding with countries engaging in human rights violations: to begin with, an immediate review of the agreement with Libya should be undertaken, and expulsions should cease while the assessment is being conducted. Only with these revisions will Italy be able to adequately assess the appropriateness of repatriation to countries of origin.
But this is not an ideal world, and the precise opposite will happen in the next six months of the state of emergency: expulsions will be expedited to “decongest” the Lampedusa point of arrival, with the Italian government forecasting an “ulterior increment of departures in the next months.”16“Comunicato Stampa Del Consiglio Dei Ministri n. 28.” Governo Italiano. Presidenza del Consiglio dei Ministri, April 13, 2023. https://www.governo.it/it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-28/22332.
There is one point of argument, however, where the Meloni government has a leg to stand on: Nello Musumeci, the Minister for Civil Protection and Maritime Policies, said of the emergency measures, “to be clear, this does not resolve the problem, whose solution is tied exclusively to a responsible and informed intervention on the part of the European Union.”17“Stato Di Emergenza per I Migranti: Durerà 6 Mesi, Varrà Su Tutto Il Territorio Nazionale.” Agenzia Nazionale Stampa Associata (ANSA), April 11, 2023. https://www.ansa.it/sito/notizie/politica/2023/04/11/stato-di-emergenza-sulla-migrazione-durera-6-mesi-varra-su-tutto-il-territorio-nazionale_5a727192-c2a5-44a0-b683-da9d5278db7e.html.
The EU is aware of Italy’s track record with migrants, of the horrifying consequences of push-back to Libya, as well as the fact that the new state of emergency will aggravate non-refoulement violations and endanger the safety of migrants both at sea and upon expulsion. Yet, it limited itself to the following statement in response Meloni’s decree: “The European Commission has taken note of Italy’s decision to declare a state of emergency over migrants (…) it is a decision of a national nature and stems from a highly difficult situation caused by the increase in the number of arrivals.”18“Migrants: Eu ‘in Contact’ with Rome over State of Emergency.” Agenzia Nazionale Stampa Associata (ANSA), April 12, 2023. https://www.ansa.it/english/news/politics/2023/04/12/migrants-eu-in-contact-with-rome-over-state-of-emergency_73e2477e-733e-4485-b573-327b0a06fad9.html.
While often touting a humanitarian line, the EU can quietly relieve some pressure from its migration headache by letting Italy and its far-right, anti-immigrant government take international scorn with nothing but perhaps some pearl-clutching and light finger-wagging scheduled further down the line. The real work of documenting abuses and monitoring the Italian government will be left to Italian civil society organisations like Associazione Antigone, whose shadow reports to the Committee Against Torture provide a depth of on-the-ground oversight that holds the Italian government to account in ways that international institutions either cannot, or choose not to. Their work has been referenced throughout this article.
To be in any way effective, the EU must provide additional support for search-and-rescue operations in the Mediterranean and aid in the housing and assessment of migrants’ status to prevent overload to Italian resources which remain unable to adequately process arrivals.
But this help won’t arrive. In response to requests for assistance in dealing with increased migrant influx, the EU simply reiterated that “Italy is one of the main beneficiaries of the fund for migration and integration.”19Migrants: Eu ‘in Contact’ with Rome over State of Emergency.” Agenzia Nazionale Stampa Associata (ANSA), April 12, 2023. https://www.ansa.it/english/news/politics/2023/04/12/migrants-eu-in-contact-with-rome-over-state-of-emergency_73e2477e-733e-4485-b573-327b0a06fad9.html. Read: no more help is coming. Meloni will solve it her way.