The Applicability of Human Rights Treaties to Search and Rescue Operations in the High Seas: A Landmark Decision of the UN Human Rights Committee
Human Rights Committee, A.S. and others v. Italy and Malta, communication n. 3043/2017, Decision (Malta, CCPR/C/130/D/3042/2017) and Views (Italy, CCPR/C/128/D/3043/2017) of 27 January 2021
The paper focuses on the well-known issue of the so-called “criminalization of solidarity” with migrants and asylum seekers from a twofold perspective: on the one hand, it describes the practical dimension of the subject matter, examining the most recent cases and the legal problems thereof, often cross-cutting disciplines belonging to different brances of the legal system; on the other hand, it highlights a number of issues of legitimacy which, in the author’s opinion, affect both the European rules on facilitating irregular migration and the national criminal provisions implementing them, starting from article 12 of the Italian consolidated law on immigration.
The current status of the protection seekers is similar, recalling Arendt, to the one of individuals enjoying in theory human rights, but without any kind of protection in practice. Such a de facto statelessness derives also from the lost legal-dogmatic autonomy of constitutional asylum, whose original purpose was the political emancipation of the seeker, in principle entitled even to citizenship. The purpose of the humanitarian asylum is, in turn, mainly to aid a naked life suffering and traumatized. The decline of humanitarian rationale and the increasingly prominent role of security rationale, the de-individualization program of the protection seeker reaches its peak, becoming, especially after the ‘security’ law decrees in Italy, a sort of institutional racism
The paper examines substantive and procedural safeguards surrounding personal freedom of foreign nationals in the area of irregular immigration control, focusing on de facto detention at the border. In the lack of a general habeas corpus remedy in Italy, several tools against coercive measures extra ordinem are examined, in light of the most recent case law on detention in the hotspot centers as well as aboard military and private ships in the context of the so called “closed ports policy”. The paper analyzes both the border authorities’ praxis and the most recent legislative measures, from an interdisciplinary standpoint that takes into account criminal law and administrative law principles, as well as the supranational human rights protection profiles
The contribution, through an analysis of the structure of article 12 of the Italian Consolidated Text on Migration (criminalising the facilitation of illegal entry) and of article 601 of the Italian Criminal Code (criminalising trafficking in human beings), aims at demonstrating that the two provisions constitute vital gear in a legislative mechanism designed to contrast human mobility as a whole. More specifically, the contribution follows two parallel lines of analysis: the first one aimed at highlighting the ways the anti-smuggling law can be applied in order to enable the prosecution of humanitarian actors, while the second one points out the way in which the abuse of the same provision permits to the Italian authorities to avoid the recognition of trafficking victims, consequently resulting in the missed fulfilment of the international obligations contracted with the signature and ratification of the Palermo Protocols.
Smuggling and trafficking of migrants: the crux of jurisdiction between territoriality and extraterritoriality
The Italian judiciary has recently dealt with smuggling and trafficking of migrants, in the lack of legal tools in the African countries where such phenomena are rooted. This paper, after a critical review of the proceedings where NGOs were criminalized, analyses some case law, distinguishing between territorial and extraterritorial misconduct. In the former group of cases, the notion of territoriality is broad and it encompasses facilitation of illegal immigration in international waters – a crime under article 12 of Legislative Decree 286/1998 – through the theory of the indirect perpetratorship. With respect to extraterritorial facts, the legal provision often applied is article 7 of the Italian criminal code, in connection with international and domestic rules, as well as article 10 of the Italian criminal code concerning crimes perpetrated abroad by a foreigner to the detriment of another foreigner. The internationalization of the criminal law approach to the issue is nevertheless the new path, even to involve more the international community in dealing with a cross-border phenomenon that affects in the same way western countries
Although in the public debate immigration is considered as an emergency, this paper begins taking into account the real data of such a phenomenon, strongly decreased in the past 18 months. It is then examined the issue of the illegal immigrant from a criminal law standpoint, in order to overcome the idea of reducing it to trafficking, focusing rather on the human nature of each individual, always involved in the crime of aiding and abetting illegal immigration, not being the perpetrator of the said offence. In light of the above the rights in the crucial phase of immigrants' reception can be better assessed, focusing then on administrative and criminal policies. In conclusion the paper examines the rescue at sea of illegal immigrants, pointing out some contradictions of the most recent criminal policy on the issue
Illicit Traffics in the Mediterranean Area. Prevention and Repression in National, European and International Law
The text presents the topics of the illicit traffics in the Mediterranean area, which was the subject of the 8th Training Course "Giuliano Vassalli" for PhD Candidates, held in Noto in 2017. The remarks are complemented by references to the following contributions of the participants selected for the pubblication.
Freezing and Confiscation Orders as a Way to Combat the Smuggling of Migrants, in the European and International Context
Freezing and confiscation orders play a significant role as a way to combat smuggling. The need to deal with crimes which are committed by members of organizations operating in more than a State, and acting in such a way as to evade the jurisdiction of the State of arrival of migrants, makes cooperation at European and international level fundamental. This work examines some relevant aspects of this kind of cooperation, seeking to highlight the most problematic issues connected.