The joint report and communication to the International Criminal Court by three non-governmental organizations call for investigations on crimes against humanity
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