The Italian Constitutional Court’s recent ruling upholding a law that imposes sanctions on sea rescue groups casts a dark shadow over sea rescue, but that cloud has a silver lining: the court essentially said that the imperative to save lives justifies rescue ships disregarding state orders that could endanger migrants’ lives.
Validating the power of Italian authorities to impound NGO ships undoubtedly impedes rescues—it means valuable time lost when those ships could be conducting search and rescue operations and imposes financial and reputational burdens on NGOs struggling to do what’s right.
Yet the Constitutional Court laid down important principles that should guide how authorities exercise — and judicial authorities review — the power to sanction rescue organizations in the future.
First, the Court took into account jurisprudence from the European Court of Human Rights that requires courts to examine the severity and other pertinent factors of any sanction, to determine if it is equivalent to criminal punishment, even if it is labeled as civil or administrative. As a result, the Court correctly categorized impounding rescue ships as a punitive sanction.
In doing so, the Court implicitly acknowledged the criminalization of rescue at sea and signaled that the due process safeguards and higher evidentiary standards of criminal law are applicable. This should restrain if and when authorities seek to impound ships in the first place and afford rescue NGOs better defense rights when subjected to these measures.
Second, the Court stated, “an order that leads to a violation of the primary obligation to save human life and is likely to endanger it is not binding, and failure to comply with it cannot be sanctioned.” This is crucial because the principal reason Italian authorities use to impound rescue ships is an alleged failure of the crew to comply with instructions from the abusive Libyan Coast Guard. As we argued in Human Rights Watch’s amicus brief, requiring rescue ships to follow orders from the Libyan Coast Guard risks doing exactly that – endangering life in violation of the fundamental international law principle of nonrefoulement that prohibits sending individuals to places where they would likely face serious harm.
With the Court’s clear affirmation that illegitimate orders need not be obeyed, rescue groups should have stronger grounds to appeal detention orders. The ruling will not end the challenges rescue organizations face in Italy, but it should make authorities think twice about going after them and it should ensure they have a stronger legal protection if they end up in court.