In an order dated 4 July, the Council of State rejected the precautionary petition by civil society organisations to suspend the transfer of the patrol boats to the Tunisian National Guard, postponing a final decision on the merits until 21 November. As in the case of Libya, the financial, technical and logistical support provided by the Italian authorities to the Tunisian border police is leading to an increase in violations of the fundamental rights of migrants, restricting their freedom of movement and making it increasingly difficult for them to flee the country in order to find adequate protection.

As the plaintiff associations, we believe it is necessary to open a public debate on the issues raised by this court case. It could be an opportunity to discuss the legal concepts at stake - safe place of disembarkation and safe country of origin -, the dynamics that legitimise, also legally, the actions that form the basis of the externalisation policy, and the strategies to prevent Tunisia, thanks to the Italian and European contribution, from becoming a new Libya: a place of systematic and structural abuse and exploitation of migrants, where policies to control mobility are relegated and delegated.

The dispute over the transfer of patrol boats to the Tunisian National Guard

Last December, the Italian government ordered the transfer of six coastal patrol boats to the Tunisian National Guard (G.N.). Last March, a group of associations lodged an appeal with the Administrative Court, asking the judge to assess the legality of the acts by which the Ministry of the Interior ordered the transfer of new patrol boats to Tunisia, given the extremely serious human rights violations committed by the Tunisian authorities against migrants. (1)

By Order No. 4848/2024 of 4 July 2002, the Council of State decided not to grant the request for precautionary measures made by the associations, which had asked for the transfer of the boats to be suspended pending the decision of the administrative judge on the contested acts, in order to suspend their harmful effects pending a thorough examination of their legality.

In particular, the Council of State, which on 18 June had suspended the dispatch of the first three patrol boats as a precautionary measure, later upheld the deductions made by the lawyers, taking the view that the transfer of the patrol boats and the related training initiatives for the personnel of the Tunisian National Guard could contribute to "raising the level of protection and security of migrants at sea, which is all the more necessary following the establishment of the Tunisian SAR zone, given the high level of professionalism of the Guardia di Finanza in carrying out the activities in question".

The order also agrees with the defence when it states that the critical issues relating to human rights violations by Tunisia, and thus the causal contribution to the commission of such violations by the equipment of the country's authorities, 'have so far only led to requests for clarification and guarantees of respect for human rights by international bodies'. The country's security is confirmed by Tunisia's inclusion on the list of "safe countries of origin" approved by decree of the Ministry of Foreign Affairs on 7 May 2024.

In the light of this order, its predecessors (2) and the forthcoming decision on the merits of the case by the administrative judge, who has scheduled the hearing for 21 November 2024, we feel it is necessary, as the plaintiff associations, to open the public debate on some of the issues that have been raised by this litigation.

The legal concepts of 'safe country of origin' and 'place of safety for disembarkation' (POS)

First of all, we think it is essential to focus briefly on the difference between the concepts of safe country of origin and safe country of disembarkation. The former, introduced into Italian law by Legislative Decree 133 of 2018, refers to the safety of a country for the asylum seeker who is a national of that country or who has established his or her habitual residence there, unless he or she has invoked "serious reasons to believe that that country is not safe because of the particular situation in which the same applicant finds himself or herself".

By contrast, a place of safe disembarkation (POS) is referred to as the place where a rescue operation can be considered to be reasonably and lawfully completed, as enshrined in international conventions (3) and confirmed by case law (4). For a place to be defined as a 'place of safe disembarkation' for persons rescued at sea, it is necessary that they are not returned illegally, that they are not at risk of serious harm or torture and inhuman and degrading treatment, and that they have access to sufficient forms of protection.

The recent declaration by Tunisia of its own zone of responsibility for search and rescue operations (SAR zone) gives rise to further concerns: as in the case of Libya (5), the strengthening of border authorities through their training, funding and equipment by the EU and Italy does not imply any guarantee as to the modalities of intervention and respect for human rights. On the contrary, the Libyan case shows how increasing the powers of these authorities can lead to a greater erosion of the rights of people intercepted or rescued at sea.

If, on the one hand, Tunisia's inclusion in the list of safe countries of origin raises a number of questions, including legal ones (6), on the other hand, it should be noted that the same fact sheet on Tunisia, prepared by the Ministry of Foreign Affairs, reports that 'In July, UN experts complained about alleged discriminatory treatment of sub-Saharan migrants, including alleged collective expulsions. At the 54th session of the Human Rights Council, the UN High Commissioner for Human Rights drew attention to cases of migrant deaths at the Libyan-Tunisian border. These deaths allegedly occurred after the Tunisian authorities left some 2,000 migrants in the area without providing them with water, food and protection'. The same Italian authorities responsible for analysing the country's situation for inclusion in the list therefore report the concerns expressed by international bodies about the treatment of migrants in Tunisia.

The pronouncements of international bodies

With regard to the concerns expressed by international bodies and taken into account when assessing the legitimacy of the Italian government's actions, the United Nations High Commissioner for Human Rights, as well as a number of special rapporteurs, working groups and committees, have issued a broad condemnation of what is happening in Tunisia to the detriment of migrants:

We are concerned that the intensification of activities and projects that would increase the interception of migrants at sea and their illegal return to Tunisia and dangerous third countries, where they risk persecution and violations of the right to life, torture and other ill-treatment, human trafficking and enforced disappearance, constitutes a violation of the principle of non-refoulement. Such practices would violate international legal obligations, including the principle of non-refoulement, which is applicable under treaty law and customary international law and constitutes a jus cogens norm.

The fact that the Tunisian authorities are responsible for widespread abuses and violence that expose sub-Saharan migrants to a high risk of arbitrary detention, arbitrary expulsion and mass deportation to Libya and Algeria is considered certain and well documented by international bodies, which have repeatedly requested information and clarification from the Tunisian government, which has so far failed to provide the requested answers.

A year ago, a UN panel of experts called on 'the authorities to immediately halt any further deportations and to maintain and increase humanitarian access to a dangerous area on the Tunisian-Libyan border where many people, including pregnant women and children, have already been deported'.

In addition, last year the UN Human Rights Committee and the UN Committee against Torture, to which certain groups of migrants subjected to deportation and forced relocation have appealed, urged the Tunisian government to take precautionary measures to protect them.

Violations of migrants' rights in Tunisia

The vulnerability of migrants in Tunisia is reflected in the number of arrivals by sea: in 2023, 62% of arrivals in Italy via the central Mediterranean route came from Tunisia. These were 97667 persons, only partly of Tunisian origin: almost 18,000 persons were of Guinean origin, followed by 17486 persons of Tunisian origin and 15584 from Côte d'Ivoire.

On the one hand, the situation of persecution and violence experienced by migrants in Tunisia encourages them to try to leave the country; on the other hand, the border authorities, supported by Italian and European equipment and funding, carry out an increasing number of interceptions and return people to land. As extensively documented in testimonies and reports (7), the Tunisian G.N. acts in collusion with trafficking networks and adopts violent methods of intervention at sea, such as using guns and sticks to threaten migrants, stealing boat engines and other dangerous practices that cause shipwrecks and deaths. Once on land, migrants are systematically deported to Libya and Algeria (8), where they risk chain deportation - e.g. to Niger (9) - or being illegally detained, exploited and tortured in Libyan prisons, or risking their lives in border areas without access to basic necessities and care (10).

There is an urgent need for a debate, in dialogue with Tunisian civil society, on the question of Italian responsibility for the abuse and violence suffered by migrants in Tunisia, where, as in Libya, mechanisms of violence and systematic exploitation are structured, supported and encouraged by European policies that block mobility.

Notes:

(1) For more information, see the following articles and reports: https://www.asgi.it/asilo-e-protezione-internazionale/48-milioni-di-euro-per-fermare-i-migranti-dalla-tunisia-la-societa-civile-italiana-presenta-ricorso-al-tar/; https://www.asgi.it/asilo-e-protezione-internazionale/motovedette-alla-tunisia-il-consiglio-di-stato-accoglie-listanza-cautelare-della-societa-civile/; https://www.asgi.it/wp-content/uploads/2024/07/Articolo-Tunisia.docx.pdf

(2) See: https://www.asgi.it/asilo-e-protezione-internazionale/motovedette-alla-tunisia-il-consiglio-di-stato-accoglie-listanza-cautelare-della-societa-civile/; https://www.unita.it/2024/06/22/dare-motovedette-alla-tunisia-vuol-dire-violare-la-legge/

(3) See the definition of 'place of safety' in paragraph 1.3.2 of the 1979 Hamburg SAR Convention, contained in the 'Guidelines on the Treatment of Persons Rescued at Sea' adopted by the IMO Maritime Safety Committee in May 2004: https://wwwcdn.imo.org/localresources/en/OurWork/Facilitation/Documents/MSC.167%20 (78).pdf; For case law on this point, see next footnote.

(4) On this point, see the following case law: Court of Crotone, I sez. civ., 26 June 2024; Court of Rome, XVIII sez. civ., 26 June 2024; Court of Cassation, V sez. pen., 1 February 2024, no. 4557.

(5) On which case law has been widely developed: see previous footnote.

(6) See the order for preliminary reference to the Court of Cassation of Rome (no. 2685/2024) on the possible disapplication by the magistrate of the ministerial decree establishing the list of safe countries of origin, with reference to Tunisia.

(7) For more information, see https://www.hrw.org/news/2023/10/10/tunisia-african-migrants-intercepted-sea-expelled; https://www.infomigrants.net/fr/post/48419/tunisie--les-gardecotes-accuses-de-voler-les-moteurs-des-migrants-et-de-faire-chavirer-les-embarcations. Finally, see the report 'Interrupted Sea', published in June 2024 by Watch the Med Alarm Phone in collaboration with Tunisian civil society actors: https://alarmphone.org/wp-content/uploads/2024/06/Mare-interrotto-IT.pdf.

(8) As widely documented by UN bodies (see above), NGOs such as Human Rights Watch and the World Organisation Against Torture - OMCT (https://omct-tunisie.org/2023/12/18/les-routes-de-la-torture/) and journalistic investigations (https://www.lighthousereports.com/investigation/desert-dumps/) 

(9) https://alarmephonesahara.info/en/blog/posts/assamaka-september-and-october-2023-frequent-mass-deportations-from-algeria-to-niger-continue-deportees-trapped-in-miserable-conditions;

(10) On the intensification of repression against migrants and civil society organisations since May 2024, see https://www.amnesty.it/tunisia-aumenta-la-repressione-di-organizzazioni-della-societa-civile-e-migranti/#:~:text=17%20Maggio%202024&text=Amnesty%20International%20ha%20dichiarato%20che,e%20anche%20contro%20i%20giornalisti; https://www.meltingpot.org/2024/05/lescalation-della-deriva-autoritaria-del-regime-tunisino-di-kais-saied/;

Cover photo: Khaled Nasraoui