Human rights vs populism | Katrine Camilleri

The death of Mamadou Kamara and the arraignment of three army officers accused of his murder has elicited a "mixture of very strong emotions... mostly of sadness and fear" among the immigrant community, according to Dr Katrine Camilleri, Director of the Jesuit Refugee Service Malta.

Kamara's death has served to further undermine "their sense of safety and security and their trust in the system which is meant to protect them".

The fact that the alleged murder occurred in a government custodial facility contributed to this sense of increased vulnerability experienced by the migrant community.

Added to this is a sense of "indignation and anger that someone could have died like this" as well as "a strong thirst for justice" and that justice is not just seen to be done but is followed up by concrete action.

Camilleri is satisfied with the response of the authorities to this incident.

"The government has done what it could do... we appreciate the strong statement by the Prime Minister in favour of human life and dignity and the setting up of an independent inquiry."

What is positive about the inquiry led by Judge Geoffrey Valenzia is the "broad mandate" given to it "to look in to not just the incident itself but also the failing of the system which could have led to this incident and what could be done to prevent such incidents from happening".

The most important aspect of the inquiry is that the inquiry will be looking at the bigger picture.

"The inquiring judge is required to look at the organisational structures for the administration of detention centres, to identify what within this system led to this incident."

Another positive aspect of the inquiry is the mandate to examine whether recommendations made in the previous inquiry into the death of a Nigerian migrant awaiting deportation were actually implemented.

On Tuesday, NGOs working with migrants had a meeting with the Prime Minister.

"We appreciated this opportunity to voice our recommendations and positions and explain our perception of the bigger picture."

What Camilleri clearly does not want to happen is a situation, which leads to the "demonisation" of people working in detention services.

I point out that another risk is that some elements will try to glorify these persons for the wrong reasons, thus associating the army with racist views.

"We appreciate the very difficult work which they have to do, something which few people who have not seen first hand the situation in detention and the conditions in which they work are in a position to do."

She also points out that those working in detention centres are doing work for which they were never trained to do. 

"Some, such as the army officers, did not even choose to do this job - they joined the army for completely different reasons and were assigned to do this job."

She describes the work soldiers and other officers are expected to do as very demanding and stressful "not only physical but also emotionally", as they have to constantly face people who are locked up and "who are frustrated and totally dependent on you".

She also praises those people who "do a very good job and care for the migrants as best and sometimes even go out of their way to make a difference in their life".

Camilleri sees a silver lining in the forthcoming inquiry.

"This may lead to increased awareness not just on the importance of their work but also for the need of training and support."

Camilleri insists that this is not just a question of training detention centre personnel but of providing ongoing support and the resources necessary to do the job.

"When you are doing a job which is so emotionally demanding, you need support from the system."

Camilleri agrees with me that the detention regime, which sometimes sees hundreds of migrants herded in closed centres, some of which serving up to 18 months, makes reforms envisioning individual support systems even more difficult to implement.

"We have major issues with the detention regime itself... but if you are expecting anyone to do this job, as an employer it is your responsibility to care for your employees. It is ultimately the responsibility of the management to provide support for those doing this job."

Is the detention policy prone to
create such incidents?

Camilleri makes it clear that JRS's major objections to detention policy are based on human rights concerns it raises.

She points out that wherever people are "deprived of their liberty" there is a higher risk of them being subjected to ill treatment and abuse. It is precisely because of this risk that the Council of Europe's Committee for the Prevention of Torture regularly visits facilities where people are detained to check whether there are adequate structures in place to protect people from abuse. This applies not just to detention centres but also to prisons and mental institutions.

"It would be naïve to assume that there is any custodial facility which is immune - and the only way to avoid this abuse to have a proper system to deal with complaints effectively and ongoing monitoring to ensure that these incidents are prevented, something which is lacking."

Following the incident, some people - myself included - have associated the incident to the widespread climate of racism, which has somewhat desensitised part from the population from any empathy towards migrations. Others - particularly Labour - have focused on the administrative failures of the custodial system.

Camilleri distinguished between the incident itself - on which she says it would be "presumptuous" to make any assumption and the public's reaction to it.

"We have allowed ourselves to perceive migrants as less than human... to the extent that a mentality justifying inhumane policies on the basis of the national interest is creeping in... the mentality that it is okay to question the applicability of human rights standards if this is perceived to be in the national interest."

According to Camilleri, this is evident not in the incident itself but in the response to the incident.

"The response to the incident is very telling and says a lot about our perceptions of migrants. This is very worrying, and has to be urgently addressed."

One factor leading to this climate is the discourse used by politicians.

"The fact that we use terms like persons being "illegal" sends the message that these persons do not even have a right to exist. Even the use of terms like "burden" and "massive influx" sends a negative message."

But it is not just a question of discourse, but also of policies. In fact, both major political parties concur in supporting the current detention regime "which sets migrants apart, so apart that they are locked up". This policy in itself sends an "exclusionary message".

The country's entire approach to immigration is largely restrictionist.

"We constantly send the message that these people are not here to stay but are guests who stay here for a while..."

This approach is not limited to asylum seekers, but also to people who come here legally with a work permit with the aim of establishing some kind of permanence. 

"The amount of bureaucratic obstacles make it very difficult for these people to even consider staying here in the long term."

Even when it comes to beneficiaries of humanitarian protection and refugees, our emphasis is always on resettlement and relocation rather than inclusion in Maltese society.

"The idea is that we will protect you until you can move on... all this contributes to the perception that migrants are much more than we can handle, a burden which we have to carry until they are sent elsewhere."

The lack of empathy towards migrants is further compounded by the fact that the majority of people do not have any meaningful contact with them.

"They do not have first hand experience. They do not know enough to reach their own assessment. They base their assessment on what they hear."

Detention itself segregates migrants from the rest of the community sending a clear message of exclusion. For Camilleri, detention is not only negative but also unnecessary, as she points out how migrants in vulnerable situations - such as minors, and families with small children - tend to be released from detention "swiftly".

"If alternatives to detention are working for these people, how can we justify detention for others? Especially when you consider that after a maximum of 18 months, most migrants who arrive in Malta are released to live in the community."

But what makes the issue even more pressing is that Malta's policy has been criticised by reputable human rights organisations. Crucially, in the case of Khaled Louled, the European Court of Human Rights found that Malta's policy of detaining migrants awaiting deportation for periods of up to 18 months was in a breach of their human rights.

This leads Camilleri to believe that the only justification for migration is a political one; that it is simply aimed to allay popular insecurities and irrational fears.

"In our view as NGOs working in the field of immigration, the only argument which supports the current policy of detention is the populist one. For even from a security perspective, if the vast majority will be released in 18 months, why keep them locked up for all this time in the first place?"

During the past week, in the aftermath of the incident, the Labour Party has upped its ante on the "illegal immigration" theme. Joseph Muscat once again reiterated his 20-point action plan which includes a proposal to "suspend" Malta's "international obligations" if the numbers become unsustainable and the EU fails to accept Malta's demand for compulsory burden sharing.

Camilleri notes a deep contradiction in Muscat's arguments on immigration.

"When talking about the action plan, one of the first principles that Muscat himself reiterated is the importance of the rule of law. If you believe that the rule of law is fundamental, then one cannot just focus on one aspect of the law... one cannot simply look at immigration law and ignore the Refugees Act or, more importantly, the Constitution and the European convention for the protection of human rights, which is  enshrined in national law."

Camilleri argues that our own law gives "supremacy to human rights" and this means that every law has to respect individual human rights.

"For me, this is the most scary thing about this argument, that we are at the end of the day negating the supremacy of human rights law, which prohibits us at any cost from sending anyone to a country - be it their own country or a transit country like Libya -where there is a risk of torture, severe ill-treatment and other serious violations of human rights."

Despite this clear prohibition, Deputy Prime Minister Tonio Borg has recently reiterated his support for Italy's "push back" policy, through which immigrants are intercepted at sea and sent back to Libya, thus being denied of their right to have their asylum applications processed.

Camilleri is categorical in rejecting this policy, citing a recent ruling by the European Court of Human Rights, which deemed it to be a human rights violation.

"It is a violation of our obligation as a State governed by international law to send anyone back to a country where they can face human rights violations."

Camilleri also points out that although the political situation in Libya has changed, migrants and asylum seekers are still unable to obtain effective protection.

This does not mean that Camilleri does not see a need for "responsibility sharing" in the European Union.

"When Malta is patrolling its borders, it is also patrolling the borders of the European Union. We are an external border of the EU. This means that this should be a challenge facing the entire European Union - and not just Malta, Greece, Italy and other front line States."

Some argue that if Malta does not stamp its feet, the European Union will never heed its call for increased "responsibility sharing".

But Camilleri insists that there is red line which can never be crossed.

"One should never stamp one's feet or take any action at the expense of the individual's human rights."

She warns that undermining the rights of any individual - whoever he or she is - would ultimately be detrimental to Maltese society as a whole.

"Creating distinctions based on the notion that they are outsiders ultimately risks undermining the very structures which protect our own human rights. This could have very serious consequences on everybody's human rights."

Given the current climate, where a sector of the population openly question rights enshrined in both Maltese and international law, is there a risk that this heavy climate could pervert the course of justice, with popular juries reflecting the same popular prejudice against migrants?

Camilleri points out that research conducted in other countries does indicate a certain bias, both in the selection of jurors and in the way defendants and certain crimes are perceived. But more research is needed locally before one can form a clear opinion on this issue.

But Camilleri's concerns go beyond biases in the jury system - which should be studied in further detail - to existing obstacles to migrants' access to justice.

"Just as migrants have difficulty accessing other mainstream services like the health system, they face particular challenges when faced with the justice system."

One challenge is the language barrier. The problem is compounded by the fact that many migrants hail from countries without a properly functioning legal system. Some do not even understand the basic rules of procedures. One risk of this is that migrants  do not seek redress from the courts and lose faith in the system.

Immigrants, like the rest of us, perceive everything through the lens of their experience. Camilleri warns that if their experience in Malta is one of exclusion, rejection and not being taken seriously, their faith in the system is further undermined. "This means that they will be less likely to report and take action, leading to a system where certain things can happen with impunity."