Lampedusa tragedy | When people become bargaining chips

Responding to this week's tragedy off Lampedusa - in which a boat carrying 500 people caught fire and capsized, resulting in an estimated 300 lives lost at sea - Italian senator Roberto Formigoni opened a broadside on Malta and Spain for "condemning migrants to death" as a result of the two countries' presumed pushback policies.

Local reactions were understandably incensed, with many commentators publicly reminding Formigoni that the government he himself was once part of (i.e., the Berlusconi administration) employed a pushback policy for over a year, before this was ruled to be illegal by the European Court of Human Rights in 2011.

As a result of this policy, hundreds of migrants were deported to Libya without an opportunity to apply for asylum: a right to which they are supposedly entitled, according to the European Convention of Human Rights.

It was also correctly observed that Malta has to date limited its own policy to only 'considering' pushbacks as a means to stem the influx - but (unlike Italy) Malta has not actively pushed back any migrants, at least not since the mass deportation of Eritreans in 2001.

Lastly, Formigoni was reminded of a controversial law passed by his own government, which proposed to incriminate people who offer assistance to migrants at sea - a law that openly defies all known maritime conventions, and which could conceivably have been a contributing factor to the loss of so many lives in this particular tragedy.

Government's official reaction to the Formigoni slur was however more guarded, given the close ties that are supposed to exist between the two countries.

Prime Minister Joseph Muscat said he would not be drawn into any direct rebuttal: "Comments made by sole politicians will definitely not impinge on the excellent relations between Malta and Italy," he said, in the context of a speech in which he also offered 'solidarity' to Italy (exactly why remains unclear, seeing as our neighbouring country cannot in any way be considered the victim of this tragedy).

In all this exchange of barbs, accusations and commiserations, few seem to have noticed the detail that - if you ignore the direct attack on Malta in what was ultimately a throwaway comment on a TV chat show - both Malta and Italy have responded to the catastrophe in almost identical ways.

Both countries turned the loss of around 300 lives into an extension of their own previous arguments that 'Europe' - spoken of almost as if were a separate entity, and not a union of which both Malta and Italy are members - should somehow step in and solve all our problems with the wave of its magic wand.

Likewise, the immediate reaction of both countries to the worst naval tragedy to occur in the Mediterranean in decades was to make a public plea for solidarity from Europe... for themselves.

"All we have seen so far from the EU are only words," Muscat remarked. "The EU must not limit itself to statements but extend its intentions in a perceptible manner with long-term solutions... Today's incident should not remain just a headline but it should lead to EU solidarity."

Significantly, he also capitalised on the event by subliminally responding to earlier criticism by EU Home Affairs Commissioner Cecilia Malmstrom, who had hinted in a speech last month that Malta had failed to fulfil its international obligations vis-a-vis immigration.

"Malta is honouring its international obligations and upholding the provisions of international treaties," Muscat said in what seems to be direct reply to Malmstrom. "During the past hours, the Armed Forces of Malta, in conjunction with Italian naval authorities, were involved in yet another two rescue operations on the high seas."

Human rights violations

But is Malta really honouring its commitments and upholding the provisions of to international treaties? According to NGOs involved in immigration issues, the answer is a very emphatic 'No'.

Last week, the United Nations High Commission for Refugees issued a report which concluded that Malta's systematic administrative detention policy in not in conformity with international law. 

The fact that Malta continues to receive relatively high numbers of asylum seekers, the UNHCR noted, does not absolve the state from its responsibilities (implying that such responsibilities are being ducked).

Among the specific shortcomings identified in the report are: that the majority of asylum seekers in Malta are subject to prolonged periods in detention without access to adequate avenues to challenge effectively the decision to detain; and that there is no general mechanism in place to consider less coercive and alternative measures in individual cases at the time of the decision to detain.

Elsewhere, Malta's bail system, the only statutory alternative available, is neither effective nor generally accessible to asylum seekers arriving in an irregular manner.

"In these circumstances, it is UNHCR's position that the mandatory and automatic detention of all asylum seekers who arrive in an irregular manner, for the purposes of removal, is unlawful and arbitrary."

Article 9 of the 1948 Universal Declaration of Human Rights - to which Malta is a signatory state, and which is entrenched in the Maltese Constitution - decrees that "no one shall be subjected to arbitrary arrest, detention or exile".

Malta found guilty

More worryingly for Muscat's claims to have fulfilled international obligations, the European Court of Human Rights recently delivered a scathing judgment (Suso Musa versus Malta, July 2013) in which various aspects of Malta's blanket detention policy were ruled to be illegal.

The judgment concluded that: "Mr Suso Musa's detention preceding the determination of his asylum request had been arbitrary. Indeed, the conditions of his place of detention had been highly problematic from the standpoint of Article 3 (prohibition of inhuman and degrading treatment). Moreover, it had taken the authorities an unreasonable amount of time to determine whether the applicant should have been allowed to remain in Malta.

"As regards the period of detention following the determination of Mr Suso Musa's asylum request, it found that the deportation proceedings had not been prosecuted with due diligence. Moreover, the applicant had not been allowed to have a speedy review of the lawfulness of his detention."

It would appear that the basic conditions leading to this judgment are still in place to this day, despite the European Court's insistence that the same situation is rectified as a matter of urgency.

"The Court considered that the problems detected in this case could give rise to further similar applications. Therefore, it requested the Maltese authorities to establish a mechanism to allow individuals seeking a review of the lawfulness of their immigration detention to obtain a determination of their claim within a reasonable time limit. It further recommended Malta to take the necessary steps to improve the conditions and shorten the length of detention of asylum seekers..."

However, there has been no change to the detention policy since the ruling was delivered last July.

Put your house in order

In view of the fact that Malta's asylum process has been declared illegal on a number of counts by the ECHR, Muscat's official argument that Malta 'deserves' sympathy and solidarity start to look a little shaky.

Aditus, a human rights advocacy group, adds its voice to a growing consensus - at least among similar NGOs - that Malta needs to put its own house in order, before turning to Europe for support.

"Despite minimal efforts at improving material conditions and introducing appropriate policy measures, Malta's detention regime is one of Europe's harshest systems in terms of the way it is applied and also of the conditions in which asylum-seekers are kept," Aditus director Neil Falzon told MaltaToday. "It is also important to reiterate that it is not only Maltese NGOs saying this, but other organisations such as the Council of Europe's Committee for the Prevention of Torture, Amnesty International, Human Rights Watch, LIBE Committee of the EP and finally the European Court of Human Rights..."

In view of these repeatedly highlighted failures of Malta to comply with the most fundamental aspects of the treaties to which it is signatory - not least, the Universal Charter of Human Rights - Muscat's call for 'solidarity' has raised a few eyebrows.

"We have repeatedly recommended that the Maltese government adopt a totally different stance vis-á-vis requesting solidarity from EU institutions and member states," Falzon said. "Insisting on maintaining the lowest possible standards for what the [European Court] has defined as one of the most vulnerable groups of persons in society, and then complaining about not being able to cope, does very little towards attracting sympathy and solidarity."

Falzon reiterates his NGO's recommendation of an approach that conforms to human rights standards, and treats people with their due dignity and respect. 

"Malta cannot keep insisting on responsibility-sharing when it unashamedly shuns its own responsibilities. The recent Court judgements emphasise how serious the situation is: a very stern warning that every day an asylum-seeker is detained in Hal Far or Safi is a day of Malta acting illegally, a day of human rights violations. How this approach can be reconciled with aggressive insistence on solidarity is beyond imagination..."

Detention as a deterrent

For all this, there is mounting evidence that Malta may be deliberately infringing human rights by doggedly adhering to an asylum system that has been ruled illegal by the ECHR.

In April 2009, Foreign Affairs Minister Tonio Borg (now a European Commissioner alongside Malmstrom) candidly admitted that his government's detention policy was viewed as a 'punishment' for asylum seekers.

Outlining the reasons for the detention policy, Borg said: "The message needs to... be received by everyone that entering Malta illegally will not go unpunished."

In the same interview Borg also said that it is "good to persuade [asylum seekers] that they have to go back home... it's good that they contact their relatives and say, listen, don't come to Malta because it's terrible here."

Separately, Home Affairs Minister Carm Mifsud Bonnici candidly admitted in 2009 that his government would consider defying international law by simply diverting migrants to other countries, if only this were logistically possible:

"There isn't a convenient border which you can take them to and allow them to skip off to the other side as has been the case with several other countries... [detention is] our method of controlling and containing at the same time'.

The administration of government has since changed, but there has been no departure from the preceding asylum policy that had in any case enjoyed the full backing of the Labour opposition - marking a rare instance of cross-party consensus, on a matter that technically involves multiple human rights violations.

This much seems to have been noticed at international level: in a recent speech, Home Affairs Commissioner Caceilia Malmstrom strongly hinted that Malta's systematic failure to adhere to international law was among the reasons why other EU members were resisting Muscat's repeated calls for mandatory burden sharing.

According to Malmstrom, other EU member states "are against relocation as a concept as they view it as a pull-factor and think that it is a disincentive to other member states from improving the quality of their asylum systems".

With so much evidence that Malta is deliberately refusing to improve its asylum system specifically to create a 'crisis; situation that would force the EU to intervene, it is perhaps unsurprising that the rest of Europe has to date proved unsympathetic to Malta's complaints.

Still, NGOs involved in the issue are reluctant to draw watertight conclusions.

"Are they doing it on purpose?" Falzon muses when asked about the possibility that Malta is deliberately failing to meet its international obligations. "It is difficult for us to say this, at least conclusively.  The status quo is a product of direct populism, coupled with a narrow and somewhat selfish understanding of what human rights actually mean and also what EU membership implies. As Malmstrom said during the relocation forum, solidarity comes with responsibility, and we cannot emphasize this enough. If Malta argues that it cannot cope because of the numbers, then relocation should logically result in a better-equipped system. We haven't seen this logical sequence in recent years."