Cynthia Busuttil
Law backs AFM on migrants
'Relatives of Eritrean migrants had alerted the authorities'
The Maltese armed forces could not have acted any differently in the way they dealt with the five Eritrean migrants last week, given that international maritime law does not cover cases in which people refuse rescue, according to a leading expert in this area.
There are simply no legal provisions describing this scenario, said Patricia Mallia, who heads the University's International Law Department and whose doctoral dissertation deals with migrant smuggling.
"If they were not in distress, we did not need to take them forcibly on our own vessel," she said, adding that the claim that the migrants refused to be rescued seemed to indicate they were never really in distress.
Her statement comes as Italian media reported that a Sicilian Magisterial inquiry is contemplating a criminal case against the crew of an Armed Forces Patrol boat.
Last week, the crew re-fuelled a stranded rubber dinghy carrying illegal immigrants, gave them food and lifejackets and monitored the rest of their journey towards Lampedusa.
The migrants were then picked up by the Italian Guardia di Finanza claiming that more than 70 people who were aboard with them had died during a 20-day journey from the Libyan coast.
The armed forces commander, Brigadier Carmel Vassallo, has insisted that his men did not break any law in taking the action they did as the immigrants did not want to be rescued.
Casting doubt on the immigrants' story that they had been at sea for so long, he said the five migrants were relatively fresh and their dinghy in very good condition.
The Brigadier also said that since being in distress meant in "imminent danger of dying", the Maltese armed forces simply had no right to bring these migrants to Malta unless the migrants asked them to.
This explanation, however, did not satisfy the Italian government which has been berating the Maltese authorities over the incident.
The latest statements came from the influential MP Margherita Boniver, from the governing People of Freedom Party, who said the island had breached human rights and dumped its responsibilities on Italy.
The government denied this and the views of legal experts sought by The Times corroborates this position.
Given the gap in the law, Dr Mallia believes the army had no other course of action to follow in this case.
She also pointed out that while the threat of loss of life was what normally defined a vessel in distress, the state of a boat could change from one moment to the next. This made the monitoring of the boat until it was taken over by the Italian authorities very important.
But the issue becomes more complicated due to a legal distinction between a vessel that is in distress and needs rescuing and one which is not seaworthy, Dr Mallia pointed out.
In her dissertation, she underscored that lack of seaworthiness alone did not necessarily amount to distress. It is only when the vessel's lack of seaworthiness poses a threat to human life that the people on board have to be rescued.
Human rights expert Neil Falzon agreed that there is a lacuna in this area but said that in the absence of an international definition of what amounts to distress, migrants should only be allowed to continue with their journey if it is certain they will make it to their destination.
"Given the immediate and serious risks of such a journey, personally I don't believe it's a wise decision to let them continue with their journey," he said.
Dr Falzon, who used to head the local office of the UN High Commission for Refugees, said it was up to the captain of a boat to decide whether the people on board needed to be rescued. However, it was unclear how this applied to refugees crossing the sea, who had no captain and were travelling in an unflagged vessel.
"In that case, it is the rescuing boat which has to make that decision," he said.
UNHCR spokesman Laura Boldrini believes that migrants who end up without fuel in the middle of the Mediterranean have to be rescued, however she said the international organisation did not have an official position on this issue.
She was reluctant to discuss last week's case, saying that an investigation needed to take place, especially since there were conflicting versions.
In fact, Brigadier Vassallo has disputed the migrants' claim that 73 people on board the vessel had died, saying that there was no evidence to suggest this.
Eritreans living in Malta and other European countries, possibly related to the victims, had sent an e-mail to alert the Maltese authorities that a boat carrying around 80 migrants had left from Libya on July 29 but had not reached any destination.
The army's description of the immigrants' state of well-being seems to be corroborated by an Italian government doctor who was on the ground when the migrants arrived in Lampedusa on Thursday.
Dr Valeska Padovese told The Sunday Times: "They must be confusing the dates. They arrived in a bad condition but if they were so long at sea they would have never arrived, especially with the August heat."
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Graham Crocker
Aug 25th 2009, 19:55
Denis Catania, the law states that they must berth at the nearest safe port, which usually is Lampedusa. The Italians aren't satisfied with their own vast amount of resources, so they are doing their best to take our Search and Rescue zone & our Fishing zone, which was given to us by the British. They want it because we earn a lot of money from it. Frattini or Casa Nostra? You decide, they both try their best to steal. We are a capable country. The reason why the British haven't adopted the EUR currency is because they don't want to share a currency with the Italians and its probably the reason why they gave us the rights to the S&R and not them, so it should stay that way.
Raymond Sammut
Aug 25th 2009, 18:58
Where is Dr Gonzi in all of this? What has happened. Is Silvio still calling him on the phone.
T Pace
Aug 25th 2009, 14:28
The UNHCR would be much more effective if it were to utilize its resources in publicizing the perils and deaths of the crossing across the Mediterranean rather than criticize the Maltese and Italian governments.
With regard to the dinghy in which 75 illegal immigrants purportedly found their death, a thorough investigation by the Italian authorities of the dinghy should yield forensic evidence of their presence.
It seems rather strange that whereas previously
1. boats had a mixture of nationalities, the one with five 'survivors' had only Eritreans; and
2. migrants claiming to be Somalis have now been replaced by ones claiming to be Eritreans.
Raymond Sammut
Aug 25th 2009, 00:50
@ Denis Catania
No Mr Catania, they are not to be let "go free" if they are caught on an unregistered vessel. Maritime Law requires that they be apprehended upon entering territorial waters so they can be questioned at the nearest port on the issue of their identity and reason for travel.
mike turner
Aug 24th 2009, 21:16
Two matters arise from this sad story :- 1. It is clear that Italy is cynically trying to grab influence over potential seabed mineral assets and potential fishing rights ( "Mare Nostrum"), and 2. it is absolutely clear that immigrants here in Malta are co-ordinating or at least being well informed about further clandestine immigrant expeditions. Why are they not co-operating with the AFM to inform them of fresh departures from North Africa, which would greatly assist the patrols to ensure their compatriots safety.
Denis Catania
Aug 24th 2009, 14:05
Than why have we been picking up boat loads of illegals, when they weren't facing any danger and bringing them to Malta, when they only wanted to go to Italy. The AFM should always ask two questions 1. Do you need anything? 2. Is Italy where you want to go? Than let them go free.
Lawrence Martinelli
Aug 24th 2009, 13:42
Does it need Einstein to work out how come they were clean-shaven =
< as seen by the AFM personnel AND also by the Italian doctor on landing >.
I bet my last penny Signor Frattini will put pressure at the E.U. to "encourage"
Malta to give up a good slice of its SAR zone.
What then ?
Joanne Micallef
Aug 24th 2009, 13:15
Because the AFM's intervention is documented since they were operating under the Frontex mission, I seriously doubt that what these Eritreans are claiming is true. So once the truth will be out in the open, will any charges be pressed against these Eritreans if it is proven that they made such grave false allegations against Malta's armed forces?
A.Calleja
Aug 24th 2009, 13:08
AFM should document such encounters so as to avoid any misinterpretation by third parties who stand to gain from such accusations. When a boat is sighted one of the crew should register the state and reactions of the immigrants on a video as proof of the events.
Raymond Sammut
Aug 24th 2009, 12:38
Both Dr Mallia and Dr Falzon are evading the legal issue in question. Maritime Law is unequivocal about unregistered vessels at sea. These are to be seized by the relevant authority upon entering territorial waters, and the occupants are to be taken into custody for questioning. They are to be questioned on the issue of identity and the reason for travel. If the AFM had jurisdiction over the zone where the illegal boat was intercepted, the occupants had to be apprehended and removed from the unregistered vessel. If Lampedusa was the closest port, they then had to be handed over to the Italian authorities.
Why Brigadier Vassallo keeps insisting that "the immigrants did not want to be rescued"? The fact on the ground was that the vessel was unregistered. The question is not whether the occupants of the illegal boat wanted to be rescued but whether they were intercepted within the zone over which the AFM have jurisdiction. The fact that the occupants made it to Lampedusa and had never signalled for assistance proves that they were never in a Mayday (highest priority) or Emergency (second highest priority) situation, and hence no one was obliged to give them assistance.
James Grech
Aug 24th 2009, 12:08
@B.Bugeja
It is to no gain to us if WE believe that the lay backs AFM on migrants and that this situation is all a big hoax mouthed by the italian government. Our government needs to publicly demand an apology from the irresponsible Frattini and italian news papers. This situation is putting all of us in a bad light viz european and international community. Our credibility is being undermined. GOV REALLY DO SOMETHING ABOUT THIS!!!!!!!
carmelo Nenu aquilina
Aug 24th 2009, 12:02
Sinjuri Onorevoli Berlusconi, Fratini, Marrone U l-Bossi,
Ara veru politiċi ta faqar u arroganza taljana tal-mistħija!
Imiskom tistħu politiċi Taljani li tippermettu lill politiku Taljan Bossi jgħid li Malta daqs BESQA!
Hekk tistmana Sur Bossi?
Malta besqa u qed tgħiru għalina, u tridu dak li hu tagħna. Imma b'xiber imnieħer ser tidqgħu!
Sur Berlusconi ikkundannaħ lill Bossi, għax Malta jixraqila kull rispett u mhux redikulaġni.
Għalhekk, igħolbu skuża lill poplu Malti Sur Prim Ministru Berlusconiu tal-Gvern Taljan!
Kuraġġ ħuti Maltin, Kunu kburin, Aħna illum daqs il-kbar fl-Ewropa, u ħadd mhu ser jkasbarna jew jirridikulana!
Kuraġġ Onorevoli Sinjuri bravi Politiċi Maltin!
Aħna l-Maltin ilkoll ninsabu warajkom!
VIVA MALTA U L-MALTIM
B.Bugejja
Aug 24th 2009, 11:14
i read the story on the net here in Aussie, i think the Italians got it in for us and as usual inventing their own version of the story, am sure its a load of crap coming from an Italian mouth, still i know what to believe no Italian newspaper is going to insult my intelligence, i am above that cock and bull story. . G'day all from ..........
Bruce Bugejja. NSW.
Charles Sammut
Aug 24th 2009, 10:29
According to Italian TV news this morning, some women on board this "ill-fated" dinghy, gave birth and then dies and were dumped into the sea with their new-born babies. Believe these stories at your own risk.
"Human rights expert Neil Falzon agreed that there is a lacuna in this area but said that in the absence of an international definition of what amounts to distress, migrants should only be allowed to continue with their journey if it is certain they will make it to their destination."
Nothing is certain in life. Even a car journey of a few kilometers can end in tragedy. Tto stay safe, these people should remain on the African continent.
Dr Francis Saliba
Aug 24th 2009, 10:16
From the very first moment that Frontex located the rubber dinghy in Libyan waters until it reached Lampedusa there never were more than five illegal immigrants on board. Their physical condition when assisted by the AFM and later belies their claim that they had been at sea for over two weeks. There is no evidence that the dinghy ever carried seventy persons except for the say-so of the illegal immigrants themselves and their relatives. These would have every interest to add more falsehoods to their undeniable illegal activities. The Maltese government and the AFM deserve the wholehearted support of all true Maltese whose national interests are being attacked by Italian politicians and their dreams of aggrandizement.
Charles Caruana Carabez
Aug 24th 2009, 10:12
If the AFM version is true, it is more than likely that the 'survivors' concocted this unlikely story so that they would garner sympathy in Italy.
lgalea
Aug 24th 2009, 09:50
"Her statement comes as Italian media reported that a Sicilian Magisterial inquiry is contemplating a criminal case against the crew of an Armed Forces Patrol boat."
The Sicilian Magisterial Inquiry would be more useful if it contemplated a criminal case for the atrocities the Italians committed in Ethiopia, Eritrea, Abyssinia,
Laura Boldrini can believe whatever she wants. If she doesn't like it she can take all illegal immigrants to her country. After all it was her country that colonized the countries the illegal immigrants are from.
Dr Falzon should condemn the illegal immigrants for knowingly paying criminals to help them enter into another country illegally without any papers and should know that an unflagged vessel is breaching international law.
"Eritreans living in Malta and other European countries, possibly related to the victims, had sent an e-mail to alert the Maltese authorities that a boat carrying around 80 migrants had left from Libya on July 29 but had not reached any destination."
This proves that all illegal immigrants must be expelled because they are coordinating their illegal voyages with those who are already here.