Someone has broken the law, but was it three teenage migrants, or the boat captain who said he’d been hijacked?
In March this year, a group of more than 100 migrants embarked upon an already deflating raft to cross the Mediterranean Sea from Libya. Their rescue story would later become a landmark case in Malta, a key first port of entry for migrants hoping to reach Europe.
Three teenagers are now facing life imprisonment for their part in the story.
According to radio transcripts documenting the rescue mission, an aircraft deployed by the European Union’s naval operation to combat refugee smuggling in the Mediterranean spotted the sinking raft and called upon the El Hiblu 1, a commercial oil tanker on its way from Istanbul to Tripoli, to take the migrants back to Tripoli.
Those rescued said the ship’s chief officer swore on the Quran to take them to Europe. However, the next day, they woke up to see the coastline not of Europe, but of Libya – a country widely condemned for abuses against migrants including detention, rape, torture and human trafficking. They began to shout in protest and, according to some media reports, bang tools on the side of the boat.
The chief officer communicated to Maltan authorities that he was turning the boat towards Valletta after he had lost command of his ship – rhetoric that was reinforced by the media and politicians, who described the migrants as “pirates” and “hijackers”.
Three teenagers on the ship, a 15-year-old Ivorian and a pair from Guinea, aged 16 and 19, were subsequently charged on nine accounts, including one terrorism charge, which may send them to prison for life.
Context
Interviews with the accused teenagers tell a different story aboard the El Hiblu. They say the chief officer asked them for advice on how to calm the protesting migrants, to which they responded that he should take the boat towards Europe, as he had originally promised. The teenagers said they were welcome to walk in and out of the captain’s cabin, and that they joked around with the crew, who sometimes brought them coffee and peanuts.
Neil Falzon, a lawyer with the legal team representing the teenagers, said he finds the charges “excessive, in particular those relating to terrorism”.
“We find it very hard to understand how the prosecution is able to see an element of terrorism in the facts as presented so far,” he told Al Jazeera. “We also must underline the context in which these facts happened: migrants and refugees [who were] fooled and about to be returned to the most terrible atrocities in Libya. What would anyone else have done?”
The United Nations and human rights groups have condemned the charges against the teenagers, who were recently released on bail after spending eight months in Maltese detention centres. They argue the EU’s cooperation with the Libyan coastguard to keep migrants in Libya violates the principle of non-refoulement, which forbids a country from returning asylum seekers to a country in which they would be in likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.
“The charges that have been brought are really disproportionate to what might have practically happened on the ship,” said Elisa di Pieri, Amnesty International’s researcher on southern Europe.
“There is no doubt for us that the people who were at risk of being returned to Libya would have been risking serious danger to lives and their safety. This was known to Maltese authorities and EU authorities. Whatever happened on that boat needs to be seen against this context.”
Both the lead prosecutor on the case and Malta’s refugee commissioner declained to comment on the ongoing case when contacted by Al Jazeera.
A criminal act
Marc Tilley, a field coordinator for search and rescue NGO missions in Malta who has attended the ongoing evidence-gathering proceedings for the El Hiblu case, explained the prosecution’s approach to the affair: “A criminal act was committed in a legal sense, and someone has to be punished for this. EIther the ship was hijacked, and the three teenagers accused are guilty, or the crew fraudulently portrayed the situation in order to get access to Maltese waters, which would fall under smuggling charges. The perspective of the prosecution is that this has to be resisted by the government in a way to not to give any rescue ship carte blanche.”
Criminalising migrants for political gain has become more common in Europe since the 1990s, said Marie Laure Basilien-Gainche, a lawyer specialising in European law.
“On the one hand, there’s a movement to control the security of EU territories and also the instrumentalisation of the fight against terrorism, and on the other, you have the obligation of safety and non-refoulement,” Basilien-Gainche told Al Jazeera.
“We have an upside-down situation where we have administrations openly violating European conventions and international human rights law when migrants are involved.”
Since the EU increased its efforts in preventing boat departures from Libya in 2016 to fight human trafficking, critics say this has forced migrants to act in ever more desperate measures to escape the North African country. A recent similar case in Italy, involving a rescue mission on another commercial ship, found migrants were acting in self-defence when they forced the captain to take them to Europe.
Tilley says the argument of self-defence is a “pipe dream” for the teenagers in Malta: “The sentiment here is very much geared towards it doesn’t matter if you did it for the right reasons or not – you still broke the law and you have to take the punishment for it.” He highlighted the example of Claus Peter Reisch, the German captain of a migrant rescue ship who was fined 10,000 euros ($11,100) by a Maltese court in May after having operated a rescue boat in Maltese waters without proper documentation.
“The courts recognised the humanitarian imperative of the mission, but in legal context, it has no bearing,” he explained.
The teenagers’ case is still pending a trial date in Malta.