If Malta broke international law… so did the European Commission

It therefore follows that, should a European policy be deemed ‘illegal’, the people responsible for is implementation should face criminal proceedings in a court of law

I normally hate starting articles with dictionary definitions; but this time I feel it might be necessary, because the word itself seems to be either completely unknown, or wildly misunderstood. So here goes: “Refoulement, n: the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution.”

That, in a nutshell, is the human rights breach that former Alternattiva Demokratika chairman Arnold Cassola has now asked the International Criminal Court to investigate… but only now; and only, it seems, with specific regard to Neville Gafà and Joseph Muscat.

Cassola’s request was in fact prompted by revelations made by Gafà last Sunday: namely, that he had “used his contacts in Libya to establish a rapport with the Libyan coastguard and the interior ministry.”

In Gafà’s own words, he “used to receive information of boats departing from Libya and their coordinates from the Armed Forces of Malta and would relay this directly to the Libyan coastguard […] Between July 2018 and January 2019 alone, around 53 migrant boats were prevented from reaching Malta’s search and rescue area in this way…”

This was, of course, already common knowledge to anyone who had ever taken an interest in Malta’s migration issues in the past: including all the media, as well as all the international NGOs which have been complaining about a ‘secret’ Malta-Libya pact for years.

But – for arguably the first time - we now have it directly from the horse’s mouth. Gafà has freely admitted (if not actually boasted) that he pursued a course of action that resulted in the “forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution”… and there is plenty of evidence, compiled by various human rights watchdogs, that returned asylum seekers face systematic human rights breaches – including torture and degrading treatment – once back in Libya.

So according to Arnold Cassola, “this would be violating basic human rights and would constitute a serious breach in international law. If there were grounds for such breach, I ask [the ICC] to investigate Mr Neville Gafà and the former Prime Minister of Malta, Joseph Muscat, who allegedly entrusted Mr Gafà with carrying out such breach…”

And guess what? He is perfectly right. Malta’s actions do amount to a clear-cut case of ‘refoulement’, which in turn is a serious violation of international law. So I cannot but agree with Arnold Cassola, when he argues that the crimes admitted to by Neville Gafà (and, by extension, Joseph Muscat) should be fully investigated by the International Criminal Court.

But then again... why stop at only those two? And why is refoulement only ever considered a crime when committed by the Maltese authorities… but not when it forms the very basis of the European Union’s entire policy on Mediterranean migration?

For Cassola appears to have overlooked a small detail in all this. Malta’s actions may be reprehensible, from a human rights perspective… but they are also entirely in line with the approach taken by the European Commission itself: which has designated “the Libyan authorities as the primary authority responsible for coordinating responses to distress situations in the designated SRR.” (Source: a PQ answered by then EU migration commissioner, Dimitri Avramopoulos, in June 2019].

Moreover, Human Rights Watch last year reported that “Senior EU officials are aware of the plight facing migrants detained in Libya. In November 2017, EU migration commissioner, Dimitri Avramopoulos, said, ‘We are all conscious of the appalling and degrading conditions in which some migrants are held in Libya.’ […]”

And yet, according to the same article: “European Union (EU) migration cooperation with Libya is contributing to a cycle of extreme abuse. The EU is providing support to the Libyan Coast Guard to enable it to intercept migrants and asylum seekers at sea after which they take them back to Libya to arbitrary detention, where they face inhuman and degrading conditions and the risk of torture, sexual violence, extortion, and forced labour.”

Read that second sentence again, and you will surely note that it amounts to exactly the same practice that Neville Gafà described in his testimony last Sunday: i.e., collaboration with the Libyan Coastguard, to ensure that asylum seekers are intercepted and returned to Libya.

Likewise, in July 2018 I interviewed Sea Watch volunteer Carola Rackete – who was arrested not long afterwards (and later released) for rescuing migrants and bringing them to Europe, instead of Libya – and she, too, lambasted the Commission’s policies as illegal:

“There has definitely been a choice to turn a blind eye,” she told me on that occasion, “And this choice was made as early as 2016. And even more than that, there is active support – training and funding for the so-called Libyan coastguard – to hold back people in Libya. So, the sole interest of the EU is to prevent any people from entering Europe, without consideration for any human rights, or the maritime and refugee laws…”

And to cap it all, this was further confirmed by none other than Commissioner Avramopoulos himself. In answer to the same PQ referred to above, he affirmed that: “In the framework of Operation Sophia, EU support is focused on training and capacity building as well as enhanced monitoring of the Libyan coast guard to develop Libya’s ability to take up responsibility in its sovereign waters in line with international standards.”

As a result, “work is done with the Libyan authorities to establish a standardised process with the aim to ensure migrants rescued by the Libyan coast guard are disembarked and taken to centres [in Libya] that meet international humanitarian standards, as well as a robust registration mechanism to ensure traceability.”

Please note, however, the glaring contradiction in the last part of that quote. Avramopoulus himself had already acknowledged that Libyan detention centres very emphatically do NOT “meet international humanitarian standards” at all.

Yet there he was last June, upholding an official European Commission policy that routinely transfers rescued asylum seekers to the Libyan authorities… as a result of which, they are forcibly returned to a place where they face a high probability of torture and abuse.

In other words, exactly the same crime that Arnold Cassola suddenly finds shocking enough to report to the International Criminal Court… even though it has been happening for years, with the full blessing of the EU, right under his very nose.

But I guess that’s the whole point, isn’t it? ‘Refoulement’ is not a crime worth reporting, when it’s the European Commission that is guilty of breaching human rights and violating international law. It only becomes a problem when the exact same crime is committed by the government of Malta… and even then, only when the government happens to be in the hands of people we don’t particularly like.

All the same, however, this doesn’t change the fact that Cassola is ultimately right: crimes of this nature do need to be properly investigated, and the perpetrators – with no exceptions - should indeed be brought to justice.

So I’d like to take the occasion to second his call for the ICC to investigate… with the small difference that it should investigate ALL cases of illegal refoulement to Libya in recent years: including all the ones where the guilty party is very clearly the European Union itself.

And let’s face it: the EU can hardly object to placing itself under investigation for such serious crimes… after it has criticised Malta so frequently (and severely) over its ‘rule of law’ situation, and all the political ‘impunity’ it has caused.

Cassola’s request, then, translates into a perfect opportunity for the European Union to finally put its ‘rule of law’ money where its mouth is… and to demonstrate, once and for all, that the law really does applies to everyone equally in Europe.

After all, the same rule of law decrees that ‘people in power’ (a category which also includes European Commissioners, as far as I can see) should also face responsibility for their policies and actions… just like any ordinary European citizen.

It therefore follows that, should a European policy be deemed ‘illegal’, the people responsible for is implementation should face criminal proceedings in a court of law.

And in the specific case of refoulement to Libya, the responsibility of the European Commission has to be viewed as far more onerous than that of anyone member state… which, at the end of the day, can always justify its illegal actions by arguing that it was only implementing policies imposed upon it by the EU in the first place.

So… what are we waiting for? By all means, let the International Criminal Court investigate Neville Gafà and Joseph Muscat, as demanded by Arnold Cassola… but let’s not leave out the true ringleaders of all this illegality: i.e., the European Commission, which routinely pontificates to us all about ‘governance’, ‘values’, ‘principles’, and all that… and yet whose own policies regularly condemn thousands of people to systematic human rights violations, including torture… without ever facing any form of justice for its crimes.

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