‘Europe’s failure’ shouldn’t be ours, too | Neil Falzon

Human rights lawyer and activist NEIL FALZON, of Aditus Foundation, stresses the need to bring human rights back to the table when talking about migration

"God forbid we have reached a stage where EU member states can just wash their hands of their own responsibilities, and use human beings as bargaining chips to do so. If so, the entire system would collapse…"

Another year, another migrant stand-off, another diplomatic wrangle between Malta and Italy, and another uneasy compromise involving a verbal, non-binding relocation agreement among individual countries. One can’t help but feel a certain sensation of deja-vu. It’s as though we are condemned to relive the same drama, over and over again. Do you share that sentiment?

Yes, absolutely. The dynamics may have changed in the minor details: in the past, for instance, it may have been fishermen rescuing migrants, instead of NGO vessels. Or maybe tuna pens as they were being towed towards Malta. But those are just minor details. In essence, the political response has remained the same; the general popular response is unchanged; and at European level, everything is exactly as it was before. With every incident, some government or other always says, ‘This is a watershed moment; we can’t go on like this’, etc. When there are tragedies in which large numbers die at sea, there is always a call for change. But in practical terms, nothing substantial ever really happens.

You’re reminding me of the 2013 tragedy, when around 350 died after a boat capsized off Lampedusa. The funeral service was held here, attended by all the great and good of Europe; and if I remember correctly, there was a lot of talk about ‘action’ to prevent future tragedies…

[Nodding] There was a whole parade, with promises like ‘this will never happen again… this is shameful, this is a blot on Europe’, and so on…

… and yet, it has just kept happening ever since. In this latest case, we’re not talking about dead bodies, but living people – 49 in all, including women and children - left out at sea for 16 days. To come straight to the point: do you think that the Maltese government deliberately left those people out there, in order to exacerbate the political drama, and thereby ‘force’ other countries to accede to its demands?

Totally. It was an intentional government strategy, with a specific goal in mind. This is evident even from the result: what government was trying to negotiate was not just the relocation of those 49 people. Had it been just those, they would been relocated in a day. The whole saga would have been over two weeks ago. But what the Maltese government tried to do – and we feel it wasn’t done very nicely – was to leave those people out at sea, in order to use them as political leverage to get other countries to take in another group of refugees… who, by government’s own admission, fell fully within Malta’s legal and political responsibility.

The resolution passed a few days ago envisages that eight EU countries will admit, not just the 49 from those two boats… but also the ones who had been rescued the week before: even though those were indisputably our responsibility. So what the government really did was use those 49 people to put pressure on other EU member states, to take in people who technically should have remained here. That is what we find even more serious about this latest case. I can understand the disagreement regarding political responsibility for those 49 in particular.
They were rescued outside our SAR Zone; there are issues concerning the NGO vessel, and so on. Agreed, fine.

It still doesn’t justify leaving them out at sea; but I can understand that there were questions. But then again, I don’t expect my government to use those questions to force other countries to take over what is clearly our own responsibility. God forbid we have reached a stage where EU member states can just wash their hands of their own responsibilities, and use human beings as bargaining chips to do so. If so, the entire system would collapse…

And yet, the questions are real and pressing. For instance: whose responsibility were those 49 people, anyway? And if another EU country – in this case, Italy – can (and does) shirk its international obligations all the time… how does it follow that Malta always has to make good for Italy’s failures?

It all depends how you look at it: whether you take a purely legal perspective, or the moral approach… for instance: do we look at whose responsibility those people were, only at the time of their rescue? Or when they were closer to Malta? It’s not a clear-cut situation. Ultimately, though, what I really feel we need to keep telling both government and the public is that… unfortunately, our nearest neighbour to the South is a warzone. And it is a country with a documented history of very severe human rights violations. It’s not nice to have a neighbour like that; but it’s a fact, and there is nothing we can do about it. No amount of stamping our feet and complaining is going to change it. And inevitably, being the neighbor of a warzone, we are also going to get refugees. Now: either we are going to accept that fact, and find a way of dealing with it… or simply throw a tantrum with every passing incident.

But Libya wasn’t always a warzone. And the refugee crisis did not begin with Gaddafi’s downfall; it has been ongoing for two decades now. So even if Libya does somehow reinvent itself as a peaceful, stable country in the near future… what reason is there to suppose that the situation concerning irregular immigration would automatically improve?

It will not ‘improve’ in the sense that refugees will stop fleeing their home countries, or anything like that. As long as there are wars, there will be refugees. It is another unfortunate fact of life that we just have to face. And it’s not just war and persecution, either; there is extreme poverty, famine, drought… this is something we feel we have to keep stressing. It doesn’t have to be war to displace people. Ultimately, if you can’t feed your family, you’re going to move. But I disagree that an improvement in the Libyan situation would have no effect. If Libya does dramatically change as a nation – as other North African countries have changed – you could envisage a scenario whereby Libya could offer a safe haven: first and foremost, for its own citizens… which is not the case at the moment. And potentially, in future, it may become a safe place for other refugees.

And it might also provide economic opportunities. In years gone by, when there was an economic boom in Libya, many migrants had flocked there because there was a lot of work on offer for non-Libyan nationals. Even then, however, there were still reports of human rights violations; and once the civil war broke out, the situation worsened into what it is today. But I don’t think we should give up on Libya. The EU still needs to engage with Libya, and other struggling nations.

We should help Libya rebuild itself as a nation; of course we should. But we should not limit our efforts only to giving them money for border patrols. That is not going to solve Libya’s problems; it is only an attempt to solve Europe’s own problem… by extending the European border to Libya. It doesn’t help Libya rebuild itself as a nation. For instance: has anyone told the Libyan government that it should consider ratifying the UN Refugee Convention? Has anyone told them they need to clean up their detention centres? Or clamp down on human rights violations?

Meanwhile, the Libyan coastguard recently announced that it would ‘only be rescuing people in Libya’s own territorial waters’. But those people would generally be trying to escape from Libya anyway; so, more than a ‘rescue’, it is a case of forcing people back to a country where they are exposed to human rights violations. By accepting (possibly even encouraging) this situation, doesn’t Europe become complicit in those violations?

Europe should certainly be asking itself what happens to those people once back in Libya. Where are they put, how are they treated? Are they penalized, punished or tortured? Are they dumped in the desert? Make no mistake, the stories coming out of Libya are truly horrific...

Prime Minister Joseph Muscat had an opportunity to raise these issues with his Libyan counterpart Fayez al-Sarraj, at a private colloquy in Malta this week. Out of curiosity: what would you have discussed at that meeting if you were in Muscat’s place?

Without going into the broader picture of Libyan politics as a whole - which is quite frankly a mess, right now – I would appeal to the Libyan government to at least try and deal with, and improve, what little infrastructure they actually have control over - the police, armed forces, detention centres, reception centres, and so on – and to try and show some authority by bringing human rights back to the table.

Even if it’s just to get more assistance: I think that, if Libya shows at least some effort in that direction – by making a commitment to improve the human rights situation – everyone would be more willing to engage. But we don’t even have that coming out of Libya right now… it’s just repeated reports of very, very ugly human rights violations. Having said all this, I have no idea what Joseph Muscat actually discussed at that meeting…

Now that you mention it, the whole thing struck me as odd. TVM was happy to report the meting as a photo opportunity, but we were told nothing about the meeting itself: what was said, what was agreed, etc. I can’t help but feeling the whole thing was staged. Do you share that view?

I did feel it was a little weird. Maybe even inappropriate, in a way. There has been a show of friendliness between Malta and Libya of late; recently the Maltese government even said, ‘let us help the Libyan coastguard to do its job’ (or words to that effect). Yet at the same time, the same Maltese government also gives its protection to every single person, coming from Libya, who asks for it. So on one hand, we’re saying: ‘let’s help Libya’… on the other hand, we’re also admitting that not even Libyans are safe in Libya; to the extent that we offer them protection here…

When you say ‘everyone who asks for it’… do you mean that anyone coming from Libya as a refugee will automatically get State protection in Malta?

And anywhere else in Europe. In practical terms, the situation in Libya is such that anyone fleeing from that country would be considered eligible for some form of protection. If they apply for it, they will get it. That’s a fact. And we acknowledge it, by offering blanket protection to all refugees from Libya. Yet we also want to ‘help Libya’ to keep those people from fleeing, and to take them back if they do.

That’s what I find so weird about the situation. Naturally, I understand that the Maltese government would want to establish friendly relations with Libya. That is undeniably the way forward. And I genuinely think that we do have a role to play in the nation-building process. But at the same time, let’s also acknowledge the irony; let’s acknowledge the difficulties Libya is going through. Let’s not hide them, and pretend they don’t exist. Because that needs to be part of the conversation. By ignoring the human rights angle, we are telling everyone that we don’t care if that component is inserted into the conversation. And that’s a very big mistake. To be fair, it is not only Malta making it. In fact, we are concerned with how all governments engage with Libya; because the human rights element is hardly ever present.

On the other side of the Mediterranean, there is Europe; and that is why I began this discussion with a refence to deja-vu. Joseph Muscat not only announced almost exactly the same agreement as the time before… but he did so in the exact same words: describing it as ‘Europe’s failure’. Many will no doubt agree with him. Do you? What has Europe ever done to address mass-migration in the Mediterranean?

Nothing much, to be frank. On the specific point of coming up with a system for protecting refugees, where the responsibly is shared equitably among all 28 member states… we have so far failed, it must be said. Not for lack of trying, though. The EU has been trying to achieve this, one way or another, for the past 20 years…

Has it really, though? All we ever hear about are desperate pleas for solidarity by Malta, Italy and other border states, which are routinely ignored by the rest of Europe. How does that constitute ‘trying’?

Bear in mind that, when we say ‘the EU’, we are ultimately talking about 28 member states. The European Commission, the European Parliament, NGOs, and even some governments have been trying to establish common rules of engagement on migration for years… but it is the member states that keep refusing. The Commission and EP do not have the political strength to overrule national governments. They can only make proposals.

Ultimately, it is governments that decide. Who established the infamous Dublin regulations? Governments. Who insisted on keeping them in place? Governments. So if we really must point fingers, we need to point them in the right direction. It is the governments of Europe which have consistently resisted a common migration policy. Were it not for that, we would have probably had a common policy in place years ago.