Secret pushback? Timeline of the AFM’s rescue coordination of the returned migrant boat

Is Malta responsible for a secret pushback of boat migrants to Libya?

According to the NGO Alarm Phone, the Maltese authorities deliberately ignored a distress call and then coordinated the pick-up of a boatload of 63 people who were returned to Libya.

This episode has been enmeshed in a magisterial inquiry, with Magistrate Joe Mifsud leading the inquiry on a criminal complaint by Repubblika, a civil society NGO which has led the Daphne Caruana Galizia vigils and protests against the Muscat administration in 2019.

The complaint is two-fold: that the Maltese are responsible for this pushback, and that in a second episode, the P52 boat of the AFM sabotaged another migrant boat. The complaint accuses the AFM commander Jeffrey Curmi and Prime Minister Robert Abela of homicide. The Maltese premier went on to the attack, exploiting the antagonism of Labourites for Repubblika and their lawyer, the shadow justice minister Jason Azzopardi, to justify his hard-line stance against migrant rescue NGOs taking in boat people and asylum seekers drifting out at sea from Libyan shores.

But Repubblika’s complaint has also been dead-legged, in part by having overplayed their hand at a time when the pandemic has made border closures a necessity; but also because the NGO has now submitted evidence to the magisterial inquiry that seems to go against claims that the crew sabotaged the boat: that the migrant manning the outboard engine on the dinghy was directed by a P52 crew member to pull what is known as a ‘kill switch’ to shut off the engine – a standard procedure in rescues of this type to ensure the safety of all parties involved – and not that the engine was deliberately damaged.

The other issue is whether the refusal to take in the other boat in distress in Maltese SAR responsibilities makes Malta guilty of an act of refoulement, for the AFM ultimately coordinated the intervention of a commercial vessel to take the boat back to Libya. Since the boat potentially carried asylum seekers, the act of returning the migrants to the place they were fleeing from would be illegal in the eyes of international law.

TIMELINE

9 April 63 people – including seven women and three children – fled Garabulli, Libya on a rubber boat.

10 April A Frontex aerial asset spots three rubber boats with people on board in the Libyan SAR area (Frontex press statements released on 13 April to ANSA Rome: “Respecting operational procedures and international laws… we immediately informed the Maritime Rescue Coordination Centres (Italy, Malta, Libya and Tunisia) of the exact location of the boats.”

That same night, the boat reaches out to Alarm Phone while in distress at sea, saying they were taking in water. Their GPS position showed them in international waters (N 33°41.795′, E 013°34.0124′ received at 01:52 CEST, 11/04/2020). Alarm Phone informed relevant authorities in Malta, Italy, and Libya, staying in contact with the people in distress and passing on new GPS positions to the MRCCs.

11 April At 9:20am, Alarm Phone reached the Libyan authorities on the phone, who stated: “The Libyan Coastguard now only does coordination work because of COVID-19, we can’t do any rescue action, but we are in contact with Italy and Malta.” No rescues were effected by either Italy or Malta on that day.

12 April (Easter Sunday) 12:45pm, Alarm Phone receives the position N34° 29.947′ E013° 37.803′ from the boat in distress, showing it in the Maltese SAR. At 2:05pm, the boat called again, and after that, contact was no longer re-established.

13 April Both the Italian and Maltese authorities organised air surveillance missions, finally spotting the boat at 11:45pm in the Maltese SAR in position 35°01’N 013°06’E.

14 April Malta sends out a NAVTEX to all boats: “All ships transiting in the area to keep sharp lookout and assist if necessary.” The GPS position matched an estimated drifting pattern of the boat in distress with 55 (later confirmed to be 63) people on board. The NAVTEX also stated that Malta would not be able to provide a place of safety.

A cargo ship, the IVAN, stopped one mile away from the boat in distress, and Malta ordered them to stay at the scene and monitor the boat in distress until rescue arrives. An air asset of the Armed Forces of Malta was on scene during the duration of the operation, giving orders to the IVAN and two boats on the scene.

According to testimonies gathered from the survivors, three people on the boat in distress jumped into the water to reach IVAN, and drowned. 

Four other people threw themselves into the sea out of desperation.

In the words of a survivor as told to Alarm Phone: “We shouted for help and made signs. Three people tried to swim to this big boat as it started moving away. They drowned. We made signs to the aircraft with the phones and we held the baby up to show we were in distress. The aircraft saw us for sure, because it flashed us with a red light. Shortly after another boat came out of nowhere and picked us up”.

Around 5am, a fishing vessel, and a second, yet unidentified vessel, arrived on scene and took the survivors on board, under coordination by the Armed Forces of Malta. The IVAN was ordered to leave the scene.

On Tuesday evening, the Maltese authorities told Alarm Phone there were no more open SAR cases in the area, without providing information on the fate of this boat in distress. Italian authorities were said to have organised several air surveillance missions on Tuesday evening, without results.

15 April Alarm Phone receives information that 56 people had been returned to Libya on board of the fishing boat. Among them, the bodies of five people who died during the journey due to dehydration and hunger. Seven were missing. According to the survivors, the crew of the fishing vessel let them believe that they would be brought to safety in Europe. Instead, they were pushed back to Libya.

Alarm Phone says the timeline shows that the distress case was known to the European authorities for six days, upon aerial sighting by a Frontex asset on 10 April. While the Libyan coast guard did not intervene while the boat was in the Libyan SAR,  there was also no coordination and no related intervention to assist the people in distress for almost 72 hours – which the NGO says was a breach of the International Law at Sea (3.1.9 SAR Convention, 1979), because states are still obliged to ensure the safety of life at sea even if the SAR event occurs outside their region of competence (IMO Guidelines on the treatment of persons rescued at sea, par. 6.7).

Malta took upon itself the late coordination of the SAR event with its NAVTEX message on 13 April, but it declared that it would not offer the survivors a place of safety, again an extremely debatable point as to whether the COVID-19 pandemic is a justifiable reason to deny people their right to asylum and international protection: a matter that could only possibly be resolved inside an international court. If this action resulted in a pushback, it would mean Malta was in violation of art. 33 of the Geneva Convention, art. 2 and 3 of the European Convention on Human Rights, art. 19 of the EU Charter on Fundamental Rights.