Adrift at Sea: Laws, Morals, and Policies in Malta’s Search and Rescue Region

Since 2016, EU member states have scaled down search and rescue operations that save lives at sea and replaced them with policies intended to reduce the number of migrant arrivals to Europe. These policies of non-assistance and forced returns to Libya render the central Mediterranean one of the world’s deadliest border spaces and force asylum seekers back to a war zone where inhuman and degrading treatment is well-documented. A growing network of civil society organisations continues to challenge these policies in the courts, on the streets, and at sea. This article, the second in a two-part series on migration, is based in part on interviews conducted with Dr Omar Grech, Senior Lecturer in International Law at the University of Malta (UM), Dr Derek Lutterbeck, Deputy Director at the Mediterranean Academy of Diplomatic Studies at UM, and Dr Felicity Attard, expert in International and Maritime Security Law at the Faculty of Laws at UM.

The Central Mediterranean Route and Malta’s SAR Zone 

Beyond Libya’s shore lies the open sea and arguably the most significant migration pathway to Europe, the central Mediterranean route, one of the world’s deadliest border spaces. The central Mediterranean route, like the entirety of the sea, is divided by Mediterranean states into search and rescue (SAR) zones. Relative to its geographic size, Malta maintains a vast SAR zone, a vestige of British colonial rule, that stretches across much of the central Mediterranean. 

The most significant treaties governing SAR activities are the United Nations Convention on the Law of the Sea (1982 UNCLOS), the International Convention for the Safety of Life at Sea (1974 SOLAS), the International Convention on Maritime Search and Rescue (1979 SAR), and in Malta, the Malta Merchant Shipping Act (1983 Chapter 234, Articles 305 and 306).

Dr Felicity Attard explains that Article 98 of the UN Convention on the Law of the Sea ‘imposes two distinct but complementary obligations on States aimed to protect persons in distress. The first obligation is incumbent on flag States, which must ensure that the shipmaster renders assistance and rescue to persons in distress “in so far as he can do so without serious danger to the ship, the crew, or the passengers” and “in so far as such action may reasonably be expected of him.” The second obligation falls on coastal States to “promote the establishment, operation, and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea…” These obligations are further expanded in the SOLAS and SAR conventions and in the Malta Merchant Shipping Act.’

Thus, when a migrant vessel departs the shores of Libya and enters Malta’s SAR zone, the government of Malta is legally bound to provide an ‘adequate and effective search and rescue service’, and all shipmasters of all flags, wherever in the world they may be, must render ‘assistance and rescue to persons in distress.’ 

As the number of migrants crossing the central Mediterranean fluctuated over the past decade, so too did EU and EU member state policies toward migration. On 3 October 2013, some 360 people drowned when a boat sank less than a kilometre off the coast of Lampedusa. This Lampedusa Incident, and to a lesser degree the drowning of over 34 people in Malta’s SAR zone a week later, galvanised political support for search and rescue in Europe. The Italian government initiated a large-scale migrant rescue operation, Operation Mare Nostrum, which a year later was replaced by Operation Triton and brought under the direct management of the European border and coast guard agency, Frontex. 

For a brief period, EU member states contributed to a robust search and rescue operation in the central Mediterranean. Oddly, however, as migrant arrivals to Europe rose, disembarkations declined in Malta. Attard points to opposing legal views held between Italy and Malta to explain this disparity in migrant arrivals. In 2004, Italy ratified a series of amendments to the 1974 SOLAS and 1979 SAR Conventions which Malta refuses to sign. Thus, Attard explains, while Italy ‘insists that the obligation to allow disembarkation is that of the State responsible for the search and rescue region where the rescue operation takes place.’ Malta maintains that disembarking people at the nearest safe port is more expeditious and thus humane, and that it is ‘the State which offers the nearest safe port to the distress incident that is obliged to accept the disembarkation of rescued persons.’ In other words, although countless rescues took place within Malta’s SAR zone, in the vast majority of those cases, the geographically closest port of safety was Lampedusa. That the government of Malta maintains this firm commitment to deflecting disembarkations to the nearest port of safety is borne out by statistics on the number of migrant arrivals thus far in 2022, with Italy receiving 66,314 migrants and Malta receiving 271.

By 2016, European governments, under pressure from a rising tide of populist nationalism, scaled back Frontex search and rescue operations, withdrawing the vast majority of rescue and reconnaissance ships from the central Mediterranean and replacing them with planes and drones in order to avoid the need to disembark rescued people in European ports. During this same period, the EU negotiated and signed a migration management agreement with Turkey to reduce the number of migrant arrivals in the eastern Mediterranean. Broadly speaking, the focus of operations shifted from saving lives at sea to deterring migrant departures from Libya and reducing arrivals in Europe. In Grech’s words, ‘the European side of things [became] very gated!’ In this aim, EU member states were restrained by a 2012 European Court of Human Rights decision in the case of Hirsi Jamaa and Others v. Italy. The court concluded that by forcibly returning migrants to Libya on Italian coast guard vessels the authorities had violated the principle of non-refoulement which guarantees that ‘no one should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm.’

Recognizing that forcibly returning migrants to Libya on European state vessels would violate the principle of non-refoulement, EU member states sought to abide by the letter of international law while willingly violating its spirit. Thus, in what Grech calls ‘the most recent addition to the European catalogue of human rights abuses,’ they outsourced the task of intercepting and returning migrants to Libya to the Libyan Coast Guard (LCG). Financing, equipping, and cooperating with the LCG began with the EU training of LCG personnel under the EUNAVFOR Med operation in 2016 and then increased significantly following the signing of a memorandum of understanding between Italy and Libya in 2017. Later that year, the EU established a €46 million program titled, ‘Support to integrated border and migration management in Libya,’ in order to further enhance the migration management capacities of the Libyan authorities. In June 2018, Libyan authorities formally registered their own SAR zone with the International Maritime Organization and established a maritime rescue and coordination centre in Tripoli. Malta signed a memorandum of understanding ‘in the field of combatting illegal immigration’ with the Libyan GNA in May 2020, which established migration coordination centres in Tripoli and Valletta in order to enhance logistical cooperation.

As a result of this EU support and cooperation, the number of migrants intercepted at sea and forcibly returned to Libya by the LCG has increased dramatically in recent years. In 2021, the LCG intercepted and returned 32,425 people to Libya, three times the figure for 2020. Between January and the end of August, 14,000 people were intercepted and forcibly returned to Libya this year. Through their own border operations and direct subsidies to the LCG, European taxpayers are funding the interception and forcible return of people to a war zone where systematic extortion and inhuman and degrading treatment is well-documented. With the complicity of the EU and EU member states, tens of thousands of migrants, many of them children, are forced back to the horrors they are trying to escape without any opportunity to exercise their legal right to apply for asylum. According to UNHCR, in 2021, 19.8% of migrants attempting to cross the Mediterranean were children. Indeed, official statistics indicate that around 6,485 children were forcibly returned to Libya in 2021. Roughly 2,800 children have been pushed back from the central Mediterranean to Libya so far this year. The interception and forced return of people fleeing Libya is by its nature an indiscriminate process.  

Simultaneously, European migration policy has rendered the central Mediterranean route more deadly. Official figures indicate that, while the number of migrant crossings has ebbed and flowed over the past decade, the number of migrant deaths in the Mediterranean as a percentage of crossings has increased steadily. In 2021, 2.6% of people who attempted to cross the central Mediterranean died or went missing, over double the death rate of 1.2% in 2019. These figures on the dead and missing in the Mediterranean are also certainly gross underestimates as many die without being counted. 

Migrant Arrivals and Deaths in the Mediterranean

An October 2021 UNHCR report on forced returns by the LCG and conditions in Libya’s migrant detention system deserves to be quoted at length:

Several interviewees described that they had endured the same cycle of violence, in some cases up to ten times, of paying guards to secure their release, taking part in an attempt at crossing the sea, being intercepted and subsequently being returned to detention in harsh and violent conditions, all while under the absolute control of the authorities, militias and/or criminal networks. 

The Mission established [the number of] migrants in detention centres of the Department for Combating Illegal Migration, including large percentages of children. The discrepancy between the number of migrants intercepted at sea […] and the number currently detained in DCIM run centres raises serious concerns that significant numbers of migrants may have been returned to smugglers and traffickers or are in the hands of armed groups who further abuse them. 

The foregoing provides reasonable grounds to believe that acts of murder, enslavement, torture, imprisonment, rape, persecution and other inhumane acts committed against migrants form part of a systematic and widespread attack directed at this population, in furtherance of a State policy. As such, these acts may amount to crimes against humanity. 

The Civil Fleet and Legal Challenges to EU Migration Policy

From a purely amoral perspective, the European policy of facilitating the forced return by proxy of people to Libya has prevented the arrival of tens of thousands of people to European soil this year alone. Politicians across the EU and across Malta’s political divide laud their governments’ capacity to manage migration and crack down on people smugglers, extolling the virtues of being hard on those who might dare abuse the asylum system. Government rhetoric often obscures realities on the ground in Libya and at sea and renders migrants as either criminals seeking to abuse the asylum system or victims that need saving. 

Those that work directly with the issue of migration in the central Mediterranean – in the law courts, as academics, as coast guard or navy personnel, or as social workers and volunteers – generally paint a very different picture of people trying to flee Libya to Europe. Beginning in 2015, a civil fleet began operating in the Mediterranean to fill the gap left at sea by the termination of Operation Mare Nostrum. Since then, the number of NGOs, volunteers, and civil fleet assets involved in reconnaissance operations has grown steadily despite efforts by European governments, Malta included, to criminalize civilian search and rescue operations, impound civil fleet vessels, prevent disembarkations, and charge volunteers with facilitating illegal immigration. Undeterred by prosecution and persecution, the civil fleet, made up primarily of idealistic volunteers, continues to save thousands of lives at sea and prevent the forced return of people to Libya. From January to the end of August this year, the civil fleet rescued 8,435 people from 137 boats in distress. 

The law courts provide another theatre in which European border policy is challenged and may be reformed. Even brief reflection on some relevant cases provides insight into the human experience on the central Mediterranean route as well as the legal issues that might affect migration policy going forward. A number of cases relevant to Malta’s migration policy are being deliberated in the national courts.

50 people, including eight women and three children, have filed a constitutional case against the Prime Minister, the Home Affairs Minister, and the Commander of the Armed Forces of Malta. They claim their rights were breached in April 2020 when they were intercepted in the Maltese SAR zone by private vessels, including the Malta-flagged Dar Al Salam 1, under direct coordination by the government of Malta, and forcibly returned to Libya, where they suffered inhuman and degrading treatment. 

In another constitutional case filed against the Prime Minister, the Home Affairs Minister, and the State Advocate, 32 people claim their fundamental rights were violated when they were detained on three tourist boats 13 nautical miles off the Maltese coast. A total of 425 migrants were held incommunicado on Captain Morgan tourist boats, some for over five weeks, beginning in April 2020. They claim that conditions on board amounted to inhuman and degrading treatment and their right to claim asylum was violated. 

Finally, in an example of resistance to the EU policy of forcibly returning people to Libya, three young men are accused of pressuring the captain of a commercial vessel to sail to Malta. The El Hiblu 3, Abdalla, Amara, and Kader, aged 19, 16, and 15 respectively at the time of the incident, face the prospect of lengthy sentences for terrorist activity. On 27 March 2019, the El Hiblu 1, a commercial oil tanker, rescued 108 people from a sinking dinghy. An EU reconnaissance aircraft operated by the Mission EUNAVFOR Med relayed orders from the LCG to the captain of the El Hiblu 1 to return the migrants to Libya. When the group of migrants recognized Tripoli’s coastline the following morning, they protested their forced return, and some threatened to throw themselves overboard. Later that day, the El Hiblu 1 entered Maltese waters and was stormed by the Special Operations Unit of the Armed Forces of Malta. No weapons were found onboard, and it remains unclear exactly why the captain decided to bring the vessel to Malta. 

Individual human stories, such as that of Loujin, the four-year-old Syrian girl who this September was left drifting at sea for days in Malta’s SAR zone and eventually died of thirst, are often lost in this complex picture of war and detention in Libya, of torture, exploitation, and extortion on land, and of non-assistance and forced returns at sea. Though many of us gathered in Valletta to honour Loujin’s preventable death, the vast majority of people murdered in Libyan detention or drowned at sea as a direct result of European border policy go unrecognized. To speak their names and know their faces, to try to understand their stories, to humanise them in the face of government rhetoric takes a radical act of empathy. There is no doubt that Libya is an unsafe country and that the Mediterranean is fast becoming a cemetery. EU border policies deny the right to asylum, delay rescue, and push people back to a war zone, brutalising the most vulnerable. Reports and statistics on the number of migrants intercepted and forcibly returned to Libya, on conditions in Libyan detention, and on the number of deaths in the central Mediterranean speak as clearly of injustice as do the testimonies of those who manage, despite all odds, to arrive on our shores seeking asylum.

Disclaimer: All data and information presented in this article is accurate as of the time of writing (September 2022) and is subject to change based on newer data.