According to international law, Malta should have confirmed the safety of Eritrea before repatriating 220 Eritreans back to an unsure fate in a war-torn country where human rights abuses were still rampant. But why were warnings by Amnesty International, the Eritrean Liberation Front and other human rights
organisations ignored by both the UNHCR and the Maltese government?
The Maltese government was obliged by international law to determine whether Eritrea could be considered a safe country for the repatriation of 220 Eritrean migrants back in September 2002, when the deportation met international protest from NGOs and organisations amidst warnings that Eritrea’s human rights picture was a desolate one.
Forewarned months beforehand on the grim fate awaiting the deportees, both Eritrea’s main opposition party, the Eritrean Liberation Front (ELF) and UK-based Eritreans for Human and Democratic Rights (EDHR), petitioned the UN’s High Commission for Refugees as well as the highest Maltese authorities, including the President, the Prime Minister and other Ministers, to stop the deportation.
Although 170 of the refugees did not apply for refugee status, Malta was bound by the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, to “determine whether there are such grounds… of a consistent pattern of gross, flagrant or mass violations of human rights,” in Eritrea, before deportation.
According to the Convention, which Malta ratified in 1990, “no state party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
So far there have been no confirmations from the Home Affairs Ministry as to whether any research was carried out to ascertain whether Eritrea was a safe country at the time of deportation. Ministry spokesperson Joe Azzopardi said that “at this stage… it would be better to wait for the outcome of the [magisterial] inquiry,” referring to the nomination of Magistrate Abigail Lofaro to determine whether the process of repatriation had been regular and legal, and whether there was illicit pressure from persons or authorities for deportation to take place.
Whether this inquiry will be looking beyond the legal process of repatriation and checking whether Malta was obliged by international law to confirm whether Eritrea was safe or not, is yet to be seen.
Refused refugee status
Yesterday Commissioner for Refugees Charles Buttigieg told Magistrate Abigail Lofaro that any research into the human rights situation in Eritrea had been conducted through internet, main sources used being both the UNHCR and the commission’s British counterpart.
Buttigieg also said the majority of the deported Eritreans had refused to apply for refugee status, despite repeatedly being informed of their right to apply for asylum.
When in July 2002, a second boatful of Eritreans had arrived to Malta, following an earlier arrival of around 90 Eritrean migrants in March 2002, many refused to apply for refugee status. According to Charles Buttigieg, a visit by UNHCR representative Augustine Mahiga to Malta in August had revealed no signs that the UN agency was against the deportation of the Eritreans who had refused to apply for refugee status:
“It appeared to me that their response was that there was no problem, nor complaints, and nor did they tell us not to send the Eitreans back. In no way was any of this communicated to us or hinted, otherwise I would have immediately notified the authorities,” Buttigieg told Magistrate Abigail Lofaro.
The Commissioner also said how prior to deportation, on 4 September, 2002, the Eritrean migrants held in detention at Ta’ Kandja started a hunger strike, demanding they meet the Refugee Commissioner. A delegation of six Eritreans met the Refugee Commission at the mess hall in Ta’ Kandja, demanding that the Maltese authorities arrange for the migrants to be transported to the Eritrean mainland.
Buttigieg said the Eritreans had once again refused to apply for refugee status, and also refused to accept the preliminary questionnaires for refugee status just in case they would change their mind.
“I felt I could not have done any more than that, and from then on I no longer had any contact with the Eritreans. NGOs such as the Emigrants’ Commission and the Jesuit Refugee Service also attempted to convince them to apply for refugee status,” Buttigieg said, who added that in October the UNHCR itself had expressed its opinion that the migrants in question were not seeking international protection. “I would have taken immediate action if the UNHCR had said deportation was not a good idea.”
Jesuit Refugee Service coordinator Fr Pierre Grech Marguerat believes the issue now centres around whether Government did its homework before repatriating the Eritreans to a fate of torture and degrading treatment first confirmed in Amnesty International’s 2004 report ‘Eritrea: You Have No Right To Ask.’ “Government was responsible to check whether Eritrea was safe or not, whether these were refugees or not. This is mentioned in the UN Convention concerning torture and degrading punishment,” he told MaltaToday.
It is unclear, however, whether warnings sent to both the UNHCR and the Maltese government were taken note of by both entities, especially since Home Affairs and Justice Minister Tonio Borg said the deportation did not meet opposition from the UNHCR, whose High Commissioner Ruud Lubbers had been petitioned by the ELF to stop the deportation.
UNHCR spokesperson Laura Baldrini declined to comment on whether the UNHCR had informed Malta to take note of the protests and ascertain the safety of Eritrea before deporting the 220 Eritreans, an important factor which could serve to highlight whether the UN agency was also duty-bound to confirm whether deportation should not have been carried out.
According to Refugee Commissioner Charles Buttigieg, it was only in February 2003 that the UNHCR changed its position with regards to the situation in Eritrea and called for a termination of forced repatriation, after it had commenced a cessation clause for all refugees who had fled the war of independence and the Eritrean-Ethiopian border conflict. Buttigieg recommended then that Eritreans in custody be given temporary protection for one year.
This newspaper can confirm that on June 20, 2002, the ELF, the main opposition to the ruling dictatorial People’s Front for Democracy and Justice, wrote to UN High Commissioner Ruud Lubbers, to draw his attention to the impending fate of the Eritrean refugees in Malta.
The ELF claimed that since the early 90s, Eritreans were subjected to “continued oppression and dehumanisation, denied of the most elementary rights to life and safety, and left with no opportunities to make a living in their homeland.” Those who rejected military conscription, to fight in the border war against Ethiopia, were “hunted out, killed or thrown in labour camps in desert areas… As if this did not suffice, the regime embarked on a vast crackdown on all opposition… Students and journalists were summarily arrested and sent to their death in the scorching deserts.”
The ELF also said it had written to then President Guido de Marco, Prime Minister Eddie Fenech Adami, the Foreign Minister and the Refugee Commissioner, urging them to review the case of the refugees in the light of the “of the dangerous political and security situation in Eritrea.” According to the ELF, there was no response form the Maltese authorities, prompting them to take recourse to the UNHCR.
On 8 July, 2002, the EHDR wrote to the President of the Republic, Prime Minister Eddie Fenech Adami, as well as to Justice Minister Austin Gatt and also Tonio Borg, to protest the deportation of the Eritrean immigrants.
The letter claimed the human rights situation in Eritrea was then, “as attested by various international agencies… very poor at the moment,” and that arbitrary arrests, disappearances and coercion “have become so common any are fleeing the country. Citizens whose views are different than that of the government are living in constant fear of being targeted as many before them have been victims of the State’s terror campaign.”
Home Affairs Minister Tonio Borg has not been clear about his ministry’s role in ascertaining the safety of Eritrea, saying the eventuality of torture would have been impossible to predict – a statement not attuned to previous behaviour by the Maltese government, which in the past had refused to extradite an Egyptian national accused of murder in Turkey before it received assurances that he would not face the death penalty if found guilty when tried in a Turkish court.
In its recent statement, the ministry defended itself saying Eritrea had been declared safe by the UNHCR when a Tripartite Repatriation Commission, made up of Sudan, Eritrea and the UNHCR, had agreed to a voluntary repatriation of Eritrean refugees coming in from Sudan. The UNHCR denied it had declared Eritrea safe, saying this was not policy for the agency.
Tonio Borg also said the government had not received any directive to stop deportation in seven months. However, MaltaToday can confirm that seven months following deportation, then Attorney General Anthony Borg Barthet sent a series of questions to the UNHCR, asking for clarifications on the cessation clause and voluntary repatriation scheme conducted by the UNHCR.
The questions were sent by the Attorney General after Eritrean nationals filed a court case against the Government on 27 February 2003. A reply was sent by the UNHCR to the AG on 26 March 2003.
In these replies, the government was informed by the UNHCR that reports of various human rights monitoring bodies depicted “a deteriorating trend,” citing arrests of politicians, journalists and students who had voiced their opposition to the Eritrean government.
“According to the reports, they have not been taken to court nor released to date, but continue to be held in incommunicado detention in unknown locations… By all accounts, Eritrea’s Human Rights record remains in a number of fields, quite poor.”
Referring to the cessation clause for Eritreans who fled the border conflict with Ethiopia in 2000, the UNHCR said the cessation clause was limited in scope and did not extend to refugees “who have valid grounds for claiming a well-founded fear of persecution” and that these claims should be examined on a case-by-case basis.