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Matthew Vella
• Printouts from the UNHCR and BBC News websites – how Refugee Commissioner Charles Buttigieg asserted himself of safe return to Eritrea
• Refusing asylum – 251 Eritreans refused to apply for refugee status after it was explained to them that deportation was imminent, saying they wanted to go into Europe
• UNHCR – investigations terminated before UNHCR representative could be awarded legal immunity and so does not testify
The verdict is in, and Tonio Borg’s ‘deterring’ detention policy is in the clear, which means that so is he, and the Refugee Commission.
Following a four-month investigation conducted by Magistrate Abigail Lofaro in which 48 witnesses were interviewed in 14 sittings on the controversial deportation of 450 Eritreans in the summer of 2002, the Maltese authorities have been declared free of any controversial or illicit actions with regards to the deportation.
The investigation indicated the authorities were legally correct and did not flout UNHCR or Amnesty International guidelines; the law was “scrupulously” adhered to by the Police Commissioner, responsible for immigration, and by the police in their handling of asylum claims; and there was no illicit pressure for deportation to take place.
That may be good news for Borg, whose detention policy he famously fabled as a ‘deterrent,’ is unable to face up to the spontaneous arrivals of late. Refugee Appeals Board chairman Henry Frendo, the history professor, on the other hand gets a feeble scolding: the inquiry confirms that the Board never gave any reasons for its decisions to uphold Refugee Commission refusals, save for their standard one-line refusal. Lofaro said Frendo’s Board should examine each case by calling a sitting whenever possible, even though this was not necessarily required.
The Lofaro inquiry confirms the legality with which the Refugee Commission and the Maltese Government acted with regards to the deportation of the Eriteans, 199 of whom were refused refugee status by the Commission, and 251 of whom had actually refused to apply for asylum. Only two were granted asylum in Malta. The would-be immigrants were deported to Eritrea where, according to a revealing Amnesty International report on the war-torn African nation, deportees flown back home from Malta were greeted by army officials and sentenced to long periods of horrific torture. Following the publication of the report, the UNHCR, whose role throughout the summer of 2002 with regards the deportation of the Eritreans remains clouded at best since it has not been asserted yet whether it could have voiced its concern on their fate after being petitioned by AI and other groups, said the deportation of the Erirteans in September could have been “premature.” Two years too late.
But this is where the inquiry fails to tie certain loose ends. Without the presence of the UNHCR representatives in Magistrate Lofaro’s courtroom, it remains unknown whether deporting the Eritreans back in September 2002 would have led to their torture and illegal detention. The UNHCR asked to be granted legal immunity, but since the process takes months, Magistrate Lofaro terminated the inquiry before it could be granted since the terms of reference for the inquiry was that it be finalised expeditiously.
Whilst both the UNHCR and the Maltese Government were actively lobbied by Amnesty International, who were refused a guarantee by the Magistrate that their sources on the Eritrean torture would not have to be disclosed and so refused to participate in the inquest; and the Eritrean Liberation Front, an opposition party to the ruling dictatorial Popular Front for Democracy and Justice, no answers have as yet been given as to why their protests were seemingly ignored or not given due attention, when they pointed to clear cases of torture, human rights breaches and extra-judicial executions.
Tonio Borg is reported in Court as having written to AI and taken note of the concerns on the human rights situation in Eritrea. What happened as to the pleas by the Eritrean Liberation Front is yet to be known. Borg is cited as saying the ELF is “a political Party that wants to clinch power in Eritrea” and that in an ELF report he received nowhere was it mentioned that something would happen “personally” to the deported Eritreans.
Michael Seyoum from the ELF personally petitioned the UNHCR’s Ruud Lubbers and the Maltese Government. Another UK human rights organisation, the Eritreans for Human and Democratic Rights, also wrote to the Maltese government and Tonio Borg to protest against the deportation of the Eritreans in July 2002.
And what about the petitioning by the ELF to Ruud Lubbers, dated June 20, 2002, which states that they “wrote repeatedly” to the President, the Prime Minister, the Foreign Minister, the Refugee Commission, and the Immigration Committee “urging them to review the case of the refugees in the light of the dangerous political and security situation in Eritrea…”, with no response? Is that what Borg might have meant about the petitions saying that nothing “personally” would happen to the deportees, ignoring the general references to the picture of human rights violations in Eritrea?
So from where did the information come which asserted to the Maltese authorities that everything was in order in the Horn of Africa? From documents exhibited by Refugee Commissioner Charles Buttigieg, the Commission availed itself of ‘printouts’ from a BBC news website and updates on the UNHCR website. According to Buttigieg, it would seem the Commission based itself on the premise that the UNHCR had commenced a voluntary repatriation process from the Sudanese border leading into Eritrea. Admittedly, the cessation programme was directed towards those former refugees who accepted voluntary repatriation back into Eritrea who “should no longer have a well-founded fear of persecution”. However, the UNHCR communication stated, “the ‘ceased circumstances’ clauses should not apply to individual refugees who continue to have valid grounds for claiming a well-founded fear for persecution, or who can invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of Eritrea”.
The Lofaro report in fact goes through the legal obligations of the Maltese authorities in the Maltese legal framework. Little is said about the international obligations of the Maltese government with regards to deporting Eritreans to an unsure fate in Eritrea, as according to international UN conventions on protection from torture and inhumane treatment.
Indeed, the tragedy is that the 251 Eritreans who arrived in May refused to apply for asylum, claiming they wanted to carry on into Europe, despite being repeatedly warned of the consequences of refusing to apply. But here lies a contradiction of sorts – why did the Armed Forces of Malta earlier this week escort to Italian territorial waters a boatload of around 100 migrants who refused to be escorted into Malta after arriving into Maltese territorial waters, instead of taking them to a safe port of call as specified in international law?
“They did not want to come to Malta,” Tonio Borg candidly said yesterday, while presenting the results of the Lofaro inquest.
“The rest of the immigrants insisted not to land in Malta so we gave them the liberty to carry on,” AFM Commander Carmel Vassallo added, without coyness. “They are now in Italian waters, after being escorted by a Maltese patrol boat to a spot outside Italian territorial waters.”
And Borg admits they had to be taken to the nearest, safe port of call. “We now have to check what international law on distress says exactly… but these did not want to come into Malta. We cannot force anyone to come in.”
What the Italians will have to say about this latest bravado, much akin to the one which saw Malta bearing the cost of repatriating returned Egyptian migrants from Italy after being let go by the AFM, is yet to be seen.
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