Interview | Sunday, 13 September 2009
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Between a rock and a hard place

Malta’s Armed Forces are under fire from all angles, for allegedly abdicating from their obligations to save migrants at sea. Major ANDREW MALLIA puts up a strong defence of his Maritime Squadron, and of Malta’s contested Search and Rescue Zone

It’s been a long hot summer for the Armed Forces of Malta. Not so much because of a spike in arrivals of irregular migrants – quite the contrary: this year’s figures are considerably lower than 2008’s, though they remain within the annual average of around 1,500 – but rather because of renewed political tensions between Malta and Italy, with the AFM caught squarely in the cross-fire.
This places Major Andrew Mallia in an awkward position. As the person responsible for Malta’s RCC (that’s our “Rescue Co-ordination Centre”, not to be confused with certain diplomats of the same initials) he is in a sense directly implicated every time Italy accuses Malta of “failing to abide by its international obligations”.
But Major Mallia is a soldier, not a politician. And despite my painstaking efforts, he refuses at all stages to be drawn into any form of personal commentary regarding the ongoing spat between the two countries.
“Our obligations are to save lives, which we do to the best of our abilities,” he says, rebutting allegations that Malta routinely passes the buck to Italy when it comes to immigrants at sea. “In fact I can safely say that we have never to date ignored a single distress call. But there are limitations to what we can and cannot do...”
Foremost among the political issues at the moment is the principle of “refoulement” – whereby it is illegal to deport persons to countries where their rights cannot be guaranteed.
Italy has been accused of violating this principle thanks to an agreement last June with Libyan leader Colonel Gaddafi. In the past weeks, two separate contingents of around 75 Somali and Eritrean nationals respectively were escorted back to Libya by the Italian Guardia Costiera... and while their fate remains unknown, photos currently circulated on the Internet reveal a shocking pattern of sustained abuse of immigrants, especially sub-Saharan Africans, in Libya’s notorious detention centres.
Malta is also implicated by proxy, as the AFM stands accused of “aiding and abetting” this crime by helping immigrants to reach Italy (sometimes even supplying them with fuel).
Major Mallia is visibly uncomfortable discussing the issue from its political perspective. But he strongly rebuts any criticism that Malta may have been a party to these forced repatriations.
“First of all it’s important to clarify that Malta has no arrangements to conduct repatriations to Libya. That is a procedure that requires bilateral agreements, and again, these are of a political nature and not within the competence of the AFM to discuss.”
Interestingly enough, Mallia also hints that the AFM would conceivably be within its rights to refuse, if (for instance) ordered to conduct a similar exercise by the Prime Minister, who is ultimately in charge of the Armed Forces.
“Part of our obligations according to international law is that we do not obey illegal orders,” he says pointedly.
However, to date it has not quite come to this, as Malta has not conducted any recent forced repatriations of its own. But this was not always the case in the past.
The most controversial Maltese repatriation operation took place in September 2002, when 220 Eritrean nationals were rounded up (admittedly not by the AFM) and placed on a plane back to Asmara. Justice Minister Tonio Borg was on that occasion lambasted by international human rights groups for what many deemed was a crime against humanity. Afterwards, it transpired that some of the deported Eritreans were imprisoned and tortured on their arrival. At least two are known to have been killed.
But it appears that different sets of laws apply to different countries; and while Malta was universally vilified for the above crime, Italy escaped any serious censure when, earlier this summer, it adopted what appears to be a standard policy to automatically deport all “illegals” to Libya... without actually verifying their “illegal” status, and clearly without obtaining guarantees from the Libyan government that their human rights would be respected.
Under these circumstances, how does the AFM justify its own apparent policy to “usher” these migrants towards Italy, in the knowledge that they will almost certainly be deported? Or to put the question another way: what sense does it make to save lives at sea, only to expose the rescued migrants to danger once more by sending them to a country with a long track record of human rights violations?
“Neither Italy nor Malta’s policy is a matter I can comment on,” Mallia replies. “What I can say, however, is that I have yet to see any involvement on Malta’s part in any of these forced repatriations...”
As for “ushering” migrants towards Italy, Mallia insists that in many cases, the AFM simply has no choice in the matter. Life-saving operations are not always clear-cut affairs, and in many cases direct intervention is not even possible to begin with.
“Often we are faced with a situation where a boat would be progressing under its own steam, with a very clear destination in mind: Italy. Unless our assistance is directly requested, or there is a real and imminent danger of loss of life, we are powerless to intervene. We can’t simply ‘rescue’ people against their express wishes... that would be illegal.”
True, but aren’t life-savers also obliged to intervene in cases where the immigrants themselves may be unaware of the danger of their own predicament?
“In a sense, yes. In cases where assistance is not actively required, we still feel we have a burden of care. Having seen the situation and identified a possible danger, we feel we have to continue monitoring the situation to ensure that no lives are endangered. Certainly we can’t just ignore them...”
Mallia adds that it would not be the first time a boat of asylum seekers would refuse assistance from the AFM when first approached, but then change their minds and ask for help.
“Situations at sea can change very dramatically in short spaces of time. There may be an accident on board, or someone might require medical assistance; or it might just be that the sea starts getting rough, and people panic... whatever the case, our responsibility is to ascertain that no lives are lost. That usually means keeping an eye on the developing situation, maintaining a safe distance, but being ready to intervene if necessary.”
In the process, the AFM also finds itself on the receiving end of criticism for “aiding and abetting” Italy’s illegal deportation policy. It certainly looks that way from the outside, as the AFM has on occasion openly admitted to supplying these boats with fuel to help them reach their destination of choice.
Mallia shrugs off this criticism, sticking to his main argument that the AFM’s overriding responsibility is to co-ordinate life-saving operations, not to involve itself in international politics. “Our interventions are always within the confines of our international obligations. Further than that, there is little we can do.”
We agree to move onto other matters: namely, yet another controversy driving a wedge between Italy and Malta at the moment – the issue of Malta’s enormous Search and Rescue Zone, and the two countries’ conflicting interpretations of the two legal conventions governing maritime rescue obligations, SAR (Search and Rescue) and SOLAS (Safety of Life at Sea).
I ask Andrew Mallia to clarify what is becoming an increasingly nebulous conundrum: how can Italy and Malta interpret the same convention in such wildly different terms? Are we talking about two interpretations of one law? Or are Italy and Malta actually governed by different laws regarding search and rescue?
“It is not so much that there are two different laws, but that Malta has not accepted the 2004 amendments to SAR and SOLAS conventions,” Mallia begins. “Like other international laws, it is only those conventions that have been ratified by the country concerned, that actually have any legal bearing in that country’s territory. Malta has not ratified the amended convention, therefore those amendments do not apply...”
Mallia sums it up in a few words: any country dealing with Malta on SAR issues has to recognise Malta’s interpretation of the convention... just as Malta has to recognise other countries’ legal regimes when operating within their SAR zones.
“According to the (pre-2004) SAR convention, the co-ordinating country’s obligations are to disembark rescued persons at ‘the nearest safe port of call’. Malta has always interpreted to mean the nearest place where the persons’ lives are no longer at risk, and where their basic needs can be met. This is what we have consistently done for years.”
However, the 2004 amendments to the SAR convention would change all that. “Under the new regime, our obligations would be to retain responsibility for disembarkation.”
The difference between the two conflicting interpretations may appear small on paper, but the implications would be very significant – not just insofar as immigration is concerned, but also when it comes to merchant shipping.
On the immigration front, it would mean that all migrants rescued within Malta’s SAR zone would have to be brought back to Malta – a fact which helps to explain the government’s strong resistance to this clause.
“From a life-saving perspective, it is difficult to see how the best interests of the rescued persons would be served by bringing them back to Malta, if (for instance) they were rescued much closer to Lampedusa,” Mallia points out. “Also, imagine the example of a commercial vessel sailing towards the Suez Canal, and which develops engine trouble close to Crete. Under the new convention, the ship would have to be towed back 400 miles to Malta, when it was intercepted 60 miles from the nearest harbour. I doubt the skipper would appreciate that...”
Unsurprisingly, however, the 2004 amendments are backed to the hilt by Italy, which has in recent months also upped the pressure on Malta to relinquish part of its extensive SAR zone. It is a tactic that has in a sense caught our country wrong-footed: for among the population at large, there is an undeniable sensation that Malta’s SAR zone is in fact too large to properly managed with our meagre resources. Many openly back Italy’s proposal to “annex” the zone, while others argue against the proposal on the basis of national sovereignty and pride.
But there is also another argument: i.e., that Malta receives some form of financial advantage through its SAR zone, which our neighbours to the north may be eyeing for themselves. How much truth is there to this conspiracy theory? What benefits does Malta’s SAR zone offer to our country... and are these benefits worth the responsibility in the first place?
“First of all let’s clarify what our SAR zone actually is. Having an SAR zone is not a privilege. The zone itself is not part of Maltese territory, and no, there are no direct economic benefits related to SAR. On the contrary, it is an international obligation, and we are legally required to maintain safety in that area at our own expense. But in a country like Malta, which is 98% reliant on maritime trade, you could also argue maintaining the safety of sea lanes is to our own indirect economic benefit.”
The confusion, Mallia continues, arises through misidentification of our SAR zone with our Flight Information Region (FIR): which, although occupying exactly the same footprint, is nonetheless a separate and strictly speaking unrelated area.
Unlike SAR, FIR zones do have their economic benefits, and Malta receives payment for all traffic passing through its own airspace. But Mallia adds that these economic advantages tend to be slightly exaggerated.
“Revenue generated by our FIR means that Malta’s Air Traffic Control is self-sufficient, and can operate without State subsidies. It allows for the maintenance of radars, and other such equipment. But that’s all really...”
Yet another aspect of the conspiracy theory involves oil exploration. There seems to be a widespread notion that a country’s SAR zone is somehow related to its oil exploration rights – which would certainly explain Italy’s interest in ours, at a time when the same country is also a registered third party to an ongoing border dispute between Malta and Libya concerning the Medina Shelf.
The dispute goes back to the 1970s, and is today best remembered for the notorious Saipem II incident, when a Malta-commissioned Texaco oilrig was ordered to stop drilling under threat of fire by Libyan gunboats. The matter was deferred to the European Court Judgement, but the subsequent judgement was at best inconclusive.
Could the ongoing SAR controversy be somehow related to oil exploration? To my surprise, Mallia does not dismiss this notion out of hand.
“Technically no, there is no direct connection between SAR and oil exploration,” he begins cautiously. “But the argument can be made that a country’s SAR zone has relevance to a country’s rights over the same territory for other reasons, too...”
If a new dispute were to arise between Malta and another country over oil rights within our SAR zone, Mallia argues that it would not be inconceivable for the European Court to take the zone into consideration when deliberating.
“The fact that a country has invested money and resources in keeping the seaways safe over that territory, could be used to claim territorial rights over the same area,” he points out.
Mallia cites the example of Malta’s economic zone, which is similarly unrelated to territorial jurisdiction, but which was delineated according to a number of criteria.
“In this case, Malta’s traditional fishing grounds were taken into consideration when it came to defining the boundaries of Malta’s exclusive economic zone. The same argument could apply to Search and Rescue... though of course it would have the Court to decide in the end.”

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Between a rock and a hard place


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