The real game in the migrant saga

Is it legal, the way that Malta is treating irregular migrants crossing from Libya? Strangely, this question is a distraction. It prevents us from taking in the full picture of what’s going on.

It’s strange because international law lies at the heart of the case. It’s a distraction because international law is no longer the framework of the actions of government – all European governments. The law has become a pawn in a game of international collusion.

The Malta government’s legal case is not as strong as the government makes it out to be, but neither is it as weak as its NGO critics claim. It is just strong enough that other European governments can look the other way.

It is true that, if the matter had to go to court, the chances are the government would lose. An earlier court judgement declared that it is not just pushbacks (returning migrants found in territorial waters to Libya) that are illegal. So is ‘interception’ (stopping them from reaching territorial waters), no matter how you dress it up. But judgements are issued on particular cases, and there are enough niceties in the law to permit a case to be built on a series of distinctions.

Take Malta’s (and Italy’s) declaration that it is no longer a ‘safe’ harbour. The law was originally written to mean that safety was jeopardised by massive disruptions like war. But pandemics were not on the horizon then; they were not, strictly speaking, excluded. There is a case to be made that pandemics are similar enough, in institutional disruption, to a war. Any lawyer can point out the international consensus that fighting this pandemic is like a ‘war’.

That’s hardly an open-and-shut case for the legality of Malta’s declaration that it is an unsafe harbour. But it is just about strong enough that other European member states can let it pass.

And that is the game being played at the moment. It’s one of European collusion. EU states are giving each other a pass. Even Malta is playing along.

Take Robert Abela’s most outrageous claim. The prime minister has said that since Malta is unsafe, the migrants were taken to the nearest port, which was Libya. Since when, however, does Malta being unsafe convert Tripoli from unsafe to safe?

If a pandemic makes our harbour unsafe because a pandemic is like a war, what does a real war – like that going on in Tripoli (irrespective of any temporary ceasefire) – do to a harbour? It’s not just the UN that has declared Tripoli unsafe. The Libyan government recently refused to accept migrants to enter port on those very grounds.

The law does not say migrants should be taken to the nearest port but the nearest safe port. If Abela really had the migrants’ rescue on the top of his mind, he would therefore have directed the migrants to be taken to Marseilles (or Tunis).

But Malta does not want to test France. Last September, the French government had already refused to accept an NGO ship, Aquarius 2, that had declared its intention to take migrants to Marseilles, after it was clear that Italy and Malta would refuse entry.

Towing a migrant boat to a French harbour could provoke France to test the legal basis of Malta’s declaration that it is an unsafe harbour. And Malta could well lose.

So the migrants get to go to Libya because no EU State minds enough to make a fuss. A month ago, the German interior ministry appealed to private rescue missions to halt activities for the duration of the pandemic. If France and Germany don’t lead on the matter, while the other two major western European States, Spain and Italy, are disabled by the pandemic, it would be unreasonable to count on any other State.

Does that dilute Malta’s complicity in the deaths? No. A large conspiracy to endanger people’s lives doesn’t dilute the guilt of the single participants.

In a way, there is something heartening in our prime minister’s grotesque use of language – how sending people to a hellhole is a ‘rescue’; how his conscience, with at least a dozen deaths to nag it, is ‘clean’. It shows he still is moral enough to shrink from what he’s done.