As European Democratic Lawyers (AED)
we are deeply concerned about the proceedings against two minors and a nineteen-year old, who have been under investigation by Maltese authorities for almost a year.
In the night from 25th to 26th of March 2019, a rubber boat left Libya with approximately 114 people on board, including 20 women and at least 15 children. The boat was rescued by the oil tanker El Hiblu 1
. A few hours later, the rescuees realized they were being returned to Libya.
As described by testimonies, scenes of despair and panic started, with many shouting that they would rather die at sea than be returned to Libya. According to the information gathered by Amnesty International, at no point during the journey did the rescuees engage in any violent action against the captain, the chief officer or any other member of the crew. While the precise circumstances of the events on the El Hiblu 1
will be established at a later stage, nevertheless the responsible crew members of El Hiblu 1 decided to direct the vessel towards Malta. Maltese military escorted the ship to Malta where the passengers disembarked.
Three of the rescued passengers – two minors (15 and 16 year old at the time) as well as a nineteen year old teenager were immediately arrested and imprisoned for eight months. They were released on bail in the end of November, 2019 and are known as the "El Hiblu 3".
Maltese authorities charged the three teenagers with a series of grave offences, including acts of terrorism as well as for allegedly hijacking the ship and forcing it to go to Malta. Some of these crimes are punishable with life imprisonment. An inquiry is ongoing in Malta to gather evidence, which will be submitted to the court once the Attorney General issues a formal indictment against the youth.
The association AED
is concerned that Maltese authorities are not appropriately taking into account European and International law, including the fundamental rights of refugees and migrants in distress at sea and the human rights of vulnerable groups like minors.
As lawyers we would like to underline the regulations to be followed:
Sea rescue to a place of safety (POS) is a fundamental right
1. The Law of the Sea
and international customary law contain the obligation to rescue at sea and determine how this is to be carried out in detail.
2. According to the Hamburg Convention, followed by others, a place of safety1
is the place where rescue operations are considered to terminate because the survivors’ life is no longer under threat and their basic human needs (such as food, shelter and medical needs) can be met. A place of safety in no way jeopardises their fundamental rights, since the notion of ‘safety’ extends beyond mere protection from physical danger and takes into account the fundamental rights rather than the place of disembarkation. The need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened has to be taken in consideration as a legal principle of international and European law.
3. International agreements, which includes the EU, state Libya, very clearly, is not a place of safety
for the disembarkation of refugees and migrants rescued at sea. UN and European human rights reports document systematic human rights violations against migrants in Libya, including unlawful killings, arbitrary detention, torture and inhuman detention conditions, alarming rates of malnutrition, sexual and gender-based violence including gang rape, slavery, forced labour and extortion.2
4. In addition, EU Member States have to respect their obligations under international refugee law (non-refoulement principle of the 1951 Refugee Convention)
and human rights law
: the protection against torture and inhuman and degrading treatment as an absolute right and the right to life based on the European Convention on Human Rights/ ECHR
. According to ECHR
settled case law, the security of the place of safety refers principally to the physical security of the individuals involved but also, to the effective possibility to request asylum. These obligations exist wherever states exercise jurisdiction in the meaning of effective and exclusive control, including places outside their territory e.g. on the high seas.3
In the light of these clear responsibilities resulting from the ECHR
, likewise the principle of non-refoulement of the Refugee Convention has to be interpreted in the same manner: the principle of non-refoulement binds states in each moment of effective and exclusive control.
5. Taking the above into consideration, any instruction of a State to disembark rescued people in Libya is an unlawful order and a violation of several international and European laws. On the one side non-state vessels and their
shipmasters have the duty and obligation to obey lawful orders. On the other side, they have the legal obligation to the national constitutions and domestic laws not to become partners in crime and not to obey unlawful instructions violating international and human rights law. Confronted with these conflicting obligations, they are independent not to obey unlawful orders and the people who issue them. Since the Nuremberg trials following World War II, it is clear that individuals must not obey orders of state representatives if these orders violate international and human rights law: “The justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.”4
6. Considering the above mentioned legal situation, the refugees on board of the El Hiblu 1
acted to defend their right to life and their absolute right of not being subjected to torture, rape, slavery and other cruel and inhuman treatment, as forbidden in international and human rights treaties. In a similar case, the Tribunal of Trapani acknowledged the proportionality of the defendants’ acts, since the right to life and not to be subject to inhuman or degrading treatments cannot be limited by the right of the crew. In the eyes of the judge, if such defensive actions had not been taken, the migrants would have been surely brought back to Libya. The natural necessity of those actions has to be acknowledged since the defendants did not have the possibility to escape the vessel and its destination.5
Especially important in the El Hiblu 1
Case is the young age of the minors who tried to save their and the life of all other people on board having in mind what would happen to them if they returned to the “hell of Libya”. There are strong indications that their actions on board were justified under the legal institute of self-defence.
1 1979 Hamburg Convention, which provides that the State that conducts a rescue operation – even if not in the SAR zone of its competence – is responsible for the landfall and the disembarkation of the individuals in a safe harbour (the so called place of safety, POS); two supplementary protocols to the SOLAS Convention (Ris. MSC. 153 (78), 20 May 2004) and the SAR Convention (Ris. MSC. 155 (78), 20 May 2004), which entered into force on 1 July 2006 and the Guidelines in the Treatment of Persons Rescued at Sea, IMO Resolution MSC.167(78), 10. Mai 2004, IMO Doc. MSC 78/26/Add.2, Annex 34; (IMO, Facilitation Committee, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, IMO Doc. FAL.3/Circ.194, 22. January 2009; Council of Europe, Res. 1821(2011) on the Interception and rescue at sea of asylum seekers,refugees and irregular migrants, 21th of June 2011)
3 ECtHR (GC), Hirsi Jamaa et al. v. Italy, Ap.No.27765/09, 23.02.2012, para 73, 76 et seqp>
4 United States v. Keenan, Court of Military Appeals, 39 C.M.R. 108, 110 (1969)
5 Date of Decision: 23-05-2019, Tribunal of Trapani/ Italy, https://www.asylumlawdata.eu/en/content/decision-tribunal-trapani-preliminary-judge-23-may-2019
AED calls on Maltese authorities
• to fully implement all obligations stemming from international, European, human rights and refugee-law as well as the obligation regarding the UN Convention on the rights of the child;
• to respect the right of justified self-defence against unlawful acts subjecting people to torture, rape, slavery and other cruel and inhuman treatment forbidden in international and human rights law;
• to ensure that fair trial guarantees are fully upheld;
• to ensure, that the defendants have adequate access to all their rights without any kind of restriction;
• to recognize that the defendants are vulnerable minors with special needs to be met and to implement all obligations resulting from the UN Convention on the rights of the child in this regard;
• to stop any kind of cooperation with Libya on migration, ensuring the respect of the rights of refugees and migrants in the country.
• We therefore strongly recommend the establishment of an independent trial observation regarding the criminal proceedings against the “El Hiblu 3”. We call on democratic society to observe the trial and the future of these youngsters.
Madrid, Barcelona, Paris, Rome, Amsterdam, Istanbul, Berlin, Brussels, Athens
Founded in 1987, the Association of European Democratic Lawyers (AED) is a confederation of trade unions and lawyers' organizations with the same democratic, modern and humane ideals in Europe.
The AED intends to defend the rights of citizens by preserving the independence of lawyers with regard to any political, social, economic or ordinal power.
As a professional organization, its international purpose is to ensure respect for the rights of the defense and, in particular, to safeguard the physical integrity and political and economic freedom of lawyers.
The association also works to ensure that all individuals have access to national and international judicial appeals, particularly those who are in the most precarious situations and whose basic rights are not recognized or poorly recognized.