This week, a Maltese court will be the site of a legal drama that touches on many of the most fraught political and legal issues of our time – terrorism, people smuggling and migration. Reading the charge sheet, one could be forgiven for assuming the case concerned dangerous organised criminals. But what lies behind the labels is the story of three teenagers (Amara, Kader and Abdalla – now known as El Hiblu 3) with decent language skills who got on a makeshift rubber boat from Libya, in search of a future.

When they were ‘rescued’ by an oil tanker and turned back towards Libya, a protest erupted on board – and the three teenagers were identified as potential translators and called upon to help diffuse the situation. But when the boat was eventually diverted to Malta and they disembarked, they were stunned to be arrested and charged with extremely serious crimes in relation to their roles on board.

Allegations include that their role as interpreters and negotiators amounted to ‘terrorist acts’, ‘wilfully seizing a ship’ and ‘detaining’ the crew. Despite their young age (15, 16 and 19 years at the time), they were initially incarcerated in the maximum-security wing of the prison and, after seven months, released on bail.

This week, they stand trial for charges that could cumulatively lead to multiple life sentences.

Theirs is a tragic human story that epitomises the vulnerabilities of age, place and circumstances. The case also raises important legal questions, not only about the fate of the young people at the centre of it, that now lies with the Court of Magistrates, but, more broadly, about our laws and criminal practice and compatibility with the human rights commitments of Malta and other EU states.

Whatever its outcome, the case has already prompted probing questions from diverse quarters (including a UN expert, NGOs and academia) as to how we got to the point where these three teenagers were criminally prosecuted at all, never mind under serious anti-terrorism criminal law frameworks.

The El Hiblu 3 case has not happened in a vacuum. A few overlapping trends deserve reflection in Malta and beyond.

First, using criminal law as an instrument of migration control against those trying to reach European soil is growing, despite serious doubts as to effectiveness, fairness or appropriateness of punitive responses. Under the guise of a crackdown on smugglers and traffickers, that, undoubtedly, often do exploit and benefit from the vulnerable and deserve prosecution, states have targeted a growing range of persons, paradoxically including civil society and NGOs seeking to protect lives, and migrants themselves, many of whom are victims of the trafficking and smuggling with which they end up charged.

This trend mirrors another that is even more striking and long-standing – namely the wildfire expansion of what is deemed “terrorism”. For over two decades, since the 9/11 attacks and others that followed on European soil, anti-terrorism laws have ballooned across this region and elsewhere, with onerous criminal law as a tool of choice. Over time, broad and ill-defined ‘terrorism’ and related offences have expanded and been applied in practice to more and more facets of everyday life.

There is no accepted international definition of terrorism and it falls to national legislatures, prosecutors and judges to make sure if terrorism is prosecuted that it is clearly defined, and restrictively interpreted, as required by human rights and criminal law. As UN special rapporteurs and others note, terrorism should be confined to serious violence committed with a ‘terroristic’ purpose, which is what most sensible people associate with the label and what has justified the heightened penalties that apply to it. But practice tells a different story, as epitomised by the El Hiblu 3 case.

If everything is terrorism, nothing is and criminal law becomes an instrument of arbitrariness and abuse of power, not of the rule of law- Helen Duffy

As a practising human rights lawyer, and a professor, I have worked in counterterrorism for decades and am aware Malta is not alone. Examples of disproportionate and, at times, unfathomable ‘terrorism’ prosecutions have arisen elsewhere in Europe and globally, with disproportionate impact on the young and vulnerable and insidious implications for human rights defenders, media, dissenters and many others swept under vague terrorism laws.

As current and former UN special rapporteurs and others have noted, there is a need to curb dangerous trends in over-criminalisation, including of migrants and those who speak up on behalf of migrants. We need to ensure that charges brought and penalties imposed match the conduct and intent of the individuals, taking into account their age and circumstances, as required by human rights and criminal law.

Terrorism charges must not be applied absent a real proximate link between the individuals and clearly defined ‘terrorist’ conduct and intent. The weighty ‘terrorism’ label should not be stretched to cover behaviour that is disfavoured by states but does not correspond to the nature and gravity of the term. Otherwise, the law itself loses its authority and force. If everything is terrorism, nothing is and criminal law becomes an instrument of arbitrariness and abuse of power, not of the rule of law.

The El Hiblu 3 trial may be viewed as a litmus test for how much perspective we have lost on what terrorism means and what criminal law is for. It is certainly a reminder of the human toll of these trends. But it also shines a light on the crucial role of the courts. In many cases over the past 20 years of counterterrorism practice, I have witnessed how courts have shown their worth, rejecting the unforeseeable application of vague laws or prosecutorial overreach, where rights and rule of law were in jeopardy. Concerns that have been voiced in this case about investigative delays, infringements of procedural rights and denial of fair trial and juvenile justice, which compound concerns about resort to criminal law as itself an inappropriate and disproportionate response, should be grappled with by the Maltese courts.

The three young people in this case – two of whom were children at the time – deserve the stringent protection of the law. They are not pawns to be made an example of at the altar of EU states’ commitment to contain migration flows from Libya. To do so would make a mockery of the fact that human rights, including the European Convention in Human Rights, are themselves cornerstones or ‘silver threads’ that run through EU law.

Terrorism and migration are, sadly, toxic political issues that collide in this case. Criminal trials must be about justice. We should look to the Maltese courts to ensure justice is done and human (and children’s) rights are respected, and, perhaps, in doing so, to restore a little common sense. 

Helen Duffy is Professor of International Human Rights and Humanitarian Law at the University of Leiden and runs ‘Human Rights in Practice (HRiP)’, an international law practice specialising in strategic litigation.