It is unlikely that the complaint filed before the International Criminal Court against Malta will lead to a case being instituted, according to legal experts.

An Italian confederation of consumer organisations (Codacons) on Monday filed reports with the ICC and the International Court of Justice repeating Italian Home Affairs Minister Roberto Maroni’s claims that. on May 29, Malta had “washed its hands” of a boat in distress with 209 migrants aboard in the island’s SAR zone and that it had passed the buck to the Italian authorities.

Malta said the drifting boat of immigrants was indeed in its SAR area but it was 126 nautical miles away from Malta and just 50 nautical miles south of Lampedusa.

The NGO might be knocking on the wrong door. While the ICC might take up a report by an NGO or an individual, investigate it and start prosecution only a State can start a case against another in the ICJ.

Human rights lawyer and lecturer Neil Falzon believes the matter is too trivial to be taken up by the Court, which handles cases of genocide and mass breaches of human rights.

“The ICC is an international court that deals with human rights crimes on an enormous scale; genocide, war crimes, crimes against humanity... I doubt it would take up the case against Malta,” Dr Falzon said.

Similarly, Jon Hoisaeter, representing the UN High Commissioner for Refugees in Malta, said: “One may question whether these are the most appropriate and relevant institutions for Codacons’ request for an assessment of the specific responsibilities that apply within the Maltese search and rescue zone”.

The consumer organisation’s complaint hinges on the presupposition that Malta did not do its duty in its own SAR area.

Codacons president Carlo Rienzi said the organisation’s aim was “to ascertain whether a state is violating international norms that oblige asylum and help to those who find themselves in difficulty at sea”.

“We’re trying to see if what we read on the papers is true. The last report we read was that the Maltese authorities did not assist a boat and asked Italy to handle it. If this happened, it would be very serious. It seems that no boats land in Malta... why is that,” Mr Rienzi asked.

When faced with the Maltese government’s oft-repeated explanation that Lampedusa – Italian territory – would be 100 miles closer than Malta, Mr Rienza insisted that the Court at The Hague would see the Guardia di Finanza’s reports and if “it sees that Malta did not assist them in its territorial waters, then it could open international proceedings against the perpetrators”.

An SAR region, international law expert Patricia Cassar Torregiani explained, was a specific area in which a particular state has the responsibility to coordinate rescue operations.

The SAR Convention laid down that it was the states’ responsibility to cooperate with other rescue coordination centres to identify the most appropriate place(s) for disembarkation of persons found in distress at sea and whenever necessary cooperate with neighbouring states, Dr Cassar Torregiani said.

Malta was not party to a treaty signed in 2004 that placed the burden on the state operating the SAR region to receive passengers in distress.

“Italy has accepted the 2004 amendments while Malta has exercised its sovereign right and formally objected to the 2004 amendments as well as IMO’s circular (which would bind Malta to take migrants rescued in its SAR). Malta continues to follow its long-term practice and international law obligation that disembarkation should occur at the nearest safe port to the site of the rescue, which in the Maltese SAR areas is often a port in Italy,” Dr Cassar Torregiani said.

“Legally, both states are in the right”.

While acknowledging that the issue of disembarkation had been a “contentious one” for some time, Mr Hoisaeter said “disembarkation at the nearest port is often a preferred option”.

“There are situations when urgent health and safety considerations would require that those rescued are brought to the nearest safe port of call. This is also recognised by the new Frontex guidelines. Hence, this is clearly not an illegal act.

“In cases where disembarkation at the nearest port of call may not be possible or the most appropriate option, it can become a question of defining the responsibility of the country coordinating the rescue. On this Italy and Malta are not always in agreement,” Mr Hoisaeter noted.

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