Legal experts are split over the legality of Malta’s decision to coordinate the rescue and eventual return of a boatload of migrants to war-torn Libya over the Easter weekend.

Prime Minister Robert Abela has admitted commissioning a boat that returned migrants to Libya but has insisted it was a “rescue mission” and not a pushback.  

While one expert insists that Malta’s behaviour was tantamount to a pushback and was therefore illegal, another said the rescue and handing over to the Libyan coastguard took place in international waters and was therefore not in breach of international law.

The government has faced criticism over its decision to coordinate the return of migrants to Libya by engaging a private fishing vessel to pick them up from a sinking dinghy and hand them over to the Libyan coastguard, which then took them back to migrant camps.

But there seem to be divergent views on the legality of what the government chose to do.

One other expert said he believed that what the government did was both illegal and immoral as there are enough reasons to believe that these people will be subjected to inhuman and degrading treatment or even torture in Libya.

“The government tried to circumvent the law by deploying non-state assets to assist or coordinate the pushback. What it did was still illegal as it abdicated its responsibilities to rescue these people and prevent them from facing inhuman or degrading treatment by being sent back to a country where, in all probability, this will happen.

The government tried to circumvent the law by deploying non-state assets to assist or coordinate the pushback

“Libya is complicit in people trafficking, even if indirectly, by not deploying vessels to rescue people trying to cross the Mediterranean. This is a crime against humanity. Libya is also complicit in people trafficking, even if indirectly, by not taking a firm stand against the traffickers,” the expert said.

He added that the government used this method so that it would be more difficult for the Maltese courts or the European Court of Human Rights to intervene.

“They tried to circumvent the law but what they did was still illegal under international law,” the expert noted.

Legal considerations aside, he said that what happened was “totally immoral” as you cannot allow people to be sent somewhere where they face the real risk of torture or inhuman or degrading treatment.

But another source gave a different perspective to the issue, saying that in his view, since the matter happened on the high seas and in international waters, Malta did not breach international law.

“The OPM coordinated a mission on the high seas and out of the search and rescue zones. The closest port was Libya so they made sure that the closest port went out to retrieve them.

“It was an operation of safety rather than pushback,” the source said on condition of anonymity.

The fact that the government used former OPM official Neville Gafà to achieve this, he said, raised eyebrows but the government engaged in the return of migrants to the closest port, according to international rules. Malta was not legally obliged to rescue these migrants.

In February 2012, the European Court of Human Rights found Italy guilty of gross violations of human rights after a group of migrants were pushed back to Libya by Italian military vessels in an operation that took place outside Italian territorial waters and which was carried out pursuant to non-secret bilateral agreements between the two countries.

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