The Armed Forces of Malta has gone on the offensive and fired a series of broadsides against the European Union’s border agency Frontex when it was asked to explain the events of a sea rescue coordinated between last 12 and 13 May, basically telling Frontex that it had no mandate on the situation and that it had no right to demand feedback from Malta.

Last May’s incident was a major one, with German humanitarian organisation Sea-Eye and a nearby commercial oil tanker having been involved in a stand-off with the AFM, which, in turn, faced accusations of dereliction of duty.

The 24 passengers of the migrant boat in question were eventually rescued by the Sea-Eye 4 humanitarian aid ship after its occupants were on the open water for six days without food or water, with many suffering from hypothermia.

Those on board had left Benghazi on 8 May and were migrating from Eritrea, Sudan, Chad, Libya, Syria and Egypt. All 24 were eventually taken on board the Sea-Eye 4 where they were given first aid, but only after a great deal of alleged delay from the Maltese side.

Such was the situation that Frontex filed a Serious Incident Report after its aerial surveillance showed a situation of potential threat to right to life, potential inhuman or degrading treatment, and potential violations of fundamental rights or international protection obligations.

‘No right to demand feedback’ – AFM

But when Frontex’s Fundamental Rights Office followed up the resulting Serious Incident Report, the AFM flatly dismissed the allegations and instructed Frontex to mind its own business.

“Maltese authorities consider that the Fundamental Rights Office or Frontex do not have the right to demand feedback on issues that fall outside the Agency’s mandate,” the AFM said in its curt reply to the Frontex probe. “Allegations of boats sinking, being left adrift or hindering rescue are false.”

Frontex, on its part, was more diplomatic, retorting that it, “regrets that Maltese authorities did not provide any detailed information on the initial alert, their assessment and actions taken with regard to the case of the migrant boat or on timelines and locations.

“While outreach by Maltese authorities to the Frontex Surveillance Aircraft and, as alleged by Sea-Eye, their communication with the commercial vessel points to a certain level of coordination, no further details on such activities were obtained.

“The Maltese authorities did mention their dedication to ensuring safety, including where rescue is not possible, but specifically, did not elaborate further on the role of the commercial vessel Ross Sea, the instructions provided to it, or possible coordination with surface assets available to support the SAR Operation including the NGO Sea-Eye 4 to ensure that the rescue was conducted without undue delay.”

The allegation among humanitarian NGOs is that Malta regularly allows migrant ships to conveniently slip out of its search and rescue area, a point which Frontex appears to allude to in the SIR’s recommendations when it asks Malta to, “Request Frontex support inside its search and rescue zone whenever necessary to save lives and when protection of other fundamental rights is at stake.”

The report also instructs Malta to, “provide information in a transparent manner about search and rescue operations based on or correlating with Frontex sightings, including in particular in the context of a Serious Incident Procedure and inquiry by the Fundamental Rights Office”.

The Fundamental Rights Office also asked Frontex to “offer to Malta support in search and rescue operations coordinated by Malta in the Central Mediterranean Sea including inside the Maltese Search and Rescue region when the Agency is aware that loss of life and protection of other fundamental rights are at stake”.

Putting paid to Malta’s claims that Frontex had no right to demand explanations over the event, the Fundamental Rights Office asked Frontex to “clearly communicate and sensitise national partners to the Serious Incident Reporting framework applicable to all participants in Frontex activities including explicitly Frontex multipurpose aerial surveillance activities, and national authorities’ rote in supporting related investigations by the Fundamental Rights Office” to avoid any room for doubt in the future.

It also asked, as a result of the case, for the agency to engage in a dialogue on the definitions of vessels in distress and criteria of references to classify when a vessel requires prompt intervention to be rescued.

NGOs accuse Malta of intentional inaction

During the incident, the Ross Sea oil tanker approached the migrant boat but was merely instructed by the Malta rescue coordination centre to stay put and to monitor the boat from a distance.

Sea-Eye chairman Gorden Isler said at the time in a statement: “We regularly receive no response from the rescue centre in Malta during maritime emergencies. Why didn’t Malta directly ask Ross Sea to rescue the people? Malta did not send any help for three days. By now, Malta stops at nothing to prevent people seeking protection from being able to reach Malta.”

If Malta had promptly coordinated the rescue and allowed it to be carried out by the Ross Sea, he said, Malta would have had to take in the people as it was the next port of call.

In its report, the Fundamental Rights Office remarked, “The Office would consider in general that withholding assistance to a boat that has been in water already for a considerable number of hours or days not only puts the lives of migrants in danger but could amount to a case of inhuman and/or degrading treatment and violation of human dignity.

In a statement of its own at the time, migrant NGO Alarm Phone took the AFM to task for its “shocking behaviour” and “cruel non-assistance policy”.

“They endangered these lives by refusing to rescue or to coordinate a rescue operation. The boat was in severe distress but the Maltese authorities did not care whether the 24 people on board would survive or not.”

Malta ‘exercises duty of care in all cases’

In its to and fro with Frontex, Malta took exception to the accusations, insisting, “SARcoordination is a state competence. Maltese authorities monitor all cases in their search and rescue zone with cases evaluated and classified accordingly by the competent search and rescue authority as per applicable SAR convention.

“Maltese authorities exercise duty of care in all cases and note that no forceful rescues can be conducted but that necessary measures will be taken to ensure safety which depend on the circumstances of the case. Considerations also include characteristics of the vessels on-site such as safety of crew, nature of cargo and Limits of manoeuvre.”

The Office concludes further that the boat was not adrift, as reported initially, but at least partially mobile after it was first detected by the Frontex Surveillance Aircraft, as Malta had insisted.

“Information provided by Maltese authorities and vessel tracking data are consistent in suggesting that the migrants encountered Sea-Eye 4 north of the place of Frontex sighting. The distance between the Frontex sighting location and location of Sea-Eye 4 U-turn amounts to approximately 70 nautical miles in NW direction whereas Maltese authorities have claimed that migrants were rescued 90 miles northwards after having covered 250 nautical miles since the beginning of their journey. Mission reports and briefings from the concerned area and period, analysed as part of fact-finding, document wind and currents mostly from N/NE/NW. Such weather conditions would have pushed the migrant boat south.

The fact that the boat was not drifting, in fact, is what let the Maltese authorities off the hook for not having acted promptly enough. The Fundamental Rights Office, given the data, “excludes the possibility that the boat drifted all the way from the point of sighting to the point of rescue.

“Instead, it can be concluded that the boat was, at least partially, mobile moving to the point of eventual rescue, which is a finding in line with the explanation provided by Maltese authorities.”

The Fundamental Rights Office still, however, found that the migrants were eventually rescued by the Sea-Eye 4 10 hours or more after having been first sighted by Frontex, and two days after being first located by the Italian MRCC.