The Case of Abdullahi Elmi & Aweys Abubakbar: Violation of Human Rights

In November 2016, two Somalian minors, Abdullahi Elmi and Aweys Abubakbar, entered Malta by boat unaccompanied (Abdullahi Elmi and Aweys Abubakar v. Malta, 22 November 2016). Once caught by the Maltese forces, they were kept in the Safi Barracks detention center for a period of eight months, where they claim to have been mistreated, later challenging the Maltese government in the European Court of Human Rights Judgement (ECtHR) (2016, §71). Their claims for being mistreated were that they were not informed in a language they could understand of what was happening, and therefore could not challenge their detention, and the detention center itself was not suitable for their age group (2016, §71). According to the two minors, they were intimidated by the other grown men in the facility, did not have access to recreational activities, nor to psycho-social help, could not contact the outside world, and did not have access to quality medical care (2016, §71). This made the two boys feel mistreated and unsafe, as they couldn't comprehend what was happening, and they did not have any form of protection while in the detention center (2016, §86).

The case was brought to the ECtHR, where it was ruled in the two boys' favor, agreeing that the circumstance from which they could not escape was degrading, unbefitting, and unlawful as they are counted as vulnerable people since they were minors (Abdullahi Elmi and Aweys Abubakar v. Malta, 22 November 2016). The court agreed that they were not provided with the necessary tools needed to challenge their detention in a reasonable fashion and that the detention was lacking a purpose, as they were not in the facility to prevent unlawful entry in the country and were not preparing for deportation (Abdullahi Elmi and Aweys Abubakar v. Malta 22 November 2016); it was simply not the suitable approach for them, nor the correct one according to the laws and policies in place.

Theories

The approach the Maltese government took regarding the two boys was utilitarianism punishment. The utilitarian theory approaches the matter of punishment from a juridical perspective, which focuses on prevention and deterrence: punishing those at risk before they have a chance to commit a crime (Smart and Williams, 1973). Another aspect which the theory takes in accord is the safety and well-being of society, putting it ahead of single individuals (Smart and Williams, 1973). Utilitarians are ready to make an example of someone if it benefits society, to further deter others from committing crimes as they are shown what happens to those who break the laws (Bentham, 2000). They did advocate for humane punishment however, despite the preventive approach which would not necessarily make punishment an outcome of an offense (Beccaria et al., 1995): their hope was that the punishment would be proportionate and tailored, but also severe enough as to deter (Beccaria et al., 1995).

Utilitarianism can be directly seen in this case as the two minors were held in the detention center before they could commit any crimes. They were assessed by the Maltese government to have a possibility of breaking laws regarding entering the country and were therefore preventively punished. What the Maltese government forgot however, is that the suspects were minors and did not fully have the capacity to comprehend why they were being punished (2016, §86), making the 'punishment' rather pointless, as they were not able to understand why they were in the detention center and were not capable of comprehending their potential wrongdoings.

They were indeed prevented from committing further crimes, which fulfilled the purpose of the utilitarian theory of punishment. Unfortunately, however, it was not at all suitable for those affected. Children are not able to comprehend such complex issues and were only left scared and unaware of what was happening, not fully aware of the possible consequences of their actions (2016, §86). Additionally, the main point of utilitarianism is to help deter the wider society from such crimes being committed by exemplifying the punished individuals, however, it is unlikely that other minors from disadvantaged countries would hear of this case in order to be deterred from crossing borders unaccompanied.

Therefore, utilitarian punishment has been applied to the case of Abdullahi and Abubakar, but it taught no one a lesson. It did not even serve as a deterrence, as the two boys were already in the country and were not being prepared for deportation (Abdullahi Elmi and Aweys Abubakar v. Malta 22 November 2016). The wrong theoretical approach is applied to a complicated issue.

National and International Laws

Malta itself has legislation in its 'Children and Young Persons' act, which states that any minor found in the country is to be treated the same as Maltese national children, and if found unaccompanied, to be offered 'child-friendly' interviews in order to best assess their case (2016, §31).

Additionally, the Maltese national laws put in place by the Agency for the Welfare of Asylum Seekers, dictate that the minors should have been given a safe residential setting, where education, socialization skills, preparation for legal employment, recreational activities, and cultural orientation should have been offered (Agency for the Welfare of Asylum Seekers, 2013). The act also dictates that asylum-seeking minors should have been offered support in understanding the local language (Agency for the Welfare of Asylum Seekers, 2013).

According to the United Nations Convention on the Rights of the Child, which Malta was a part of, unaccompanied asylum-seeking minors needed to have been offered suitable accommodation based on their age (UNICEF, 2010). The legislation also spells out the right to have access to corresponding with the outside world: families or friends from the country of origin (2016, §37).

The Maltese government does hold the power through the Maltese Immigration Act to choose who enters the country and restrict access to its borders (The Maltese Immigration Act, 1970). The laws also state that those newly arrived illegally in the country may be placed in a detention centre temporarily until further status can be discussed (The Maltese Immigration Act, 1970).

Discussion

The case of Abdullahi Elmi and Aweys Abubakar v. Malta is firstly one concerning crimmigration: the term used when criminal law and immigration meet (Garner, 2015). More efforts and resources are being put on policing borders than before, tightening the control (Loftus, 2013).

Some scholars argue that practices around criminalizing immigration can have racist undertones, as it encourages a 'global apartheid' as rich countries and economies seek to keep the resources for themselves, being reluctant to share them with immigrants from less fortunate nations (Garner, 2015). Some EU countries such as Italy have seen a disproportionate number of immigrants in their prisons (Gatta, Mitsilegas, and Zirulia, 2021), which can be caused by their lack of ability to settle in the country due to neo-nationalism and some of the country's unwillingness to integrate the newly arrived immigrants (Gatta, Mitsilegas and Zirulia, 2021).

Undertones of racism and unwillingness to socialize with immigrants can be seen in the Maltese case in question. The two boys were not offered a translator or any language lessons in order to help them integrate (2016, §71). They were left for eight months in a detention center without any help to fit into the country they have arrived in, nor was a translator ready to help them out. They had been offered a leaflet on what they were entitled to, their responsibilities, and obligations, but it was in the Arabic language, which the boys did not speak, and no further effort was made to translate the material in a language they could comprehend (2016, §9).

Additionally, it is argued that the focus on crimmigration laws and policing is a waste of precious resources and time, as it is a very lengthy process and wastes the policing force's efforts (Stumpf, 2011). Stumpf further argued that punishing someone for unlawfully entering a country only punishes them once and does not have long-term consequences, allowing the immigrants to attempt to enter the country again and again (Stumpf, 2011).

This can be seen in the Maltese case, that the process was indeed quite lengthy for the two boys in detention, and whatever resources they were provided, did not benefit anyone. Certainly not the boys, who could've suffered psychological instability (2016, §51), and were highly neglected in their needs (2016, §76). The Maltese government didn't have anything to gain from this ordeal either, as they had only failed to provide the basic requirements of two vulnerable people who were unlawfully detained; they were not allowed to integrate with the Maltese society or attend school and were simply kept in the detention center. So that brings the question, if no one had anything to gain from this whole process, what were (what little of there are) resources there for? There was no proper next-step plan for months and the money spent on the detention center which had been used to unlawfully detain two boys could have been better spent.

Crimmigration as a whole is largely better debated in the context of the refugee crisis which has been a major topic in Europe for the last decade. There has been a large debate about whether immigrants from other countries should be allowed in Europe, and in what quantities (Agust­in and Jorgensen, 2019). Immigration as a whole is a very complex issue, where the well-being of the receiving country has to be weighed in (as a country can only house so many refugees with its resources), but also the morality of helping disadvantaged people in desperate need, people who often flee from war, poverty or abuse (Agustin and Jorgensen, 2019).

To better put the issue of immigration into perspective relating to the given case, the way the German government is approaching the asylum-seeking issue will be briefly described and compared to the Maltese approach. Germany had the second-largest immigrant population in the world, counting at around 12M in 2015, making that up to be almost 15% of its entire population (World Bank, 2017). However, the Germans have taken a different approach, by placing asylum seekers in 'welcome centers', often referred to as camps however, where they can wait for the decision on whether they can remain in the country or not (Gomez and McKanders, 2017). The country also does not detain asylum seekers, unless they violate specific laws, as they do not wish to re-traumatise them (Gomez and McKanders, 2017). Not only are the camps free to move around in, and out of, and are run by volunteers, but its residents were given freedom of movement by offering them donated bicycles in some cases (Gomez and McKanders, 2017). This generally shows good intent and a nice welcome, despite the difficulties around housing so many people, and the at times displeasure shown by the public (Engler, 2016).

To fall back to the Maltese approach regarding asylum seekers, the data indicates that there were over forty-one thousand immigrants in Malta in 2015, making almost 10% of the population, making Malta one of the countries with the least taken in immigrants in the EU (World Bank, 2016). Malta has quite harsh policies regarding immigration, however, having a mandated detention period of 18 months in many cases (Mainwaring, 2012). The staff in these centers is staffed mostly by personal coming from a security background, which is not adequately trained to deal with such a vulnerable population (2016, §81). Given that the centers are that of detention, they were only permitted limited access to exercise outside (2016, §92). Additionally, the conditions of such detention centers have been described as being poor through the years, with small improvements and renovations being noted but still not being fully suitable for housing so many people in a fair manner (Abdullahi Elmi and Aweys Abubakar v. Malta, 22 November 2016).

The conclusion that can be drawn from here is that the Maltese government can look towards other European examples of countries that have encountered a big wave of immigration and adapt suitably to those seeking a better life in Malta. The German example is fantastic, even if it has been known to cause disputes with its approach (Delcker, 2015). It is however important to maintain the same human rights to everyone, to allow everyone to have access to their basic human needs in a modern, suitable fashion, to the best capability of the given government.

Reflection

The case study was quite odd at first, but the deeper I dwelled into it, the more interesting it became. The story of two boys who managed to find themselves half a continent away from their previous lives and how they have been mistreated by a modern, 1st world country that should have protected them and attempted to offer them a better life, is fascinating. It is quite sad to hear stories regarding children being harmed by a system they have been put into, without them understanding why what is happening to them happens so.

Immigration has always been quite a difficult subject to discuss, with opinions varying. The research conducted for this case study has only furthered my belief that not enough is done for those who seek help from another country. Human life is a human life, regardless if it originates from Africa or Europe. What is most important are the lives of the children who are our future. In this case, they were mistreated and there was no attempt to socialize them or help them integrate.

It is important to remember that human rights are not only at times misused in poorer countries but in modern Western ones, too. There are delicate acts that can easily be ignored, but they mustn't be. It is a good lesson that taught me that regardless of the position of whoever stands in front of you, they should be shown respect and to ensure that their rights are in place; that they are aware of them, and are in full capacity to exercise them. It is just as important as enforcing human rights, as it is to make the vulnerable aware of them in order to show them aware of where they stand, and what they have a right to. This allows people to not be mistreated or taken advantage of. However, it is disheartening to see instances where these rights had been violated, highlighting the urgent need for greater awareness and protection. In general, this is a good lesson as a criminologist as to remind those you work for of their rights, and to take the time to explain them in a language they comprehend is crucial to ensure their well-being and safety.

References

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