30. June 2022

EU-countries violate human rights to keep refugees and migrants out

Pushbacks of refugees and migrants along EU’s external borders, has become an integrated part of EU’s migration politics. NGO’s and experts agree that EU countries are violating international human rights law.

A migrant and her children are rescued by the Royal National Lifeboat Institution after attempting to cross the English Channel. It is a dangerous route, where several migrants and refugees have experienced pushbacks in the past years.

On the 2. February 2022 the bodies of 19 migrants were found on the border between Greece and Turkey. They had been stripped of their clothes and shoes. They had all frozen to death.

Greece has since been accused by Turkey of forcing the 19 migrants back across the border, to prevent them from applying for asylum in Greece. This narrative has been rejected by Greek authorities, who maintain that it is Turkey who turns a blind eye to the people who attempt to cross the border, and bear the responsibility for the deaths.

The story of the 19 dead migrants on the border between Turkey and Greece is not the first of its kind. When refugees and migrants are forced back in this manner, back to the countries or the waters from which they came, it is called pushbacks – and it is a practice that has been documented on the border between Greece and Turkey for many years.

But pushbacks do not only occur on the border between Greece and Turkey. It is also happening in the English Channel, on the border between Poland and Belarus, and in the waters between Italy and Libya.

NGO’s and experts agree – they say that pushbacks violate international human rights law.

In spite of the critique raised against pushbacks, the EU Commission is currently in the process of expanding the controversial practice, through a proposal that would change the rules governing the Schengen Area.

The Commission is proposing, amongst others, to limit the number of border crossings, increase border controls, and allow Member States of the EU to send people on the border back in emergency situations. These changes will improve the governance of EU’s external borders, the Commission argues.

NGO’s and human rights experts see it very differently.

Martin Lemberg-Pedersen, Head of Policy and Society at Amnesty International in Denmark, fears that the proposed changes of the rules governing the Schengen Area will lead to more pushbacks.

“We fear that the changes would essentially institutionalize the possibility for pushbacks”, says Lemberg-Pedersen, who has formerly researched Western asylum, border, and deportation practices, and is one of the leading experts in this area.

Widespread practice

Pushbacks have, since the refugee crisis in 2015, become a widespread practice at European borders.

One of the explanations for the widespread use of this practice is that European states – according to international human rights law – are required to give foreign citizens the opportunity to apply for asylum, when they have first cross the border to a European country.

“This is something European states have agreed to and committed to, but do not like anymore. And now they think they can escape from their responsibility, and reduce the number of refugees on their territories, simply by pushing people away”, Matteo de Bellis, a researcher in migration and asylum from Amnesty International, explains.

A pushback commonly occurs with refugees and migrants being met with threats, force, harassment, or violence by border- or coast guards, when they attempt to cross a European border, or try to reach European waters.

Another pushback method that has been documented, is the removal of refugees and migrants from motorboats onto dinghies without motors, and thereafter leaving them to drift at sea.

Pushbacks can also occur with refugees and migrants being picked up at sea, and thereafter brought back to where they came from before they attempted to cross the border.

There are several actors involved in pushbacks. First and foremost, there are the EU Member States, who themselves manage their external borders on both land and sea.

Beyond that, the EU is itself involved by, amongst others, entering into agreements, that are associated with pushbacks.

The EU has entered into and supported a number of deals, where economic benefits are given to non-EU countries, who in exchange agree to stop migration flows to Europe. The EU has signed such agreements with countries like Turkey and Libya, two countries that refugees and migrants commonly travel to the EU from.

Finally, the European border- and coast guard agency, better known as Frontex, has also been accused of pushbacks. Frontex is responsible for the governance of the Schengen area, where they patrol borders and coasts. NGO’s have documented that the agency has been implicated in pushbacks of at least 957 asylum seekers in the Aegan Sea.

The Turkish Coast Guard rescue a group of refugees and migrants in the Aegean Sea on the 2nd July 2021. The Turkish Coast Guard say they were pushed back out to sea by Greek border guards.

Photo: Ivor Pricket/New York Times/Ritzau Scanpix

A problem of considerable size

Human Rights Watch, Amnesty International and the Danish Refugee Council, all state that the practice of pushbacks is a problem of considerable size.

Pushbacks have been documented on the border between Greece and Turkey, in the English Channel between England and France, on Croatia’s borders, between Italy and Libya, in Hungary, between Spain and Morocco, on the border between Poland and Belarus, and in Tunisia.

It is difficult to state exactly how many pushbacks occur along European borders, as many of them go unreported. Nonetheless, estimates gathered by a range of NGO’s and newspapers give an indication of the size of the problem.

In a report from 2021, Amnesty writes that more than 1.000 refugees and migrants experienced pushbacks on the Greek border between November 2020 and April 2021.
The Italian government signed an EU-sponsored agreement with the Libyan government in 2017. This agreement led to more than 32.000 refugees and migrants being pushed back to Libya only in 2021, says Matteo de Bellis, from Amnesty International.
According to an investigation by The Guardian, Frontex has been involved in pushbacks on European borders of at least 40.000 asylum applicants since the beginning of the Corona pandemic. These pushbacks are linked to the death of more than 2.000 people.

In the last few years we have seen European member states persisting with a policy of exclusion that is designed to keep refugees and migrants out at all costs.
Matteo de Bellis, researcher on asylum and migration at Amnesty International

Deterrence

It is with the above underpinning that experts and human rights organizations agree that pushbacks along the European borders are both widespread and systematic. And there is even much to indicate that pushbacks have become an integrated part of EU’s migration policy.

In fact, in a research article, Thomas Gammeltoft-Hansen argues that the European approach to refugees and migrants is based on deterrence. Gammeltoft-Hansen is a professor with expertise in migration and refugee law, from the Faculty of Law at the University of Copenhagen.

The deterrence happens in numerous ways. For example, through the pushbacks that European states, the EU and Frontex are involved in.

It also happens by decreasing the number of legal border crossings, to criminalize those who attempt to cross the borders to a greater extent.

In the past couple of years, pushbacks have also in certain contexts happened in conjunction with pullbacks, another form of deterrence. This is the case in the territorial waters between Italy and Libya, where the Libyan coast guard pull back refugees and migrants who attempt to cross the sea to Italy.

All of the methods listed above, have as their ultimate aim to decrease the number of refugees and migrants that cross European borders, Gammeltoft-Hansen writes in the article.

Martin Lemberg-Pedersen from Amnesty similarly argues that there is, amongst certain governments, an idea that the above methods have a deterrent effect on the people who are considering crossing European borders.

“However,” says Lemberg-Pedersen, “basing one’s migration policy on deterrence is an extremely dangerous, cynical and human rights abusive road to go down”.

The Schengen Area was established in 1955. It abolished border checks at EU’s internal borders. This means, for example, that as a Danish citizen, you do not need to show your passport when flying to Italy. The Schengen Area is considered one of the most important initiatives from the EU in terms of European integration. Within the Schengen Area free movement is guaranteed for citizens of all EU Member States. This means that citizens can live, study and work in any of the countries encompassed by the Schengen area.
Today, the Schengen Area encompasses 26 countries. All EU countries, except for Ireland, Bulgaria, Croatia, Cyprus and Romania, are part of the Schengen Area. However, four non-EU states, Norway, Switzerland, Iceland and Liechtenstein, have joined Schengen.
As a counterpart to the free movement within the Schengen Area, border controls are tightened at the external borders. The Schengen countries therefore agree to establish more or less similar rules in relation to border control, and to increase their cooperation to fight illegal migration.

Changing the Schengen rules

There is not much to indicate that the EU’s current approach to migration will change anytime soon. On the 14th of December 2021, the European Commission released a proposal to update and reinforce the rules governing the Schengen area.

The Commission states that the aim of the proposed changes is to improve the governance of the external borders of the Schengen area. They want to increase efficiency and deal with the “instrumentalization of migrants”.

The term “instrumentalization of migrants” is used by the Commission to refer to those situations, where migrants are taken advantage of for political purposes. Specifically, to put pressure on EU’s external borders.

This specific phenomenon has been documented recently on the border between Poland and Belarus, where Belarus has been accused by Poland of using refugees and migrants as a political instrument against the EU, by attempting to escort a large number of refugees and migrants to the Polish border.

To address the “instrumentalization of migrants”, the Commission proposes decreasing the number of border crossings, treat asylum applications at the border, and additionally, the Commission wants to open for the possibility of imposing a fast-track procedure for returns in emergency situations.

The Commission’s proposal now lies with the European Parliament, who will decide whether the changes will be implemented.

Amnesty has warned against the Commission’s proposal. They say that deviations from normal asylum-standards based on a vague term about “instrumentalization”, will only increase the risk of illegal pushbacks along European borders. They furthermore maintain, that the possibility of imposing a fast-track procedure could violate the rights of asylum seekers.

Danwatch has been in contact with EU’s Department of Home Affairs and asked them to respond to the critique from Amnesty. In their written reply they state that the term “instrumentalization” demands a certain degree of flexibility, to be able to encompass different scenarios. They furthermore assess that several of the proposed changes simply clarify what can already be done under the current legal framework, and that Member States continue to be obliged to comply with high standards of asylum law.

Martin Lemberg-Pedersen, from Amnesty, nonetheless evaluates that the proposal hollows out existing EU-responsibility and increases the risk of pushbacks.

The UN Convention relating to the Status of Refugees was adopted in 1948. The Refugee Convention defines who can be given the status of a refugee, and the rights refugees have. The Refugee Convention defines a refugee as a person who, due to a well-founded fear of being persecuted for reasons of race, religion, political views or similar reasons, is seeking protection outside their country of origin. Countries who have signed the Refugee Convention must assess applications for asylum individually, to decide whether or not the person that is seeking asylum is a refugee. The Refugee Convention prohibits countries from returning a refugee to a country where there is a danger that the refugee will be persecuted, or where their life or freedom is in danger. This is called the principle of “non-refoulment”.
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted in 1948. It prohibits all forms of torture. Torture is defined as any act that is intentionally inflicted on a person and causes severe pain or suffering. The Convention prohibits any of the signatories to the convention to return (“refouler”) a person to another state, where there is reason to believe that the person would be in danger of being tortured.
The UN Convention on the Law of the Sea was adopted in 1982. The Convention regulates nearly everything that is related to the ocean, be it fishing, or oil and gas industries, environment, or maritime traffic. Under the heading of maritime traffic, is the duty of seafarers to perform search and rescue if a person is in danger at sea, and to come to their aid as fast as possible.

Violation of UN Conventions?

Concurrently with the EU possibly paving the road for pushbacks to become even more widespread, experts in migration and asylum law warn that pushbacks constitute a serious violation of human rights.

First and foremost, there is the principle of “non-refoulement” in the UN Refugee Convention. This principle compels states to assess all asylum applications individually, to ensure they do not send asylum seekers back to a country where there is a risk the person will be subjected to persecution, torture, or other serious violations of their human rights.

The UN Special Rapporteur on Migration, Felipe Gonzáles Morales, asserts in a comprehensive report on pushbacks, that because pushbacks occur without consideration being given to the individual situation of the people who attempt to cross the border, pushbacks violate the prohibition of “refoulement”.

Martin Lemberg-Pedersen also states that pushbacks violate the prohibition of sending refugees back to persecution or other degrading treatment. Furthermore, he adds, it violates the prohibition against collective expulsion.

In addition, in certain circumstances, those pushed back are also exposed to violence, and even torture, in the countries they tried to leave, Lemberg-Pedersen explains. This violates the UN Torture Convention, which prohibits governments from returning people to a country, where there is a risk that they might be tortured or exposed to other inhuman or degrading treatment.

Danwatch has previously written extensively about how refugees and migrants are exposed to human rights violations, including torture and rape, in Libyan detention centers. Matteo de Bellis, the migration researcher from Amnesty, explains that this entails that the EU and Italy are violating international human rights law, specifically the principle on non-refoulment in the UN Conventions, when they are complicit in refugees and migrants being pushed back to Libya.

In addition to the above Conventions, there is also the UN Convention on the Law of the Sea. According to this Convention, ships have a duty to conduct search and rescue operations for persons in danger at sea.

This means, for instance, that if the English Coast Guard detects a boat with refugees and migrants within their so called “SAR-Zone”, who are in danger, they have a duty to come to their rescue. Ignoring a call for help in such a situation, would therefore be a violation of the UN Sea Convention.

Accused of human rights violations

It is not only in the press that EU countries are accused of being at odds with international human rights law.

A number of cases are currently pending before different international and regional courts, where a number of EU countries are accused of violating international human rights law.

In June 2019, the International Criminal Court (ICC) were asked to investigate the possible complicity of the EU in crimes against humanity, due to their treatment of migrants in the Mediterranean Sea.

In 2022, the ICC has furthermore been asked to investigate the involvement of Malta and Italy in pushbacks of asylum seekers and migrants to Libya. The claim before the ICC refers to comprehensive reports, which show that refugees and migrants who are returned to Libya have experienced torture, abuse, and sexual assault – and in some cases, been murdered.

In 2018 a case was brought before the European Court of Human Rights against Italy. In the case, Italy is accused of sharing responsibility with Libya for violations of human rights, by assisting the Libyan Coast Guard in stopping asylum seekers and migrants from crossing the waters to Italy.

There are also several cases pending before the European Court of Justice on the issue of pushbacks. In one of these cases, Frontex itself is accused of violating the human rights of asylum seekers who have been exposed to pushbacks in the Aegean Sea.

There has not been a final judgment in any of the cases above, yet. However, Matteo De Bellis expects there to be a decision in the case made before the European Court of Human Rights against Italy this year. And he stresses how important it is that European states are held responsible for their actions in courts of law.

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