It’s been a bad week, in a historic kind of way. The greatest refugee crisis since World War II, and Europe decides to scuttle the very agreements designed precisely to protect people in the event of… another refugee crisis like World War II: the 1951 and 1967 Refugee Convention and Protocol. The cynical EU-Turkey agreement on refugees is the culmination of Europe’s retreat from its own promise of human rights. As Amnesty International termed it, it was ” a dark day for humanity.” Human Rights Watch’s own European media director summed it up sarcastically in a tweet, “EU leaders agree to try to abuse human rights more systematically by bribing a rights-abusing neighbour.”
The final EU-Turkey refugee agreement mandates that refugees – those that manage to land in Greece – will receive asylum hearings on the Greek islands, that Syrians and Iraqis in general will be considered refugees and allowed to enter Europe, maybe, but Afghans have been declared economic migrants, those who don’t pass will be returned to Turkey, and (this part is as yet unclear) failed asylum-seekers around Europe will be deported back to Turkey, and for each one deported back, one Syrian refugee in Turkey will be resettled in Europe, up to a ceiling of 72,000 people. All of this is somewhat confusing even to educated observers, since the deal changed in the last days to allow some asylum hearings on the Greek islands rather than in Turkey. For refugees operating on limited information, it’s very unclear: Can you still go from Turkey to Greece by boat? Will you be sent back or intercepted by the Turkish Coast Guard before you get there? Some of the problems are more obvious than others. For example, given that there are 2.7 million Syrian refugees in Turkey now, the 72,000 resettled (about 3-4 times the number of refugees annually resettled in Europe as it is now, by the way) are going to be a drop in the bucket. (Even assuming a zero population growth, and no new refugees, at that rate it will take 19 years to resettle even half.) Other known problems are that Turkey is not a safe country and deports people back to Syria, Iraq, and Afghanistan in violation of international law, and the Turkish Coast Guard have been filmed dangerously interfering with refugee boats in the Aegean – so we know that innocent people are going to die. (More people are going to try to enter through the Libya-Italy route, which is also far more perilous, or possibly the Black Sea route in Bulgaria.) Then there’s this fiction of convenience that Afghanistan is now safe, which alone will doom thousands of refugees to forced deportation.
The asylum courts don’t yet exist on the islands, makeshift detention camps are being set up by Greece while volunteers and NGOs are being expelled, nor is there the legal infrastructure in place so that refugees get due process and the ability to present evidence (supposedly Great Britain has offered to help, but since they are now deporting Afghans, we know the Cameron administration’s goal is to send back as many people as possible). Greece had the lowest asylum acceptance rate in Europe during the height of the Afghan refugee influx (ca. 2002-2012), and lawyers’ caseloads were inhuman. In 2009 there were some 45,000 open asylum cases and 9 lawyers assigned to represent all these claimants. Nor is there adequate housing in Greece. UNHCR maps posted yesterday show there are some 47,000 known refugees in Greek encampments, and maximum capacity of 34,000. And, also as I have written before, several European countries have said they are going to deny valid asylum claims because they are imposing a cap on refugee admissions and they want to encourage other European countries to take in their fair share.
The irony that underlies all this is that the European countries wrote the very laws and covenants that created refugee protection as we know it in the first place, after the worst refugee and displacement crisis of the modern era. The first Convention relating to the Status of Refugees was written after the Second World War, largely by European countries and other early members of the United Nations, for the purpose of protecting European refugees displaced during the war. It is really important to remember the scale of the problem at that time: before and during the War there were some 60 million refugees in Europe, and one million of those – roughly the same number as there are refugees in Europe today – still unsettled as of 1951 when the Convention was written. The population of Europe was approximately 4/7 of what it is now, meaning the impact of a million people was far greater then. And, even more, the economy and infrastructure were just recovering from seven years of war, so even the settled population was not as prosperous as today. Significantly the first refugee Convention only pertained to European refugees. Protection was not expanded worldwide until the 1967 Protocol. So in typical fashion, even from the beginning the European governments were looking out only for Europeans, although they always claimed to universalize the notion of human rights.
After two World Wars, Europeans were familiar with refugees from their own continent and had inscribed humanitarian and legal protection into international law so that refugees would be protected in future conflicts. I don’t know if it was actually a lack of foresight – that one day there might be another refugee crisis in Europe that would actually be severe – but one can hope that the sentiment, the aspiration to become our higher selves, was at one time genuine. For some people, even today, no doubt it is. But it does seem kind of pointless that the protections were put in place for the next crisis, but when that crisis finally came, Europe’s current cadre of mediocre bureaucratic leaders would conveniently forget, ignore, and even violate laws that for many people had represented the pinnacle of human rights protection after hundreds of years.
There are other ironies. For one, you would think that governments, who swear to uphold the law, would hold to their legal agreement even when local people on the ground were not so welcoming. In fact the opposite has taken place. We often (not always) see local people on the ground, even in countries struggling economically like Greece and Italy, doing extraordinary things to help refugees even as their own governments display varying shades of indifference and repression. By all reports, and my own limited experiences on the islands of Kos and Samos, there have been people all over the Greek islands rescuing refugees at sea, providing food and water and other humanitarian assistance at great personal expense. Conversely, when local people deny help or even hinder refugees, then governments are called to respect and enforce their own laws, providing if not protection then at the very least due process in the legal system. Even international human rights organizations, and to its credit, the U.N. High Commission on Refugees, have been providing support to refugees even when governments not only fail to live up to their legal and moral obligations but actively obstruct and deny them. I’m no international lawyer, but what good are laws that are only enforced when the government feels like it or, more accurately in this case, that can be abandoned when they are inconvenient? They are international laws, after all, not international suggestions.
You wouldn’t know it from the bellyaching on the part of European leaders, especially those who espouse free market and other right-wing economic policies. Poland’s Donald Tusk, president of the European Council, and Luxembourg’s Jean-Claude Juncker, president of the European Commission, have both spoken as if this is the only alternative open to a Europe that is under tremendous economic and social strain from the refugee influx. In fact, the Prime Minister of the Netherlands, Mark Rutte, used exactly those words, saying “There is no alternative” to the agreement. And – clearly demonstrating that he knows nothing about how and why human migration actually occurs – he added, “We expect that that would stop the crossings within three, four weeks.” Again, that’s a choice between paying for the infrastructure that enables integration or, the more expensive option, paying for militarization and the infrastructure of enforcement. Yet another inexperienced and mediocre leader, 29-year-old Austrian Minister for Foreign Affairs and Integration Sebastian Kurz, member of a minority right-wing party within the ruling coalition, said Austria now wants to close the sea route to migrants going from Greece to Italy. I guess after getting Macedonia to close its border with Greece, which is nowhere near Austria, landlocked Austria now thinks of itself as a naval power that can block shipping routes in the Mediterranean, or that is has the right to close off sea traffic that has nothing to do with its own national interests. Global citizens indeed.
From a global perspective, the vast majority of refugees end up staying in poorer countries adjacent to those they are fleeing from. This fact alone perpetuates economic inequality. Not only is Europe far wealthier than Turkey, Jordan, and Lebanon – which together house 85% of the Syrian refugees (in fact Lebanon alone holds more Syrian refugees than all of Europe) – and Iran and Pakistan which hold over two million Afghans, but these supposedly educated leaders ignore the fact (under right-wing, nationalist pressure from within) that migrants add to the local economy, even with the temporary increase in social service spending. And they also – especially the Eastern Europeans – have incredibly short memories about the numbers of their own citizens who left as economic migrants (or political refugees) and came to America and other countries when they could not sustain themselves economically. Typical European hypocrisy: refugees and migrants are only worthy of assistance when they are European (unless they are Albanian, Muslim, Roma, or some other despised minority).
So as a starting point for rebuttal, here’s what international law says about the protection of refugees. It’s not a hidden document, just not one that is well-known or often read outside of legal and humanitarian circles:
Article 31 – Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32 – Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33 – Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
And one more article which I will refer back to later, in my next post:
Article 21 – Housing
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.
There are additional social and legal provisions in the Convention and Protocol but for simplicity’s sake here, let’s just refer to these – this alone will be sufficient to demonstrate that international law is being violated at almost every stop and border crossing along the way.
When the agreement was signed, Tusk tweeted – twice! – that the new agreement is fully compliant with international law. Maybe he thinks that by asserting it, that makes it so. (I tweeted back he should read Articles 31-33 again.) These U.N. articles are pretty clear that refugees who arrive and present themselves to the authorities should be free from penalty, allowed to pursue their cases in court, and if they need to should be allowed to make arrangements to move on to another country. And people are not to be rounded up, nor deported en masse to countries where their lives are in danger, like Syria and Afghanistan, or even to countries like Turkey that cannot guarantee their protection from deportation. (For a fuller and more detailed analysis by real law professors, see this excellent blog by Steve Peers, or this guest post by Thomas Spijkerboer.)
And, of course, there are alternatives, if Europe was serious about living up to its moral, legal, and humanitarian obligations. The Council of Europe’s own human rights commissioner, the American-born Latvian Nils Muiznieks, writing in The New York Times, and British writer Charlotte McDonald-Gibson, publishing in Time.com, have both provided excellent alternative scenarios that guarantee the rights of refugees and provide humanitarian relief to those fleeing the world’s most savage conflicts. Major human rights organizations like Human Rights Watch, Amnesty International, Doctors Without Borders (MSF), and Oxfam, continue to develop and promote alternatives and ways to take action. Even the ordinarily cautious U.N. High Commission for Refugees, which has no enforcement authority and which is circumscribed by its dependence on its (funding) member states, has been outspoken that this deal does not have the interests of the refugees themselves at heart – and that really is the top priority, is it not?
This agreement must be denounced because of its abdication of legal, moral, and human responsibility. But worse, its justification must also be denounced for what it is based on. It is built on a framework of untruths – that, among other things, this agreement is compliant with international law; Afghanistan is safe; refugees have alternative and safe places to stay outside of Europe; legal due process can and will be established for all claimants; Europe has no alternatives because of its own economic situation; there is adequate and safe housing for refugees; the military and police can provide adequate social services for refugees; smuggling rings can be shut down and when they are refugees will not look for other routes or means of entry; Turkey is both safe and adequately prepared to house, feed, and educate millions of refugees for the foreseeable future; and – we must say it – that none of these decisions are based in the least on bias, prejudice, or racism against non-Europeans. It would be too facile or speculative to say which of these are deliberate lies, which are delusions, which are ignorance of law, current events, or human behavior, which are bigotry, which are public relations spin, especially because all those who signed off on these agreements were motivated by their own reasons.
The reality of the wars in the Middle East and Africa, the tremendous toll – both personal and economic – on civilians, and the length of the time frame that this is going to be an ongoing crisis must be acknowledged. We may not like what we find, but only then will we be able to live up to the promise of international law, human rights, empathy for others, and the search for peace that we all claim we would like to see in our lifetimes.