Category Archives: international law

Doing a Better Job

This is an expanded version of a letter to the editor I sent to The New York Times back in July which they didn’t print, so it’s fair game for a blog post. It has to do with a linguistic turn of events which we in the Global North – that is, countries with net inflows of immigrants – have come to think of as normative. That has to do with the value judgment implicit in the notion of what constitutes a “better” job of immigration enforcement, indeed, and by extension, in the question of provision of human services to immigrants, and especially to refugees. Under international law, as I have pointed out in this blog in the past, refugees are a special class of immigrants, and they are not to be penalized by national laws for exercising their human right to seek asylum in other countries, even if that means crossing borders without inspection or even valid documents. The logic behind this, as developed in the first Geneva Convention on Refugees, is that in a chaotic situation of war and violence, or the sudden threat of death or persecution from the state, it’s not just to expect people to have the time to obtain legal passports from their own governments (which may be unwilling to let them leave), exit visas from those countries that require them of their nationals, or entry visas from other governments (who may want to restrict entry for a variety of reasons).

But what has happened in the misnamed “European refugee crisis” of 2014-to-now (misnamed both because the refugees are not Europeans, and because Europe is only seeing 15% of the refugees from Syria, while the vast majority of Syrians and Afghans are still in Turkey, Lebanon, Jordan, Iran, and Pakistan), is that enforcement, not protection, has become the standard by which governments measure success – and the press, who come from the same countries and the same class bias with fears of having to share their resources, have followed suit.

Here’s what I wrote to the Times:

In their article, “Austria’s Far Right Presents the E.U. With a New Test at the Polls” (July 1), Alison Smale and James Kanter observe thatCentral and Eastern European nations are demanding that the European Union do a better job of dealing with migration.” This is actually not the case. Under international law, namely the Geneva Convention and Protocol, “a better job” would be upholding the right of refugees to make claims of asylum in signatory countries. A more accurate statement would have been, “Central and Eastern European nations are demanding that the European Union do a better job of flouting the rule of law.”  The United Nations as well as every major human rights NGO have been quite clear that the EU, and particularly Central and Eastern European countries, have been illegally preventing migrants from exercising their legal rights, as well as providing the kind of humanitarian protection afforded to refugees throughout the world. What your reporters are calling “a better job” is actually code for greater enforcement and curtailment of migrants’ rights, which is what the governments of Austria, Hungary, Poland, Macedonia, and others are advocating. “A better job” would also require greater humanitarian conditions all along their route, as well as greater legal representation for asylum-seekers in Greece and other frontline EU states so that bona fide refugees can be recognized as quickly as possible. The EU, but even more, those very Central and Eastern European nations themselves, have been the ones responsible for not doing a better job according to the laws and treaties they themselves pledged to uphold when it pertained to European refugees. It would be great for New York Times reporters to actually report on the context of existing international law, rather than accept as “better” the flagrant violations of law these governments espouse.

Since I wrote that, I’ve become more aware of the rhetoric of complicity. A more egregious example comes from Greece, especially in light of the recent confirmation that the Greek Coast Guard has fired on refugee boats coming from Turkey. The German government was reported to have complained that Greece needs to do a better job of enforcement, in order to stem the flow of refugees eventually ending up in Greece. (Setting aside the gauntlet that refugees already have to run just trying to get from Greece through the former Yugoslavian countries and/or Hungary, and Austria, each of which have choked off border crossings or tried to influence other countries further down the chain to do the same.)

But what is so easy to overlook, given the clarity of international law and its proscriptions against blocking refugees from exercising their rights, is that what Germany is asking Greece to do is to violate international law more thoroughly and effectively. Germany is not saying “you need to provide a greater level of humanitarian service,” but instead is saying, “you need to violate established international law against innocent civilians more effectively so we won’t have to recognize (or subsidize) their rights when they get here.” In the most simple terms, “doing a better job” now means, in this upside-down world (to use Eduardo Galeano’s phrase) committing greater and more effective state-sponsored illegal activity.

That is to say, this is completely contrary not only to humanitarian standards of justice and ethical behavior, but to law that has been affirmed and recognized by every European country for the past sixty years. I cannot recall a time when the press and popular discourse accepted and encouraged the idea that government should do a better job at committing illegal activities.

In the U.S., the explicitness of this position has reached absurd levels under the proposals of candidate Trump, acknowledging that he is not just talking about refugees. Still, his idea that the U.S. needs to “create a deportation force” ignores the existence of Immigration and Customs Enforcement (ICE), which was created under the Homeland Security Act as a separate entity from the former Immigration and Naturalization Service (INS), which was divided into three agencies in 2003. I’m still waiting to hear anyone from the press pointing this out to him and asking him what about “the deportation force” we already have. (This has even been echoed by Governor Christie of New Jersey who certainly knows better given his known awareness of the increase in immigration detainees in county jails in New Jersey.) Trump’s claims that we need to deport people who are in the U.S. illegally, especially criminals, overlooks the fact that this has already been going on for years, and even at an accelerated rate under President Obama, under whom deportations have increased 25% over the George W. Bush administration. Trump of course cannot admit that, from his perspective, the Obama Administration has been “doing a better job” at what he wants than the Bush Administration.

The idea that any deportation can be done “humanely” is absurd on its face as well. Since by definition deportation is the forced removal of someone from a country, that has to be done against the wishes of the defendant, as well as, in most cases, that person’s family. It usually involves at the very least a court order, police (or ICE) capture or arrest, physical removal to a jail or detention center, and putting someone on a plane (which, actually, several German pilots have been refusing to honor). It also has to involve in the U.S. “due process of law” under the 14th Amendment, though only 37% of those coming before immigration judges have benefit of counsel (to which they are entitled, but not guaranteed, under the law – a subtle distinction most Americans are unaware of), and far fewer among those already detained and facing deportation. I am not arguing here that all deportation is wrong – that’s a separate discussion – only that the idea of more deportations is only “better” depending on where you stand, and that the question of “humaneness” in deportation (which also usually involves splitting families or forcing them in the name of staying unified to leave the country of whom some are legal nationals) is a nonsensical argument in a world in which bona fide refugees are denied due process and legal counsel, held in jails and detention centers (including mothers and their infant children), housed in concentration camps, shot at, and prevented from exercising their human right to seek asylum.

The “better job” we need to do is the very antithesis of what the governments of the world – whether persecutors or would-be protectors – are trying to do. It is up to an independent press to point that out, especially those whose beat it is to cover law and human rights, rather than adopt the value-drenched rhetoric of the wealthiest and most privileged nations who show their willingness to enforce walls rather than, ironically, their own laws, treaties, and constitutions. It’s the press that needs to do a better job, not accepting governmental self-interest, while governments need to do a better job of protecting the most vulnerable as they are instructed to do under the United Nations and the Conventions on the protection of refugees.

Two very interesting endnotes to this.  First, the Australian government has just announced it is closing the refugee detention center on Manus Island, Papua New Guinea.  Meanwhile, the Italian Coast Guard has just been involved in rescuing some 6,500 migrants crossing the Mediterranean. Following through on these promises of hope is essential.

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Filed under Greece, Human rights, international law, Militarism, Policy, Syrians, Turkey, U.S.