Over the last decade, EU treatment of Syrian refugees has been ambivalent. On the one hand, some states have shown generosity by accepting and supporting large numbers of Syrians fleeing conflict. For example, Germany has accepted 1.5 million Syrians, providing support to many. On the other hand, as domestic political pressures have mounted, there has been a rising trend to turn back refugees and migrants using increasingly forceful tactics. Italy and Greece have been under pressure for turning back refugees without any individualized process and the fortification of Frontex, the EU border force, as a means of surveilling and preventing illegal entry, is under new scrutiny.
Numerous recent developments have questioned the legality of these actions and put pressure on EU states to reconsider their increasingly harsh treatment of asylum seekers and migrants, creating hope for a more durable solution that respects international human rights.
SJAC’s Communiqué to the ICC OTP
On January 26, 2020, SJAC submitted a communiqué to the Prosecutor of the International Criminal Court alleging crimes against humanity committed by Greece and Frontex against refugees and migrants in the Aegean Sea and in Greek reception and identification centers. The communiqué alleges that Greece has instituted a series of practices aimed at stripping refugees of their rights. It describes squalid living conditions in refugee camps and pushbacks of refugees in violation of the right to non-refoulement in what amounts to crimes against humanity. If the ICC Prosecutor chooses to open an investigation, it would be a significant step in pushing European states to prevent or punish crimes against refugees. The communiqué was submitted during a week when a number of other accountability efforts also made progress.
European OLAF Inquiry into Frontex
Buttressing claims that Frontex has been involved in illegal pushbacks, it was announced in January that the European Anti-Fraud Office (OLAF) had opened an investigation into Frontex as it works to build a standing force of 10,000 border agents from contributing EU states. OLAF is reportedly investigating Frontex’s involvement in illegal pushbacks in addition to possible fraud and harassment within the agency.
Substantial evidence has come to light of Frontex involvement in harsh treatment. Therefore, the promise of some level of oversight and accountability is encouraging. But the excessive enforcement actions by Frontex are likely representative of the directives it has received from member states and a more comprehensive reassessment of policy must take into account the decision-making process in Brussels as well as the management of Frontex from its offices in Warsaw.
UN Human Rights Committee
A number of claims arise from mistreatment attributed to Italian officials as well. In a decision announced on January 27, the UN Human Rights Committee found that Italy had violated the right to life from an incident involving the deaths of over 200 people, including 60 children at sea. The incident occurred in October 2013 when relatives of the complainants departed Libya on a boat which quickly began to take on water and made distress calls to Italian authorities. The boat was not located in Italy’s territorial waters and Italy contested whether it had responsibility to rescue the occupants. Though it also noted that criminal proceedings remain pending in Rome in which Italian Navy and Coast Guard officials are under investigation.
The Human Rights Committee (HRC) was not convinced by Italy’s submissions. It found that Italy had diverted a naval ship away from the distressed boat. It also found that Italy had failed to provide sufficient explanation as to why the criminal proceedings against those responsible had been so delayed. The Committee found that Italy had violated its obligations to proceed with an effective investigation, to prosecute those responsible for the deaths and that it had an obligation to prevent similar violations in the future. It therefore requested that Italy provide information within 180 days as to what measures it has taken to fulfill its treaty obligations.
Although the Committee’s decision is encouraging due to its attribution of responsibility for human rights violations, it does not have enforcement powers and the Human Rights Committee’s decision is not binding.
German Court Decision
Finally, in a decision acknowledging the poor conditions in Greek reception and identification centers, on January 26, 2021, a German administrative court [German only] stopped the deportation of two individuals, one Syrian and another Eritrean. A German administrative office had rejected the applicants’ asylum applications because the two had already received protective status in Greece. International refugee law permits states to refuse entry to individuals who have already received protections in a first country of asylum. This rule is meant to prevent forum-shopping by refugees if they have already found a country of refuge. However, the North Rhine-Westphalian Higher Administrative Court found Greece was not a safe country for the applicants because of the terrible living conditions in Greek refugee camps, including the absence of the most elementary of needs such as bed, soap and bread. Because deportation to Greece would expose the applicants to the serious danger of inhuman and degrading treatment, it stopped efforts to remove them. The decision can be appealed to the Federal Administrative Court in Leipzig. However, it does provide at least temporary relief to the applicants and provides support to other applicants whom German authorities might seek to deport to Greece on similar grounds. The judgment is also in line with a previous judgment of the European Court of Justice, in which the Grand Chamber found that people cannot be deported to the country where they first received protection, if it would violate their fundamental rights against degrading and inhumane treatment.
A number of crises have contributed to the wave of asylees and migrants seeking refuge in Europe. While the EU aims to accept a large number of new arrivals, this does not inoculate it from criticism. The severe mistreatment by certain European states and Frontex must be acknowledged and investigated. Those responsible for criminal wrongdoing should be prosecuted and further wrongdoing must be prevented. However, a long-term solution to these issues can only be found when the origins of migration are addressed. This will require a durable, peaceful conclusion to the Syrian conflict defined by respect for human rights, justice and accountability for the crimes committed over the last ten years. While sanctions are a powerful weapon against human rights abusers, they must be coupled with EU support for humanitarian assistance to alleviate the suffering of innocents.