Yasha Maccanico*
The EU and member states (MSs hereafter) are consolidating the practice of pushbacks to prevent unauthorised entrants from crossing their borders and/or submitting asylum applications. From Spanish north African enclaves in Ceuta and Melilla to the EU’s Mediterranean and Atlantic Sea borders, as well as at eastern land borders from Greece, Hungary and Croatia all the way to Poland and Lithuania, informal practices have become commonplace. De facto, human rights are being subordinated to strategic migration policy goals, by design.
Some preliminary observations may help to explain why pushbacks are a problem.
First, “pushback” is a euphemism to collectively refer to several practices amounting to a wave of violence, coercion and rights abuses that people on the move without authorisation by states are subjected to.
Second, pushbacks show how migration policy is used by states as a pretext and instrument to disregard limits to their powers defined in national, EU and international law.
Third, pushbacks are the apogee of discretion in the exercise of sovereign powers, accompanied by disregard for their harmful effects on people, institutions and societies.
Legal Perspective
From a legal perspective, the key question remains whether EU and national justice and home affairs policies (into which migration and asylum were unduly incorporated in 1999)[i] trump jus cogens norms of international law that do not admit exceptions, like the ban on torture and the non-refoulement principle. Despite legal theory and plentiful court judgements providing the answer that they do not and that human rights instruments must be complied with and promoted worldwide under the EU’s own principles and values, MSs seem emboldened by EU membership and strategic approaches developed at the supranational and intergovernmental levels to disregard the rule of law.
The persistence and spread of this practice show a failure to comply with national, regional and supranational court judgements, alongside contempt for communications by the UN experts and Special Rapporteurs to EU and MS authorities demanding their compliance with international law by ending unlawful practices at borders. Reports on pushbacks by the Special Rapporteur on the human rights of migrants, González Morales,[ii] consistently recommend adjustments that are contradicted by initiatives to “operationalise the Pact”[iii] that consolidate and develop practices the EU is asked to curtail, scale back or abandon. Some examples include guaranteeing access to MS territory to make the right to request asylum concrete, not leaving people to die at sea or be returned to mistreatment in Libyan camps by the Libyan coast guard, both of which are funded, equipped, and trained by EU and MSs, and respecting EU Directives on asylum seekers’ reception and evaluation of their claims. Instead, compliance with the Geneva Convention on Refugees is undermined by efforts to impose and extend application of the “safe third country” principle to swiftly declare applications inadmissible, particularly from countries with which readmission agreements are struck to facilitate deportations (“returns” in official documents).
Leaving people to die at sea, obstructing sea rescues, pushing back people who have disembarked into harm’s way or letting people die of hypothermia to protect borders form part of this picture.
Another part is the creation of legal fiction through a web of bilateral and multilateral agreements and soft law instruments like memoranda of understanding (MoUs), working arrangements, joint statements and even press releases like the 2016 EU/Turkey deal (to turn asylum seekers into illegal entrants awaiting transfer to Turkey).[iv] The International Maritime Organization (IMO) was used to ratify a Libyan SAR (search-and-rescue) zone in July 2018 despite obvious formal and concrete shortcomings like Libya not having a maritime rescue coordination centre, a government in control of its entire territory or a “place of safety” where people may disembark.[v]
However, in EU legislation, article 6(3) of the Returns Directive (2008/115/EC) allows informal handovers between MS authorities if there applicable bilateral agreements.[vi] This provision has been used by MSs to informally hand over people to other MS authorities, sometimes leading to serial refoulements involving violence, denial of the right to seek asylum and ejection from EU territory, as an Italian court ruled in January 2021.[vii] The case saw a Pakistani asylum seeker refouled to Slovenia, then to Croatia (where he was beaten) and on to Bosnia-Herzegovina. This model appears to signal an intention to normalise this system to “informally” return people to third countries regardless of what fate awaits them.
A plethora of irregularities accompany pushbacks, whose typology varies up to a point where it encompasses “pullbacks” (pushbacks by proxy) by the EU- and Italian-supported Libyan Coast Guard (Malta has joined the fray, as has Turkey for different motives) to detention centres that are UN-certified sites of “unimaginable horrors”[viii] inflicted upon migrants. Deaths at sea and violence at borders have become commonplace after Frontex and the Commission decided in 2015 [Agenda on Migration] that human rights clauses in its mandate were subordinate to “effectiveness” in achieving strategic migration policy goals (less irregular entries, less asylum seekers, more deportations and detention). Making sea crossings more dangerous (for people on the move) was part of their strategy to “undermine the traffickers’ business model”.
Spain has enacted “devoluciones en caliente” (hot returns, that is, irregular handovers through the border fence) to Morocco for decades and, more recently, crises at the Lithuanian and Polish borders resulted in denials of entry leading to deaths in woodlands on the Polish-Belarussian border. Likewise, a greater focus on and the withdrawal of EU rescue assets from the central and eastern Mediterranean from 2016 led to sea routes reopening from Tunisia, Algeria and Morocco (also on the Atlantic route to the Canary Islands), along which death counts have soared.
The Greek case is extreme, for several reasons. The number of pushbacks enacted in the Aegean have been estimated at several tens of thousands, practices like pushing people back at sea after they entered Greek territory[ix] without recording them and the misuse of rescue equipment to obstruct people on the move have been documented. The Frontex agency was caught up in this scandal because it covered up irregularities and serious incidents, which it has also participated in, funded and sought to justify as necessary in pursuit of migration policy goals. The OLAF report into irregularities at the agency sheds light on how the agency’s higher echelons undermined and side-lined fundamental rights officers, treating them as a nuisance in their midst.[x] This explains their understanding of migration policy as anathema to people on the move being holders of rights which, as human rights or minimum standards that states must comply with, apply to everyone.
A narrative used by Greek authorities against activists, NGOs and journalists documenting illegal acts by state agents at borders vilified them as foreign pawns or even Turkish agents, alongside judicial attempts to treat critics as criminals or accomplices of traffickers. The victims of Greek pushbacks, which have sometimes led to deaths, include a Frontex translator, an EU citizen criminalised in Turkey[xi] and Turkish citizens fleeing a brutal repression affecting their security and livelihoods. This context makes the EU-Turkey deal even more untenable, considering that Turkey is not safe for many of its own citizens and that billions of euros are paid to a country undergoing an authoritarian drift whose external military campaigns produce refugees that it is tasked with and paid for sheltering. Journalistic investigations by Le Monde, Der Spiegel and Lighthouse Reports, among others, have uncovered odious practices like the Greek border police using refugees to enact pushbacks in exchange for documentation and cash benefits.[xii] This followed investigations showing that shady unofficial actors were participating in acts of border violence against people on the move in Croatia.[xiii]
Another development is now being used by national and EU authorities to justify migration policy crimes: after being dehumanised by a drive to detain and expel, refugees are now treated as “hybrid weapons”. The EU’s obsession with migrants and refugees (whose pretexts have been dismantled and revealed as crude racism by the hospitality offered to Ukrainian refugees, which must be welcomed) has led to third country authorities and militias who profit economically from becoming EU and MS partners (like in Libya) deliberately causing crises at EU borders. This is not a new phenomenon (Ghaddafi and Morocco periodically resorted to similar tactics to obtain funds in the past), but it was used in succession by Turkey, Morocco, Libyan actors, and Belarus.
In October 2021, “hybrid attacks” were the justification for 12 MSs in the Council to propose toughening the EU border regime and normalising pushbacks, as “adaptation of the EU legal framework to new realities”, in the framework of discussions to operationalise the 2020 Pact on Migration and Asylum. Council of Europe Human Rights Commissioner Dunja Mijatović responded by calling on MSs to oppose attempts to “legalise this illegal practice”.[xiv] Yet, EU institutions appear unwilling or unable to stop policies against irregularised migration from sliding towards a system of large-scale state crimes with a racial component that are gradually legalised.
* 
Yasha Maccanico (@yashamac1) is a Statewatch researcher since 1998, providing news coverage, analysis and translations to link EU policies to events on the ground in the justice and home affairs field in several member states (UK, Italy, Spain, France, Belgium and Portugal).
[i] By the Amsterdam Treaty and the Tampere European Council conclusions.
[ii] For example, see “Report on means to address the human rights impact of pushbacks of migrants on land and at sea: report of the Special Rapporteur on the Human Rights of Migrants”, Felipe González Morales, 12.5.2021, https://digitallibrary.un.org/record/3928693?ln=en
[iii] See Statewatch monitoring of developments in its “Tracking the Pact” series at, www.statewatch.org
[iv] Les notes de Migreurop, no. 14 “L’informalisation des politiques migratoires: les pièges de la soft law”, June 2022, https://migreurop.org/IMG/pdf/note_14_fr.pdf
[v] Il mare dei diritti umani. Relazione Prof. T. Scovazzi. “Gli aspetti peggiori della politica italiana in tema di migrazione irregolare via mare”, Giustizia Insieme, 1.3.2020, https://www.giustiziainsieme.it/it/il-magistrato-3/888-gli-aspetti-peggiori-della-politica-italiana-in-tema-di-migrazione-irregolare-via-mare In section IV of this talk, Prof. Scovazzi raises several enlightening observations on the establishment of the Libyan SAR zone and its non-compliance with applicable rules and the law of the sea. Human Rights Watch and Border Forensics have documented cooperation between Frontex drones and the Libyan coast guard, “EU’s Drone Is Another Threat to Migrants and Refugees. Frontex Aerial Surveillance Facilitates Return to Abuse in Libya”, J. Sutherland, L. Pezzani, 1.8.2022, https://www.hrw.org/news/2022/08/01/eus-drone-another-threat-migrants-and-refugees
[vi] The cited clause states that: “Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1 [meaning that they will issue a return decision]. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008L0115&from=EN
[vii] When informal means illegal: Italian interior ministry guilty of pushbacks to Slovenia, Statewatch, 26 January 2021, https://www.statewatch.org/news/2021/january/when-informal-means-illegal-italian-interior-ministry-guilty-of-pushbacks-to-slovenia/
[viii] Office of the High Commissioner for Human Rights, 20.12.2018, “Migrants and refugees crossing Libya subjected to “unimaginable horrors” – UN”, https://www.ohchr.org/en/press-releases/2018/12/migrants-and-refugees-crossing-libya-subjected-unimaginable-horrors-un
[ix] 2021: Suing Frontex for its failure to act on human rights abuses, Front-Lex, https://frontlex.wordpress.com/the-cases/2021-suing-frontex-for-its-failure-to-act-on-human-rights-abuses/ , provides details of a case involving violence and people being pushed back into the sea.
[x] Der Spiegel, 29.7.2022, Frontex Scandal: Classified Report Reveals Full Extent of Cover-up, https://www.spiegel.de/international/europe/frontex-scandal-classified-report-reveals-full-extent-of-cover-up-a-cd749d04-689d-4407-8939-9e1bf55175fd
[xi] February 2022: 6 years in a Turkish prison because of the EU, Front-lex legal, 18.2.2022, https://frontlex.wordpress.com/the-cases/february-2022-6-years-in-a-turkish-prison-because-of-the-eu/
[xii] Der Spiegel, 30.6.2022, Systematic Abuses at the EU External Border: Greek Police Coerce Refugees to Commit Illegal Pushbacks, https://www.spiegel.de/international/europe/systematic-abuses-at-eu-external-border-greek-police-coerce-refugees-to-commit-illegal-pushbacks-a-32988662-06c8-420d-a2c9-fde426bef1b1 ; Human Rights Watch, April 2022, “Their Faces were Covered”. Greece’s Use of Migrants as Police Auxiliaries in Pushbacks, https://www.hrw.org/sites/default/files/media_2022/04/greece0422_web_0.pdf
[xiii] Der Spiegel, 7.10.2021, Europe’s Violent Shadow Army Unmasked, https://www.spiegel.de/international/europe/greece-and-croatia-the-shadow-army-that-beats-up-refugees-at-the-eu-border-a-a4409e54-2986-4f9d-934f-02efcebd89a7
[xiv] Both communications are available here, Statewatch, 21 October 2021, “Pushbacks: legalising the illegal cannot be permitted, says Council of Europe human rights chief”, https://www.statewatch.org/news/2021/october/pushbacks-legalising-the-illegal-cannot-be-permitted-says-council-of-europe-human-rights-chief/
Categories: Turkey Human Rights Blog