We are at war

The state of the European Union’s asylum and migration policy can be summed up as follows: 20 years after the attacks on the Twin Towers, the war against terror has turned into a war against people on the move. Legitimised by the political leadership of the European Union, it is now a reality that the principles of the rule of law have ceased to apply at the EU’s external borders without consequence. This is done in large parts with reference to the ‘protection of European borders.’ The European Union has declared war on crying babies and children in distress at sea, whose parents sacrificed their own well-being in a desperate attempt to conquer the European Union with their plastic boats. Cladded in inadequate rescue gear and armed to the teeth with cardboard signs reading “Asylum”, they are sending heads of state and government into such a panic that a state of emergency has become the norm in Europe.

What the situation at Europe’s external borders and the attacks of 9/11 have in common is that we are attributing to the individuals a false but nevertheless overlapping imputation based on outward appearances and the alleged driver of the attacks – Islam. If they had a different skin color and were dressed differently, I am convinced they would be saved. 9/11 has linked precisely this attribution with fear in our collective memory. It has taken on a life of its own and leads us into a situation where it becomes the driver of political action. What follows is, in my opinion, fatal: the European Union and its member states systematically violate their own legal foundations, including the European Charter on Human Rights. Not to mention the regulations that provide a binding legal basis for the situation at the EU’s external borders. The “war on terror” has in thus become both a cause of people on the move, and serves at the same time as the normative underpinning for the unimaginable arms race that has taken place at the external borders of the EU.

Pushbacks as standard practice

In principle, one of the most common breaches of the law at the EU’s external borders are pushbacks. In a pushback, people are returned directly after crossing the border without being granted the right to make a request for protection. Direct returns of this kind violate the principle of “non-refoulement” based in the 1951 Geneva Refugee Convention, which is part of the legally binding framework of the European Union through its inclusion and elaboration in the European Charter on Human Rights.((A very good summary of the legal situation can be found via the European Center for Constitutional and Human Rights))

The external border in the Aegean Sea

On the maritime border between Turkey and Greece, people in rubber dinghies try to reach the Aegean islands from Turkey and are prevented from continuing their journey on the water. The Greek coast guard intercepts the rubber dinghies, damages them and lets the immobilized boats drift back towards Turkey. Increasingly, the people seeking protection are placed on life rafts, which are then left on the water at night, disoriented and helpless. In October 2021, a team of investigative journalists was able to prove once again that a special unit of the Greek coast guard is preventing people from applying for asylum in the European Union by threatening them with violence. In the meantime, this procedure has become such a routine that the Turkish coast guard collects all sea rescue incidents of this kind generated by the pushbacks on a specially created website with the relevant title “Pushback Incidents.” Hundreds of cases documented with videos, pictures and eyewitness accounts suggest that these are not isolated incidents, but a systematic and planned procedure. In September 2021 alone, the human rights organization Mare Liberum counted 91 cases of pushbacks involving approximately 2,289 people. The NGO Aegean Boat Report also regularly publishes statistics on incidents at the maritime border with Turkey. Since the beginning of its data series in January 2017, it comes to a total of 5,996 boats that have been stopped and 209,535 people who have been denied their right to access an asylum procedure as a result. But it is not just unknown human rights NGOs that see the pushbacks in the Aegean as a reality and part of a systematic approach. In two reports from July 2020 and January 2021, in which the geography of the incidents is meticulously recorded on the basis of precise GPS data analysis, the Legal Centre Lesvos has clearly demonstrated how the system works. Amnesty International, Human Rights Watch, the Centre for European Policy Studies and the United Nations Special Rapporteur for Refugees also conclude that it is systematic approach by public authorities of the European Union and its member states.

The external border in the Balkans

Pushbacks also occur in the Balkan region around Bosnia, Croatia and Hungary with increasing frequency. People on the run try to cross the so-called “green border” and are picked up after a few kilometers inside the European Union, brutally beaten up and brought back to Bosnia under threat of violence. The numbers of concerned pushbacks over the last years are staggering. The Border Violence Monitoring Network has documented hundreds of cases in its “Black Book of Pushbacks,” with an estimated 12,000 victims, and has even had to publish two volumes due to the sheer volume of occurrences. Up to and including September, the NGO Danish Refugee Council has registered 7,203 persons affected by pushbacks in Bosnia and Herzegovina in 2021 alone. The NGO’s data series meticulously shows the longevity and commonplace these human rights violations are. And here, too, the evidence now extends so far that renowned organizations such as Amnesty International and Human Rights Watch are taking a stand. They attest to the frequency and credibility that this is common practice and is at least tolerated by state authorities. Then, in October 2021, a research team of investigative journalists published solid evidence that it is special units of the Croatian police themselves who carry out pushbacks. Again, it is clear that pushbacks are not a coincidence or an exception, they are part of a system.

The external border in the central Mediterranean

In order to prevent people from successfully making the perilous escape route across the central Mediterranean to Italy, Malta and Spain, the European Union finances the Libyan coast guard – the escape route usually begins in Libya – which in turn carries out so-called “pullbacks”. So there are no European Union border guards operating in the central Mediterranean, but the EU agency Frontex provides the necessary reconnaissance and coordination work to enable others to do so. Frontex flies over the central Mediterranean with drones and aircraft, but boats in distress that are located are not rescued. On the contrary, they are returned to Libya at the risk of their lives. The sea rescue organisation Sea-Watch has been observing how this works for years with its own reconnaissance aircraft. The Commissioner for Human Rights of the Council of Europe also states that many member states of the European Union are not fulfilling their legal obligations. The basic principle is that people rescued from distress at sea must be taken to a safe place (see also the IMO Guidelines on the treatment of persons rescued at sea). Libya is definitely not a safe place, concludes the UN Special Rapporteur on the Human Rights of Migrants, Felipe González, in his report on the situation on the ground. By funding the Libyan coast guard, member states can posture that they are not to blame for a possible exposure to danger. However, Frontex’s reconnaissance planes and drones do not pass on the coordinates of boats in distress to surrounding ships, but only to the Libyan coast guard, as research by journalists has shown. In this way, the Hirsi ruling from 2012 is being circumvented:((Here it was ruled that military vessels (most of which are excluded from civilian agreements) had unlawfully returned people to Libya.)) European ships are not allowed to bring people back to Libya. However, the European Union is clearly to blame by omission, seeing as Frontex has de facto control (i.e. is the decisive authority on the outcome of the situation) over which information about possible ships-in-distress to share or not. Due to the deliberately created diffusion of responsibility by an actor allegedly not controllable by the European Union (i.e. the Libyan Coast Guard), it is not possible to blame the member states or Frontex. Despite the now overwhelming evidence and even reports of shots being fired at boats in distress, the European Union’s provision of equipment to the Libyan coast guard continues and will continue in the coming years with bilateral agreements.

Prisons, security technology, walls and live ammunition at the external borders

A second key development is the establishment of closed camps on the Aegean islands of Lesbos, Samos and Chios. There, so-called “Multi-Purpose Reception and Identification Centers” are being set up with EU funds and are intended as pilot projects. They are to gradually replace the previous first reception facilities and set the new standard for dealing with arrivals at the external borders. The reality is a collection of plastic containers surrounded by meter-high walls and barbed wire, access to which is only possible with chip cards and fingerprints, and whose interiors are constantly monitored by cameras. In short: a modern internment camp to welcome traumatized people on the run. There is much criticism of the new facilities. Doctors without Borders, but also a study by the Heinrich Böll Foundation and the European Council of Refugees and Exiles, describe the situation in detail and list numerous violations of rights in their study, should the new camps actually be operated as planned. The first camp on the island of Samos was opened in September 2021.

At the land border with Turkey on the Evros, Greece is building a state-of-the-art border fence to make it physically impossible for people to reach the European Union. The somewhat absurd idea of erecting a border fence on the water has also been turned into reality by the Greek government, even though ineffectiveness ultimately put an end to the attempt. But passively stopping people with a border fence does not seem to be enough here either. In an article for Deutsche Welle, it becomes clear that the Greek police will be able to monitor the smallest movements in the border region day and night in the future. In mid-2021, it also became known that the Greek government is testing the use of so-called “Long Range Acoustic Devices” (LRADs). In what looks like a promotional video, a Greek police officer blatantly explains the purpose of the weapon: to use force to prevent people from reaching Europe. The only thing missing is the use of live ammunition to shoot at defenseless people seeking protection at Europe’s borders. But alas, this also would not be a premier in the tragic saga of the European Union’s asylum and migration policy. At the beginning of March 2020, Greek border guards shot and killed at least one person who was trying to cross a border crossing on the Evros. Amnesty International subsequently analyzed the situation, and the incredibly detailed evidence provided by Forensic Architecture proves beyond doubt exactly what happened there.

Hybrid threat – how the breach of law is legitimized

One would think that the moment people start dying through gunshots at the EU’s external borders, there would be political resistance to such conditions. In fact, exactly the opposite is the case. Politicians linguistically legitimize the crimes of their own border guards and thus create a scope for disenfranchising people. Linguistically, the legitimization takes place at the highest political level. In March 2020, EU Commission President Ursula von der Leyen visited the Evros border region and thanked the Greek police, who in the days before had used water and tear gas to prevent people seeking protection from being able to apply for asylum in the EU. She described Greece’s behavior as a “European shield.” A day later, a protection seeker was shot dead there. And in September 2021, when people in the border region between Belarus and Poland were prevented by force from finding protection in the European Union, she spoke of a hybrid threat in her State of the Union Address. A hybrid threat that arises when a dictator instrumentalizes people seeking protection in order to destabilize the European Union.

The phrase “hybrid threat” is not new in this context. It is used by the Greek government and the Executive Director of Frontex, Fabrice Leggeri, to make the illegal pushbacks at the external border appear covered by the law (Dana Schmalz also refers to this rhetorical de-legitimization of asylum seekers in her contribution to the Constitution Blog). It is at first denied that there are boats in distress at sea, but it is also emphasized that these are people who are used by other states to become hybrid threats that are specifically intended to destabilize our European Union. By classifying people as hybrid threats, the right to self-defense is misappropriated in order to be able to override the rules of law of the European Union’s External Maritime Borders Regulation, the Frontex Regulation and the European Charter of Human Rights.

Even whether the overcrowded rubber dinghies in the Aegean are in distress at sea is thus suddenly debatable for the Greek government and Frontex. The correspondence between Frontex and the coast guards involved refers several times to the “hybrid threats”. Confronted with this, those politically responsible usually react in a similar way: they point to an alleged gap in the legal framework. They would first have to define whether a vessel is in distress at sea. But as long as no one carries out this categorization, they are allowed to carry out border protection measures. In other words, as long as the Greek coast guard never designates a boat in distress as such, it is possible to carry out pushbacks. Under which legal conditions then immobilized boats and life rafts may be used remains a mystery. The classification of distress at sea is very clearly regulated and defined by the Frontex Consultative Forum on Fundamental Rights. All these boats are in distress.

Conclusion

20 years after 9/11, we find ourselves in a situation in which European asylum and migration policy not only continuously uses security policy rhetoric, but the instruments, practices and infrastructure at the external borders are more and more reminiscent of a state of war. Clear constitutional principles and regulations are not only accidentally but deliberately overruled, with the reference to the protection of the country, the sovereignty and internal security of the European Union.((Perhaps a sad climax to the absurdity of thinking about security, flight and migration together is the behavior of the Federal Ministry of the Interior with regard to the evacuation of local Afghan forces to Germany. People who have worked for Germany for years are left behind in Afghanistan where they are threatened with death because we have not managed to complete their security clearance.)) How can asylum seekers be a hybrid threat to the European Union? By going along with this instrumentalization, people are reduced to a security issue. We could also consider and treat them as protection seekers, but that is not the intended goal. At first glance, it seems arbitrary whom we refer to. At second glance, it becomes clear how this ultimately works: Via the racist image of averting danger against alleged immigrant terrorists and people who are “foreign to our culture”. The political answer to the fear of terrorism that is anchored in our collective memory is an irrational policy that aims to prevent any migration movement to Europe. In the end, the winners are those who want to bring fear and insecurity into our societies with their terror.

In 2021, the European Union’s response to those who ask for protection at its borders is to strengthen border protection measures. For those who manage to escape violence at the hands of border officials, not to drown and not to be immediately returned illegally, we build state-of-the-art showcase prisons where no independent control of asylum procedures, press freedom or living conditions is possible. ‘Welcome to Europe’ translated into current policy means: Too bad we couldn’t stop you from crossing the border, you’ll have to go to jail for now.

This text is a translation of the article, Wir befinden uns im Krieg., by Michael Borgers.