On 1 March 2020 the Greek Government unilaterally invoked Article 78.3 of the Treaty on the Functioning of the European Union (TFEU), announcing that it would not accept new asylum applications for one month and that those who attempt to enter illegally would be turned back. These measures were in response to the Turkish Government’s announcement two days prior, that it would no longer prevent people from leaving Turkey for Europe, contrary to the EU Turkey Statement of March 2016. On 7 March 2020, the Turkish president announced that Turkey would again begin to prevent crossings of the Aegean Sea to the Greek islands, though has so far declined to make a similar announcement with regards to land crossings.
Since the Turkish government’s first announcement on 29 February 2020, thousands of people have been attempting to cross the Greek border. The Greek government has responded by sending police, Frontex, and army reinforcements to the border with Turkey, using tear gas and live ammunition against people attempting to cross. The use of force at the border has thus far resulted in the death of a Syrian man, shot in the head whilst attempting to cross.[i] Those who have entered Greece at its land border have been arrested and charged with illegal entry. In the Aegean islands, there have been reports of pushbacks by the Hellenic Coast Guard; the army beginning military activities along the coast of Lesvos using live ammunition; and hundreds of people who have arrived since 1 March, including many children and pregnant women, being imprisoned in the ports, where they are left to sleep on the concrete or in police buses, with limited access to humanitarian actors. Alongside the Greek state’s response, far right groups have set up road-blocks and patrols in Lesvos and are targeting and attacking non-Greeks with impunity.
Breaches of European and International Law
Such are the actions of the Greek state that the UNHCR issued a reminder on 2 March that:
Neither the 1951 Convention Relating to the Status of Refugees nor EU refugee law provides any legal basis for the suspension of the reception of asylum applications. Article 78(3) of the Treaty of the Functioning of the EU (TFEU) has been evoked by the Greek Government in this regard, however this provision allows for provisional measures to be adopted by the Council, on a proposal from the Commission and in consultation with the European Parliament, in the event that one or more Member States are confronted by an emergency situation characterised by a sudden inflow of third country nationals, while it cannot suspend the internationally recognized right to seek asylum and the principle of non-refoulement that are also emphasized in EU law. Persons entering irregularly on the territory of a State should also not be punished if they present themselves without delay to the authorities to seek asylum.[ii]
The Right to Seek Asylum
Greece’s suspension of the reception of asylum applications is a clear violation of the right to seek asylum. This right is recognised within the Universal Declaration of Human Rights (“UDHR”), which states that ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’[iii] Such a right is also recognised in various regional legal instruments, including the binding Charter of Fundamental Rights of the European Union (“European Charter”).[iv]
Criminalisation of Irregular Entry
The systematic criminalisation of those who have entered Greece to seek international protection is a grave breach of Article 31 of the 1951 Convention, which explicitly prohibits states imposing ‘penalties, on account of their illegal entry or presence, on refugees who…enter or are present in their territory without authorisation’.
The Principle of Non-Refoulement
The Greek government’s draconian attempts to prevent individuals from entering Greece to seek international protection represent clear violations of the principle of non-refoulment, enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees (‘1951 Convention’). The principle also appears in numerous human rights treaties,[v] and has been adjudged to implicitly arise from the obligations of states to respect, protect and fulfil human rights.[vi] The principle prohibits states from transferring or removing people from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations. It applies to all persons at all times, irrespective of citizenship, nationality, migration status or statelessness. It is a principle characterised by its absolute nature: it does not admit of exception, derogation or reservation,[vii] and it applies wherever a State exercises jurisdiction, including extraterritorial de facto control.[viii]
The prohibition of collective expulsion
The application of non-derogable non-refoulement obligations to state action beyond state borders renders the Greek governments attempts to prevent entry into its territory unlawful.[ix] The unlawfulness of such ‘push-back’ operations, which deliberately prevent people from reaching a given state territory, is also based on the prohibition of collective expulsion.[x] The prohibition of collective expulsion is an essential procedural safeguard to the principle of non-refoulement since a state cannot ensure it is returning persons to a place where they would be at risk of harm if they are expelled collectively. Despite cynical attempts to read the recent ECtHR decision in N.D and N.T. v Spain as providing an exception permitting collective expulsion in response to ‘unlawful’ or ‘irregular’ entry,[xi] this would effectively undermine the very purpose of the prohibition on collective expulsion and the principle of non-refoulement. The explanatory note to Article 4 of Protocol 4 ECHR makes it clear that the prohibition on collective expulsion was intended to apply unconditionally,[xii] as does the court’s previous case law on the matter.[xiii]
A worsening situation
Greek and EU context
Over 42,000 asylum seekers reside on the Greek islands in deplorable conditions. The ‘hot spots’ on the five islands are seriously overcrowded. They have effectively become open-air prisons, as people must spend most of their days in hours long lines for food, toilets, doctors, and the asylum office. There is lack of adequate infrastructure, such as accommodation, security, electricity, sewage, schools, health care. Sexual and physical violence is common. The catastrophic conditions[xiv] on the island for migrants have been denounced[xv] on countless occasions by several humanitarian and human rights organizations.
The Greek government implemented a new asylum law on 1 January 2020 with draconian measures that restrict the rights of migrants. This new law expands grounds to detain asylum seekers, increases bureaucratic hurdles to make appeals, and removes previous protections for vulnerable individuals who arrive to the Greek islands. All individuals that arrive from Turkey are now prohibited from leaving the islands until their applications are processed, unless geographic restrictions are lifted at the discretion of the authorities. These changes have led to an increased population of asylum seekers trapped in on the islands, and an increasing number of people who have had their asylum claims rejected and face deportation to Turkey. Legal Centre Lesvos has already denounced several serious violations[xvi] of asylum seekers’ rights since the law’s implementation.
The cause of the current crisis – Turkish imperial ambitions in Syria
The principle catalyst which has led to this most recent episode of the current crisis, is Turkey’s invasion and ongoing unlawful use of force in Syria. The situation in Syria worsens day by day, effecting the security and living conditions of millions of people in Syria and Turkey. Turkey insists on its invasion and aggression in Syria, with the aim of persecuting and repressing the Kurdish people. There are serious concerns that the Turkish state intends to continue its policy of committing international crimes against the Kurdish population in Syria. This is exemplified by Recep Tayyip Erdogan statement on 19th of February in which he expressed his determination to occupy and transform the border area in Syria into a safe place “at any cost“.[xvii] It is clear that millions of people who are seeking safety are paying the cost of Erdogan’s imperial dreams, which are themselves a manufactured distraction from the economic crisis, poverty and misery in Turkey.
Instrumentalization of refugees
Turkey’s announcement came just two days after 33 Turkish troops were killed in the conflict between Turkish and Syrian forces in Idlib. It is evident from the timing of these two events that Erdogan is weaponizing the suffering of millions of people fleeing violence to blackmail the European Union into supporting Turkey’s military offensive and imperialist ambitions in Syria. Members of the European Parliament have denounced ‘Erdogan’s blackmail’. However, through its border externalisation drive – paying neighbouring states to act as Europe’s border guards – it is the European Union that first turned people in search of safety and dignity into commodities and bargaining chips in service of its geopolitical interests. It is this, as well as the moral panic constructed by states on both sides of the Aegean, that has transformed the lives of millions of people into pawns in a game of imperialist posturing, amidst escalating state and street violence.
The ELDH calls for:
- An end to Turkey’s invasion and ongoing violations of the use of force in Syria
- An end to Turkey’s commission of international crimes in Syria
- An end to Turkey’s forcible transfer of refugees to its borders
- Turkey to become a State party to the 1967 Protocol Relating to the Status of Refugees, without limitations and the granting of international protection to all who require it
- Turkey to protect the human rights of those seeking international protection in its jurisdiction
- An end to the instrumentalization of the refugee population by the EU and Turkey
- An end of the illegal use of force by Greek and Turkish authorities against those seeking to enter Greece from Turkey
- EU institutions and Member States to ensure implementation of the 2001/55/CE Directive, specifically adopted to address a large influx of displaced persons in order to grant them a temporary protection
- The opening of all EU member states’ borders to allow those attempting to enter Greece or other EU States from Turkey to do so
- Immediate free passage from Greek ‘hot-spot’ islands to the mainland and to other countries they wish to go. To facilitate such movement, ELDH also calls for the immediate granting of travel documents to those requiring them.
- Access to international protection procedures for those attempting to reach Greek and other European territories
- Decriminalisation of those who have entered Greece irregularly
- Resettlement of those seeking international protection from Greece to other states in Europe in accordance with the principle of solidarity between member states
- An immediate official cancelling of the unlawful EU-Turkey statement
- The end of criminalisation of human rights defenders and activists who help refugees
[i] Migrants: les derniers instants de Mohamed, tué par l’armée grecque http://www.leparisien.fr/international/migrants-les-derniers-instants-de-mohamed-tue-par-l-armee-grecque-04-03-2020-8271990.php
[ii] UNHCR statement on the situation at the Turkey-EU Border – https://www.unhcr.org/uk/news/press/2020/3/5e5d08ad4/unhcr-statement-situation-turkey-eu-border.html
[iii] Universal Declaration of Human Rights, Article 14(1)
[iv] European Charter, Article 18; ACHR, article 22(7);
[v] Inter alia, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED); Inter-American Convention on the Prevention of Torture; American Convention on Human Rights; Charter of Fundamental Rights of the European Union
[vi] Human Rights Committee, General Comment 20; European Court of Human Rights, Soering v United Kingdom 1989; Inter-American Commission of Human Rights, The Haitian Centre for Human Rights et al v United States 1997; African Commission of Human Rights, John K Modise v Botswana (2000).
[vii] UNHCR Note on International Protection of 13 September 2001 (A/AC.96/951, para 16)
[viii] UN High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007; UN High Commissioner for Refugees (UNHCR), UNHCR intervention before the European Court of Human Rights in the case of Hirsi and Others v. Italy, 29 March 2011, Application no. 27765/09;
[ix] Hirsi Jamaa and Others v. Italy, Application no. 27765/09, Council of Europe: European Court of Human Rights, 23 February 2012
[xi] CASE OF N.D. AND N.T. v. SPAIN (Applications nos. 8675/15 and 8697/15) (Grand Chamber), Council of Europe: European Court of Human Rights, 13 February 2020
[xii] Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and the First Protocol thereto (ETS No 46), Explanatory Report, Council of Europe, Strasbourg, paras 32-33
[xiii] Hirsi Jamaa, particularly the concurring opinion of Judge Pinto de Albuquerque:
“The purpose of the provision is to guarantee the right to lodge a claim for asylum which will be individually evaluated, regardless of how the asylum-seeker reached the country concerned, be it by land, sea or air, be it legally or illegally. Thus, the spirit of the provision requires a similarly broad interpretation of the notion of collective expulsion which includes any collective operation of extradition, removal, informal transfer, “rendition”, rejection, refusal of admission and any other collective measure which would have the effect of compelling an asylum-seeker to remain in the country of origin, wherever that operation takes place. The purpose of the provision would be easily frustrated if a State could place a warship on the high seas or at the limit of national territorial waters and proceed to apply a collective and blanket refusal of any refugee claim or even omit any assessment of refugee status. The interpretation of the provision should therefore be consistent with the aim of protecting aliens from being collectively expelled.” (emphasis added)
*This statement is based on the IADL statement issued on 8 March 2020 which was drafted with contributions of ELDH.