70th Anniversary of the 1951 Refugee Convention in the wake of Pushbacks and Border Violence

The 28^th of July 2021 marked the 70^th anniversary of the adoption of the 1951 Geneva Convention – one of the most fundamental legal documents protecting the rights of refugees and outlines the legal obligations of States to protect them.

In particular, Article 33 of the Convention as well as the principle of non-refoulement – which is the cornerstone of international protection – explicitly prohibits states from transferring or removing individuals 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.

The principle of non-refoulement is unconditional in nature, broad and non-exclusionary. Through this lens, the prohibition of refoulement ‘applies to all persons, irrespective of their citizenship, nationality, statelessness, or migration status, and it applies wherever a State exercises jurisdiction or effective control, even when outside of that State’s territory’.

Over the past decades, the principle of non-refoulement has also been included in human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 16) and in regional human rights instruments.

What would happened without the Convention?

To appreciate the importance of the Convention, one needs to consider the counterfactual, i.e., what would have happened without the presence of the Convention? Considering the numerous occasions of violation of the Convention rules, even by countries who are proponents and champions of human rights, the role of the Convention in regulating issues of international protection becomes pivotal in ensuring the adherence to basic rules.

However, as conflicts and civil wars escalate and deteriorate, we are witnessing a progressive increase of forcibly displaced populations who are crossing international borders in order to seek international protection to Europe.

Despite the legal (and moral) obligations towards forcibly displaced people, states systematically disregard or circumvent the 1951 Geneva Convention and the principle of non-refoulement in direct breach of European and International law. Greece is an indicative example in this respect and an illustrative case study.

From 2015 onwards Greece is in the epicentre of criticism from (I)NGOs, independent authorities and activist networks, such as the Greek Ombudsman, Amnesty International, Human Rights Watch, Border Violence Monitoring Network, and Refugee Support Aegean due to the escalation of border violence, pushback operations, collective expulsions and left-to-die practices performed by state officials and FRONTEX at the Greek-Turkish land and sea borders.

At the same time, there are complaints about a plethora of human rights abuses, and practices taking place at the borders, such as rapes executed by the Greek authorities, which tantamount to torture and other cruel, inhuman, or degrading treatment or punishment.

Border violence and pushbacks do not arise in a vacuum

Border violence, pushback operations, and collective expulsions at the Greek-Turkish borders do not begin in a vacuum. As our previous and ongoing research indicates border violence, pushback, and violent abandonment are operationalised as modus operandi of migration governance in the southern EU borders, especially in Greece.

Violent pushbacks form a thanatopolitical border regime, and the politics of closed borders materialises through deterring-killing policies and practices. These deterring-killing policies and practices have been enforced since the 1985 Schengen Agreement, and have greatly proliferated in the aftermath of the 2015 refugee crisis.

Push-back operations combined with intimidation, torture and other forms of physical abuse, as well as left-to-die practices and abandonment of refugees in distress at sea, alongside extreme environmental conditions, dehydration, eventually expose refugees to death or to an increased risk of death.

Violating the most fundamental human right: the Right to Life

The Council of Europe Commissioner for Human Rights, Dunja Mijatović, in a letter addressed to the Greek Minister for Citizens Protection, the Minister of Migration and Asylum, and the Minister of Maritime Affairs and Insular Policy urge the Greek authorities ‘to put an end to the pushback operations both at the land and sea borders with Turkey, and to ensure that independent and effective investigations are carried out into all allegations of pushbacks and of ill-treatment by members of security forces in the context of such operations’.

In addition, the LIBE Committee on Civil Liberties, Justice and Home Affairs of the European Parliament in an investigation concerning Frontex’s involvement in human rights abuses highlighted a pattern of behaviour by the border- and coastguards that put lives at risk at sea, jeopardises access to asylum and uses violence to deter people.

The above-mentioned practices not only violate the principle of non-refoulment but even most importantly the inherent Right to Life embodied in article 3 of the Universal Declaration of Human Rights and articles 2, 4, and 6 of the International Covenant on Civil and Political Rights.

The right to life is the most fundamental human right, which is applicable without any discrimination, at all times and in all circumstances. It is the basis of all other rights, since any attempt to safeguard other rights is impossible if the right to life is not protected.

Greece is fulfilling its role as the European shield against refugees

However, the systematic and deliberate disregard of life through pushbacks and left-to-die deterrent border practices by state officials violate the right to life itself and, hence, they are state crimes. Moreover, the duty to rescue persons in distress at sea is a fundamental rule of the international law of the sea, maritime law, and international humanitarian law.

The left-to-die practices by state officials are arbitrary, consist of infringement of duty, and violate the 1974 International Convention for the Safety of Life at Sea (SOLAS), and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Greece routinely deploys pushback operations, collective expulsions, and physical violence in order to intercept and deter forcibly displaced people from entering the Greek territory and, consequently, Europe.

In this way, Greece actively fulfills its role and duty as the European shield and, at the same time, as an EU Member State by implementing EU policies.

Given that these practices (and consequently EU policies) systematically disregard and circumvent the 1951 Geneva Convention, the principle of non-refoulement, the inherent Right to Life, and other fundamental human rights, to what extent the EU itself is complicit to the crimes committed at its borders?