Got the picture?

On 5 August 2016, the UN News Centre published a picture captioned UN team in Jordan uses cranes to hoist aid to Syrian refugees at sealed border. The picture is taken from Jordanian territory. The low mud wall behind the trucks marks the Syrian border. At the time, Amnesty International reported that more than 75,000 Syrian refugees were living in the desert on the Syrian side. The text accompanying the picture reports that “life-saving food and other supplies from the United Nations” are being “hoisted by crane and monitored by drones across the closed frontier” in what is called “a unique operation.” The World Food Programme delivered food packages, the International Organization for Migration contributed bread, and the UN’s children fund UNICEF hygiene kits.

WFP/Shada Moghraby

WFP/Shada Moghraby

This picture, as well as the perky accompanying press release, captures the outcome of international, and in particular of European policies vis-à-vis the Syrian refugee issue. In 2011, Syria had 23 million inhabitants. At present, some 11 million of them have been uprooted; 6.5 million of them are internally displaced (IDP’s, including the 75,000 people at the Jordanian border), and 4.9 million have sought refuge outside Syria.

After having accepted to host 655,000 Syrian refugees (on a population of 9.5 million) – this is about 7% of the Jordanian population – the Jordanian authorities have closed the border. The actual number of Syrians is estimated at 1.3 million, which is some 14% of the population. In 2016, the funding requirements of the international community were met for only 62% – which means that even the 655,000 Syrian refugees who were allowed to register are underfed, undereducated, unemployed, lack medical assistance and access to clean water. Therefore, from a political perspective, it is comprehensible that the Jordanian authorities feel left alone with the challenge they face in hosting Syrian refugees.

Like Lebanon (where 20% of the population consists of registered Syrian refugees) and Turkey (where 3% of the population consists of registered Syrian refugees), Jordan has closed the border for Syrian refugees. This is reminiscent of the Macedonian border closure in 1999, which the Macedonian authorities did when they felt left alone by the international community in hosting Kosovar refugees. This border closure was not censored by the international community, but it did lead to swift support for Macedonia and subsequently to a re-opening of the borders. Syrians are not allowed to enter Jordanian territory any more, and the Jordanian authorities try to prevent them from physically crossing the border (in addition to refusing registration to those who succeed in doing so nevertheless).

And so, there they are: 75,000 Syrians at the Jordanian border, in addition to some 200,000 at the Turkish border. Not only are they kept available as easy bait for any warring party that might want to make a point by engaging in genocide; they are also forced to remain in the desert. Perky UN press releases or not, their fate is less than human by any standard. Hundreds of thousands of people are enclosed in a war-torn country under circumstances that are not even close to an acceptable minimum.

How did we get here?

The dominant narrative in Europe holds that in 2015, European countries were confronted with an overwhelming influx of asylum seekers and refugees. This claim is evidently incorrect: the 1.3 million new asylum seekers constituted a mere 0.3% of the 508 million population of the European Union. That’s a lot, but pales in comparison to the challenge faced by other countries. Also, Europe is incomparably wealthier than Kenya, Pakistan or Jordan. The feeling of crisis (which in itself was real enough) was caused not by the numbers, but by a number of fundamental construction errors in the common European asylum law and policy. The arrival of a limited number of asylum seekers in 2015 formed its first stress test, and laid bare its “fair weather” character.

For decades, various and varying global conflicts have played out in places like Afghanistan, Iraq, Syria, the DRC, Horn of Africa and Central Africa. Sometimes this is entirely a proxy war (where local warring parties are supported in various ways by the US, Europe, Arab states, Russia, China), and sometimes it is a war between proxies and one or more of the global actors (as in Iraq in 1991 and 2003). These protracted conflicts have destabilized these regions fundamentally and durably.

The consequence of this has been the uprooting of tens of millions of people, further destabilizing the region. The funds needed to assist the people who fall victim to these humanitarian disasters are met, on average, for about 50%. This means that people are systematically undereducated, underfed, unemployed. There has been no meaningful system of resettling refugees in other parts of the world. Quite the contrary, the migration policies of Western countries, with the EU in an avant garde role, has been to immobilize people in their country or in their region, by combination of visa requirements; carrier sanctions; and improved document quality. This creates a market for irreguarized border crossings. At regular intervals, this leads to stock market-like fluctuations, with sudden peaks and drops: think of the 2006 cayuco crisis in the Canary Islands, the Central Mediterranean during the 2011 Arab spring, and the Aegean in 2015.

Despite the fact that, eventually, the numbers go down, the evident loss of control is considered to signify a failure (by individual states, by the EU) to respond to a mass influx. European states have responded by small adaptations of the common European asylum laws and policies, which may or may not be steps in the right direction but which are too insignificant to have any effect except in the long run.

Externalization

However, we do see an actual intensification of the external aspects of European migration law and policy. And we may be witnessing the shift to a new discourse which reverses the previous order of internal and external migration policy.

The classical form of migration control consists of checks exercised at the borders of a state’s territory. It entailed individual decision making by state agents concerning concrete persons. Over the past 25 years, we have witnessed a gradual shift to externalization. Enforcement of visa obligations is now implemented prior to entry, in 3rd states, by non-state agents. The most important form of this is the combination of visa obligations, carrier sanctions and improved technical quality of travel documents like passports. The effect of this is that migrants are unable to get on an airplane or onto a ferry, unless they have permission to enter a western country. This phenomenon (which in embryonic forms was developed for transatlantic voyages around 1900) is now intensified and perfected. Carrier sanctions have been harmonized by the EU; European surveillance systems have been integrated into EUROSUR; and the European border agency Frontex has been upgraded so as to form the European Border & Coast Guard.

The March 2016 EU-Turkey deal will serve as a blueprint for new forms of cooperation with 3rd countries. The crucial elements of this cooperation are the following:

  • Border control by the 3rd country: the 3rd country undertakes to put in place effective exit controls towards Europe, so as to stop new arrivals. And although this is not stipulated explicitly in these cooperation arrangements, the clear understanding is that the 3rd country in its turn will prevent entries into its own territory in order to prevent becoming overburdened. Thus, the closing of the Turkish/Syrian border (including reports about refugees being shot at the border) coincided with the closing of the EU-Turkey deal.
  • In addition, to get across that it is pointless to try to get to Europe, the EU and the 3rd country agree to engage in collective removal. This, the first operational paragraph of the EU-Turkey deal reads: “1) All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.”
  • Finally, Europe pledges financial & political support for 3rd country which is conditional on effective implementation of migration control by 3rd

This is not without precedent, as is clear from the Spanish Plan for Africa, and the infamous cooperation between Italy and Gadhafi’s Libya.  But with the EU-Turkey deal, the EU seems to have made this kind of cooperation into a blueprint for the major thrust of its migration policies. This is problematic from a constitutional perspective. The deal has been given the form of a press release, while content-wise it evidently is an international treaty. The European Union does have the competence to enter into international agreements, but European constitutional law provides for a specific procedure for this, with well-specified roles for the European Parliament and the Court of Justice of the EU. By pretending that this is just a press statement, the European Council has sidestepped these constitutional control mechanisms.  In addition, the deal is problematic from a human rights perspective. The provision that “all new irregular migrants will be removed” entails a form of collective removal explicitly prohibited in international law in the immediate aftermath of World War II.  Also, Turkey is considered as a safe third country while it does not comply with the requirements for being considered safe of either European or international law.

Notwithstanding these problems, Europe plans to expand the approach adopted as part of a more general cooperation policy, to be applied to Egypt, Tunisia and Libya.

Effects

European politicians and institutions claim major effects for the EU-Turkey deal. These effects seem evident, because the number of people crossing the Aegean from Turkey to Greece has decreased dramatically. But as I have shown elsewhere, 90% of this decrease precedes the EU-Turkey deal which for that reason cannot possibly be the cause of the decline. A modified version of the idea that the deal worked (the deal had a pre-life that was important; the closure of the Balkan route did the job) also do not hold under closer scrutiny.

In the newly developing European discourse, the failure of European asylum laws and policies to deal with the situation within Europe is actually not much of a failure. A sharp intensification has occurred in a long term shift in discourse. According to the new discourse, the primary policy instrument consists of externalization of migration control, preventing people from reaching European airports, ports, and shores. What has now become old school migration policy (applications for entry, individualized decisions subject to judicial review) is merely the fall-back option for situations where the primary policy instruments have temporarily failed.

As I indicated above, I am doubtful as to the actual effectiveness of, for example, the EU-Turkey deal. But following the line of thought in Adam McKeown’s Melancholy Borders, one might observe that Europe’s policies constitute new forms of exercising global power. One example may serve to illustrate this point. In 2011, Syrian nationals did not need visa for North-African countries. This enables the Syrian middle class to fly safely to North-Africa, and from there take smuggler boats to Italy. Under pressure from the EU, North-African countries introduced visa obligations for Syrians, which lead to the demise of the Central-Mediterranean route for Syrians and a shift to the Aegean. Therefore, one may doubt the effectivity of European policy. But at the same time, Europe has successfully appropriated the power to have a decisive say in what 3rd countries require of the subjects of yet other independent states. Apparently, it is legitimate for Europe to decide about the fate of people who are not it citizens, at the hands of authorities of sovereign 3rd states, on territories where Europe exercises no sovereignty. Because the populations subject to this form of remote control are non-white, this rings bells not just of colony and empire, but of race as well. The major effect of the externalization of migration control may occur not in the field of migration control, but in what Europe can get away with doing in the world.

Back to the wall

Despite this skepticism about the effects of European policies, it seems hard to deny that the Turkish, Jordanian and Lebanese border closings are inspired by a force majeure resulting from European policy. In the face of the biggest and most explosive refugee crisis in living memory, Europe and the rest of the world failed to share the burden of refugee reception with the neighbouring countries; and it even failed to pick up the bill for the expenses these countries have to bear. It is no more than logical that the neighbouring countries try to close the borders, and effectively do so by all means available where the landscape permits. The beauty of this is that it does not physically involve acts of state agents. Europe has appropriated the power to let die at the other side of the Syrian border, and has succeeded in doing so through remote control for the effects of which it purports not to be accountable. And international community then acts as if it is to be praised for hoisting insufficient amounts of aid goods to populations it has abandoned by locking them up in desert areas.

The Trump administration’s refugee ban has been supported in part by the notion of creating safe areas for Syrians in neighbouring countries as well as inside Syria. In my own country, The Netherlands, the notion of safe havens is still unmentionable. In 1995, Dutch UN forces impersonated the international community’s failure to stop the Srebrenica genocide; its unresponsive bystander role came close to constituting complicity. But even if we do not assume the worst: the situation of Syrian refugees in Lebanon, Jordan and Turkey makes clear that even in UN refugee camps they are largely left to their own devices. Without any doubt, the situation in the desert is much worse.

Therefore, the picture as well as the accompanying text which the UN published in August 2016 are great, and are exemplary. But they are so for different reasons than the UN thinks.

 

Thomas Spijkerboer is professor of Migration law at the Vrije Universiteit Amsterdam, and one of the lecturers in the master’s track on International Migration and Refugee Law there.

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