Bull, Hans Peter

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What Happened at the Greece-TurkeyBorder in early 2020?Hans Peter Bull 2020-09-30T11:00:03Following the killing of 34 Turkish soldiers during the Spring Shield military operationin Idlib, Syria on 27 February 2020, as Turkey expected the arrival of more refugeesfrom Syria, the Turkish President declared that Turkey would open its borderswith the EU and not prevent refugees and migrants from crossing to Europe. Thisannouncement immediately prompted an influx of migrants and refugees to Turkey’swestern border.In response, Greece closed Pazarkule-Kastanies and Ipsala-Kipi border gates andtook strict measures to prevent border crossings. Thousands of people, ranging from12.000 to 25.000, started gathering along the land border in Turkey. On 28 February2020 the Prime Minister of Greece tweeted that no illegal entries into Greecewould be tolerated. Accordingly, Greece strengthened its border forces on the landand also asked for further EU support for border protection. In addition, Greeceintroduced an emergency legislative decree on 2 March 2020 for the suspension ofthe right to seek asylum for individuals entering Greece for a period of one monthand for their return without registration, to their countries of origin or transit. Dueto the Covid-19 pandemic the asylum services were temporarily suspended on 13March 2020.On the Turkish side, the Pazarkule-Kastanies Border Gate was the most crowdedarea. It was reported that since the first day of the arrival of migrants and refugeesat the border Greece border authorities used tear gas, fog and smoke grenadesas well as rubber bullets to prevent entries, and beginning from 4 March 2020 theystarted firing metal bullets on individuals who attempted to cross the border. It wasalso reported that gas shells were thrown directly on individuals. Due to the closureof the Pazarkule-Kastanies border, some groups headed to crossing points alongEvros River and nearby villages. Around 5000 individuals were estimated to havebeen pushed back as they attempted to cross to Greece through the River. Somestated that they left their countries of origin due to risk of persecution but failed to getregistered and apply for protection in Turkey, or that their files got deactivated.As Human Rights Watch reports, a group of individuals testified that after crossinginto Greece, they were intercepted by armed men, kept in official or unofficialdetention centers and were stripped off their clothes, money and belongings. Someadded that they, including women and children, were mistreated through the use ofelectroshock and that they were beaten up with sticks. Local residents of the bordervillages confirmed the veracity of these accounts and attested to the arrival of half-naked individuals after having been pushed back.On the Turkish side of the border, the first couple of days after the arrival ofthe groups were reported to be quite hectic due to the size of the crowd and- 1 -cold weather conditions, coupled with continuous gas attacks which were feltmore intensively by the individuals due to wind. After the first week, the situationgot stabilized and as of mid-March the tension started gradually decreasing.Humanitarian and health assistance were provided by the Turkish authorities whilesome protection concerns such as limited hygiene conditions, accessibility of fooddistribution points, weaknesses in information sharing were pointed out from thefield.Following the identification of the first positive Covid-19 case in the country, theTurkish authorities introduced a new set of measures. Accordingly, the NationalAsylum Authority announced that a number of hygiene and health measures weretaken, the groups in Pazarkule were transferred to removal centers for a 14-dayquarantine and following the quarantine period depending on their status theforeigners would not be prevented from returning to their registered provinces ordeparting to any other country.As mentioned above, reports have documented allegations about those in need ofinternational protection being physically prevented from entering into Greece, beingsubjected to severe forms of mistreatment and deprivation of their liberty, propertyas well as being collectively expelled from the country without having the opportunityto apply for asylum. Thus, it could be argued there are violations of the right to seekand enjoy asylum, right to life, prohibition of torture, right to liberty and security andright to an effective remedy. Yet this blog will only focus on the most relevant rights/issues.Greece’s suspension of asylum applications is a clear breach of fundamentalprinciple of non-refoulement and it implies that Greece incurs responsibility underinternational law and EU law. The right to seek asylum is granted in Article 18and the prohibition of refoulement in Article 19 of the EU Charter of FundamentalRights. Besides, neither the 1951 Convention nor EU law provides for a legal basisfor the suspension of accepting asylum applications. Article 78(3) of the Treatyof the Functioning of the EU was used as a basis by the Greek Government forthe suspension of the aforementioned rights. Moreover, this provision requiresprovisional measures to be adopted by the Council upon a proposal by theCommission and in consultation with the European Parliament, in case one ormore EU member states face an emergency situation characterized by a suddeninflux of third country nationals. In fact, such a suspension does not apply for theinternationally recognized right to seek asylum and the principle of non-refoulement.International law grants a special regime and protection framework for refugees, thedefinition of which is internationally provided under 1951 Convention and translatedinto several domestic/regional laws including EU law. Such protection includesthe principle of non-refoulement which obliges the states parties not to returnrefugees to countries where they would face persecution (Article 33 of the 1951Convention). The term “refugee” in Article 33 covers not only recognized refugeesbut also asylum seekers who are potential refugees. Although the provision hastwo exceptions concerning national security and public safety, these are subject tocertain conditions and the requirement of individual assessment of each case. Thus,a blanket argument that a mass influx situation exists per se cannot form the basis- 2 -for these exceptions. The principle of non-refoulement is also supported by Article 3(in some cases by Article 2) of the ECHR in the Council of Europe region.At this point, it could be argued that removal of individuals to Turkey could notbe considered problematic since Turkey is considered as a “safe third country”within the meaning of Article 38 of the EU Asylum Procedures Directive. However,whether Turkey is a safe third country is questionable in particular after the adoptionof the EU-Turkey Statement. UNHCR has interpreted the concept of “safe thirdcountry” as requiring strict substantive criteria and procedural safeguards includingthe individual’s ability to challenge the applicability of the concept to his/her caseor existence of the close links or connection of the individual to the third countrybeyond merely being a “transit” country. (On this point please see Ilias and Ahmedv. Hungary ECtHR where the Grand Chamber analysed the risk of the applicantbeing sent back to his/her country of origin either directly or indirectly without aproper evaluation of the risk under Article 3). In their judgments the Greek Councilof State and Appeal Committees have accepted Turkey as a safe third country.The suspension of the EU-Turkey Readmission Agreement by Turkey in July 2019and the Greece-Turkey border crisis of early 2020 add further layers to the existinguncertainty about application of safe third country status to Turkey.Excessive use of force violating the right to life and the prohibition of torture,inhuman and degrading treatment is another important dimension of the crisis. Atleast two death incidents and one disappearance caused by the shootings, andseveral physical injuries due to throwing of gas canisters and beatings by the Greekauthorities were reported. Under human rights law the use of force by the stateagents may in some cases be justified; however, necessity and proportionality of theuse of force play a strong role in the assessment of such justification. The ECtHRin several of its judgments has ruled that less extreme measures should be usedto deal with crowd, protest or security problems (see Güleç v. Turkey; McCannand others v. UK). In short, states have a positive obligation to protect the right tolife; thus they must ensure that a proper system is in place not only to criminalizeunlawful killings but also to initiate legal proceedings for the deterrence of futurecrimes (see K#l#ç v. Turkey). A similar positive obligation of the state also exists toprevent actions that may constitute torture, inhuman, degrading treatment.It is less doubtful that Greece can potentially be held responsible for certain actsas a perpetrator before the ECtHR. In fact as reported a few cases against Greecehave been brought to the ECtHR on the basis of mistreatment by the Greek borderauthorities. However, particularly about the illegal crossings at the border, Turkey’shuman rights responsibilities could enter into the scene as well. It could be arguedthat Turkey “encouraged” or at least “facilitated” the movement of asylum seekersand migrants towards its western border. Interviews with those at the border revealthat many of them were assisted with transportation to the border area and theywere given the impression that the border on the EU side was open. They expressedthat they had been motivated by public announcements of the Turkish authoritieson the opening of borders and the possibility of crossing to Greece. Furthermore,there are allegations about Turkish authorities’ directing refugees to some (irregular)crossing points along with gendarmerie presence.- 3 -State authorities internationally called to ensure safe passage of asylum seekersand not to encourage irregular migration at international level. This overlaps withtheir positive obligations under human rights law. Particularly the right to life ofasylum seekers, which was at high risk during crossings through the Evros Rivershould have been protected in absolute manner as part of states’ positive obligation(see Önery#ld#z v. Turkey). Similarly, the public authorities are expected to takenecessary measures to prevent the victimization of asylum seekers by smugglers.It is questionable if sufficient measures were taken by the Turkish authorities for thepassage and security of those on the move (see M.S.S v. Belgium and Greece).Another important issue that needs to be taken into account is the destiny of thestatuses of returning asylum seekers/refugees after going back to their provincesof residence. There is a risk that they could lose their statuses under the Law no.6458 on Foreigners and International Protection which would lead to the issuance ofdeportation decisions against them. This risk requires close follow up in the field.Overall the Greece-Turkey border events of early 2020 showed that both countriesbear responsibility for the human suffering at the border.ConclusionThe decision on the entry, stay/residence and removal of foreigners falls underthe sovereignty of each state. At the same time, states also have human rightsresponsibilities which they need to fulfil while exercising their sovereignty.The recent border crisis between Greece (the EU) and Turkey has more than everrevealed that the EU views the refugee issue as a matter of border management.There is an increasing trend of “repression” than “prevention” of irregular entries tothe EU at the cost of serious interventions, even breaches of human rights. However,the asylum – migration nexus should not be disregarded during such bordermovements. Although many migrants seem to have left their counties for economicreasons, almost all come from conflict zones requiring proper examinations of theirclaims, which finally could qualify them for refugee status or at least subsidiaryprotection. Therefore, access to asylum is key for their protection.Experience has proven that migration cannot be “managed” through unilateralactions, in fact such actions destroy migration management completely. Effectivemigration management requires responsible states to assume active roles and fulfiltheir positive obligations on whom they exercise jurisdiction/effective control. In thisregard Greece (and other EU member states) must show more effort to stick to theirown values and comply with human rights in their relationships and cooperation withrefugee hosting transit countries. The human rights violations perpetrated withinthe EU soil and/or by EU member states undermine the overall credibility of the EU.Unfortunately, the EU is keener to view Turkey as a safe third country and to offerlimited financial support than resettlement as a form of burden-sharing to assistrefugees. Some EU states clearly objected to accepting more refugees while Turkeyhas been hosting the biggest refugee population in the world since 2014.- 4 -On the other hand, despite all its efforts in offering protection to refugees, Turkeygives emotional reactions, which at the end also puts refugees at risk. When globalfigures are taken into account, there is disproportionate weight on Turkey. However,this by itself cannot be an excuse for Turkey to apply policies that risk the livesand freedoms of refugees either. Turkey should also stick to its human rightsresponsibilities. Unless the EU and Turkey are able to reach effective responses incompliance with human rights, similar onward movements will be inevitable.- 5 -

What Happened at the Greece-Turkey Border in early 2020?

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What Happened at the Greece-Turkey Border in early 2020?

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