Across Europe, new laws criminalize desperate refugees

By Tiara Sahar Atai

On a Saturday morning in November 2020, Dimitris Choulis, a human rights lawyer from the Greek island of Samos, woke up to a message informing him that twenty-four asylum seekers had ended up on the beach.

Worried that they would be forced back to Turkey by the Greek authorities, Dimitris rushed to the mountains overlooking the coast. There were no asylum seekers – most likely they had left the area immediately for fear of arrest. Meanwhile, the Greek authorities had appeared, and so Dimitris rushed to the port, assuming that the newcomers would be sent back across the Aegean to Turkey.

Finally, the asylum seekers showed up and Dimitris began to reconstruct the events: their boat had reached Samos at midnight, after which one of the passengers, a six-year-old Afghan boy, had gone missing at sea. At about 1:30 a.m., a search and rescue team arrived – and immediately left without conducting a rescue mission.

The boy was found that same day. The cause of death was not drowning: he had worn a life jacket from his neck to his waist. On the contrary, the child had died when the waves slammed his tiny body against the rocky shore for nine hours. If the search and rescue team had been on a mission, the child would have been saved.

When they heard that the child had died, the Greek authorities stopped patrolling.

Authorities approached the child’s father and accompanied the news that his son had died with charges that he would face prosecution for his son’s death for putting his son at risk by seeking refuge. Hassan, another passenger on the boat, was charged with smuggling.

Dimitris took up the case and in May 2022, nearly three years after that fateful night on the coast of Samos, Hassan was sentenced to one and a half years’ probation and the child’s father was acquitted. “It was a very stupid thing,” Dimitris told me. “There was no evidence, nothing.”

However, acquittal is an exception. Smugglers never board a ship, so authorities consistently arrest the asylum seekers who operate the boat in their stead, resulting in many successful convictions.

Dimitris has taken on numerous appeals for asylum seekers who, unlike the Samos2, were not acquitted. In May 2022, the Paros3, three Syrian asylum seekers and the sole survivors of a shipwreck, were sentenced to life imprisonment for each of their 18 fellow passengers who died at sea, resulting in a combined sentence of 439 years.

This is the result of increasingly strict laws criminalizing asylum seekers. The Greek law 4251 of 2014 lays the foundation for these cases; Article 29 punishes “facilitation of entry from Greek territory of a citizen of a third country” with up to ten years in prison, while article 30 punishes “captains or masters of a ship” with at least ten years. Dimitris therefore points out that the outcome of the Paros3 case was legally correct, albeit horribly unjust.

Greek Law 4251 is based on the EU Facilitation Directive of 2002, which does not require a material advantage to define an act as smuggling. This means that anyone who helps refugees during their journey could be prosecuted on suspicion of smuggling. At present, only four EU countries meet the UN definition of smuggling that requires financial interest to bring charges.

Campaigns to reform the directive led to a vague resolution to end the criminalization of humanism in July 2018, but the EU fell short of including a humanitarian exemption in the directive that would have done so, with it arguing that they had no evidence that the Directive led to unjust criminalization .

That’s hard to understand, given the deluge of cases: Amir and Razuli, both Afghans in their 20s, were sentenced to 50 years in prison after a pushback that saw their dinghy sunk by the Greek coast guard. Their appeal was scheduled for March 2022, postponed to the following month when a government witness failed to show up, and finally to December this year to evade public scrutiny, Borderline Europe’s Julia Winkler told me.

Like most deterrents, criminalizing asylum seekers doesn’t stop it, it just makes it more dangerous. I spoke to Julia about the terrifying consequences of systematically criminalizing asylum seekers who drive the boat. “Sometimes asylum seekers are violently forced to send,” she told me. “We’ve even seen cases where asylum seekers who actually have naval experience choose not to send for fear of going to prison.”

The extent of this is unknown: Julia estimates that hundreds of asylum seekers are taken directly from the coast to prison. Statistics imply the same: 63 percent of the Greek prison population is foreigner.

In general, there are three tactics underlying the criminalization of migration: deterrence policies that try to make the country of origin so inhospitable that asylum seekers choose not to come to Europe; pushbacks that keep asylum seekers in transit countries such as Turkey or Belarus; and criminalization that keeps asylum seekers who have made it to European soil incarcerated. These policies are intertwined (e.g. impending criminalization contributes to deterrence) and are deployed to subjugate asylum seekers at every step.

In recent years, pushbacks have become systematic, government-led and increasingly violent. Just last month, 105 people were beaten and loaded onto a Greek naval vessel in a coordinated pushback to Turkey. Bulgarian border guards have used police dogs for pushbacks to Turkey, French police have sent asylum seekers back to Italy in freezing temperatures and Spanish soldiers have beaten thousands of people to send them back to Morocco.

Meanwhile, in Poland, reports have emerged of territorial forces abusing and harassing humanitarian aid services, even destroying ambulances providing medical aid to refugees, as Grupa Granica, a Polish human rights observer, told me.

Not to mention the deaths from EU-funded pushbacks. The Libyan coastguard, which has been funded by the EU since 2016 to prevent refugees from reaching Europe, has been caught firing at refugees in the Mediterranean.

Pushbacks are incompatible with international law, but by arguing that migration is a crime (hence the term “illegal migrant”), pushbacks can be seen as a form of law enforcement.

Legalizing human rights violations inevitably paves the way for the violation itself. Pending the Nationality and Borders Bill criminalizing entry into the UK, border troops were caught conducting “pushback exercises” in the English Channel.

Europe, paralyzed by its own xenophobia, has given Turkey and Belarus the chance to test the instability of the European project.

I spoke to Natalie Gruber, co-founder of the NGO Josoor, about the deadlock on the Turkish-Greek border. The NGO’s work to document pushbacks began shortly after February 2020, when Turkish authorities began directing refugees to the Greek-Turkish land border.

“Authorities brought people from pre-deportation camps across the country to the border, shared fence-cutting tools and had refugees storm the fence,” Natalie told me. Josoor’s volunteers were told to stop distributing tents, as only makeshift tents made of tarpaulin and poles were allowed. “The authorities tried to make it as inconvenient as possible for refugees to cross the border.”

Greece, backed by the EU, started violent pushbacks. Two people were killed by rubber bullets, but Natalie estimates the actual number is more likely to be six to seven.

And so the EU has been undone by its own xenophobia, by making it clear that it prefers a diplomatic deadlock to taking in a few thousand refugees in an area of ​​447 million. Seeing how easily Turkey destabilized the EU, Belarus adopted the same tactic and started directing asylum seekers to the EU’s external border in the Polish forest from July 2021.

In the wake of Europe’s first refugee crisis after World War II, leaders of state have enshrined human dignity in international law. Our current trajectory betrays this commitment, and yet the discourse on immigration has lately been so permeated with misinformation and disinformation that we are talking about the crime of migration rather than the crime of our migration policies.

The refugee law recognizes that asylum seekers can cross a border without documentation to submit an asylum application. While criminal law is designed to punish individuals who pose a threat to others or society in general, crossing a border or staying illegally in a country is not a crime against individuals.

Mixing up migration law and criminal law is a dangerous misnomer – and repealing the laws that mix up the two should be at the heart of any progressive migration reform. (IPA service)

Courtesy: Jacobin

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