Images of migrants in bright orange tent-like structures, adrift on the Aegean, began to circulate online in March. In a new pattern of covert expulsions, spanning several Aegean islands, Greek authorities had begun weaponizing rescue equipment to violently expel asylum seekers.

Relying on migrants’ testimonies, video and photographic evidence, we documented 11 incidents, between March and May 22, in which asylum seekers arriving on Greek islands and into territorial waters were dragged out to sea by the country’s Hellenic Coast Guard. Authorities left them adrift in inflatable, motorless rafts. In August, the New York Times documented 31 expulsions, 27 of which involved this novel and dangerous tactic. According to the Times, more than 1,000 people were subject to such treatment.

The United Nations Refugee Agency (UNHCR) called on Greece to “refrain from such practices” and to “seriously investigate these reports.” Yet, as dedicated aid-workers and volunteers – some of whom are refugees themselves – have documented, the summary expulsions of asylum seekers from Greek islands and territorial waters have continued with impunity.

As the new pushbacks have become systematic, the surreal images of these fluorescent, tent-shaped rafts have quickly become an icon of Greece’s doctrine of border enforcement. In light of recent investigation revealing the extent of European Union (EU) complicity in this systematic practice, it’s high time to re-examine what, as a matter of law, is at stake in this pattern.

Most refugee lawyers tend to think of such “pushbacks” first and foremost as risking violations of the rule of non-refoulement: the prohibition of returning an asylum seeker to a place where they may be exposed to persecution or ill treatment. But this may not be the clearest violation in the life raft pushbacks. Regardless of their possible outcome when the asylum seekers reach Turkey, these acts constitute egregious violations of international human rights law in and of themselves. Even before refoulement may be concluded, they constitute acts of torture and inhuman and degrading treatment.

The Principle of Non-Refoulement

Whether the migrants were intercepted at sea or apprehended after arriving on land, these pushbacks violate fundamental rules of international law. The international standard of non-refoulement is enshrined in Article 33 of the 1951 Refugee Convention. Notwithstanding its seeming erosion in the practice of some States, it is at the center of international refugee protection.  Simply put, the rule prohibits the return of refugees and asylum seekers to any place where they may suffer persecution, torture, or inhuman and degrading treatment or punishment.

European regional human rights law sets out specific guarantees and procedures to safeguard against refoulement. EU Member States are obliged to provide asylum seekers with access to procedures for the determination of refugee status and other forms of international protection. Deportations, or ‘returns’ as they are referred to in EU legislation, must be preceded by individualized assessments, to ensure the person deported will not be exposed to the risk of direct or indirect refoulement.

The same applies at sea. Under EU law, where asylum seekers are intercepted in the territorial waters of a Member State, the responsibility of that State is engaged and there is an obligation to provide access to asylum procedures. In such cases, the Asylum Procedures Directive (Recital 26) envisages that asylum seekers ‘should be disembarked on land and have their applications examined’ in accordance with EU law.

Nevertheless, direct accounts from asylum seekers who have travelled to Greece, an EU member State and signatory to its asylum procedure regulations, reveal that the country is currently refusing to meet these obligations. Asylum seekers are routinely denied the opportunity to apply for asylum. In pushback incidents we have documented, the Greek authorities failed to even register the asylum seekers’ arrivals. Instead, they detained the new arrivals in unofficial sites (in some cases for a number of days). According to the migrants, Greek authorities deprived them of food and other material reception conditions (a widely-documented practice). The asylum seekers were then expelled. These accounts describe tactics consistent with testimonies from pushback victims on Greece’s land border with Turkey, where, as Forensic Architecture recently documented, the practice of pushbacks is “methodical and widespread.”

One incident we documented (further documented by Der Spiegel and Legal Centre Lesvos) illustrates these practices. On May 13, 2020, Amjad Naim, a Palestinian law student from Gaza, with approximately 30 other asylum seekers, crossed the Aegean Sea from Turkey to Samos in a rubber dinghy. He intended to declare himself a refugee and apply under the Dublin Regulation for family reunification with his wife, who has refugee status in the Netherlands.

Before reaching Samos, the Hellenic Coast Guard intercepted the asylum seekers’ dinghy and ordered them to return to Turkey. According to testimony, the Coast Guard shot live ammunition into the water around the boat and aimed guns at the asylum seekers’ faces. They proceeded to disable the motor of the dinghy with an iron pole, a practice that has been widely documented as far back as 2007. The asylum seekers were transferred onto the Hellenic Coast Guard vessel, where their personal belongings were confiscated. They were beaten and then forced into two life rafts – both of which were damaged – and left to drift in the open sea. The group was eventually brought back to Turkey by the Turkish Coast Guard.

 Turkey as a Safe Country

As they continue to deny allegations of violations of international law, one excuse offered by Greek government officials is that asylum seekers arriving via Turkey do not need international protection in Europe because Turkey is a ‘safe’ country. The status was designated under the terms of the 2016 EU-Turkey Joint Statement.

By concluding this deal, the EU has attempted to circumvent its obligations under international refugee law. Such circumvention is characteristic of a global pattern Daniel Ghezelbash has recently described as tactics of “hyper-legalism and obfuscation.” However, such tactics do not make the recent pushbacks legal. Even within the framework of the much-contested political agreement, the EU guarantees asylum seekers individualized assessments to ensure that their return would not expose them to torture or inhuman and degrading treatment.

As the jurisprudence of the European Court of Human Rights further affirms, the failure to sufficiently “examine each individual’s particular case” may also amount to a collective expulsion, in violation of Article 4, Protocol 4 of the ECHR (Khlaifia and Others v. Italy [GC], § 237).

Turkey has ratified the 1951 U.N. Convention on the Status of Refugees, but with important reservations to its ratification. Although it has become de facto home to over 3.6 million Syrian refugees, it still maintains a “geographical limitation” to the Convention. This means that only those fleeing as a result of “events occurring in Europe” can be granted formal refugee status under the Convention. A Hellenic Council of State decision in September 2017 found that the requirement of “protection in accordance with the Geneva Convention [on Refugees]” as stipulated in Article 38 (1) of the recast Asylum Procedures Directive does not explicitly require the third country to have ratified the Refugee Convention or to have adopted it without geographical limitations.

The Greek decision arguably contradicts case law from other countries, including the relatively restrictionist Australia, where courts have required “third countries” to be full signatories to the Refugee Convention. Nevertheless, under this decision, Greece maintains that Turkey affords asylum seekers “protection in accordance with the Geneva Convention [on Refugees],” and therefore constitutes a safe third country in which refugees must register their claims and to which they can be returned if they attempt to travel onward to Europe. This is the premise with which asylum seekers on Greek islands are rendered ‘inadmissible’ and thus, deportable.

Even if conditions for refugees inside Turkey provided “protection in accordance with the Geneva Convention,” – which they largely do not – Turkey’s lack of respect for the principle of non-refoulement is evidenced by reports of mass forced returns of Syrian refugees from within Turkey, and the interception and pushback of ‘hundreds of thousands of asylum seekers at the two States’ border. In one case documented by Amnesty International in October 2019, a man was forced back to Syria after having been caught by the Turkish Coast Guard while trying to travel to Greece. Such reports highlight how the actions of the Greek State place refugees at a great risk of indirect or ‘chain’ refoulement. Thus, it is not the EU-Turkey deal itself, nor merely reception conditions in Turkey, that should bar the country from being deemed safe. The problem today is, squarely, the risk of chain refoulement.

Beyond Non-Refoulement: Acts of Violence

The maritime expulsions – using life rafts to convey migrants into life-threatening conditions – are more than simply a means of pushing asylum seekers back from the border of Europe. As our previous post emphasized, the rafts have a symbolic aspect – a cruel metaphor for the refugee’s condition.

But even as a matter of law, our analysis needs to go further. The practice of abandoning people at sea in inflatable life rafts is itself a form of violence that violates the prohibition on torture and inhuman and degrading treatment. Rather than viewing this practice only through the lens of its effects (i.e. whether or not it results in refoulement), we must view it for what it is: an independent act of violence. This act is consonant with a larger “deterrence” paradigm directed at asylum seekers nearly everywhere on the fault lines of conflict, poverty, and climate change – the convergence of which Phillip Alston has identified as an emerging global apartheid.

In 2016, Charles Heller and Lorenzo Pezzani of Forensic Oceanography (FO) published “Death by Rescue.” Their remarkable report revealed how the Italian government’s abandonment of rescue operations, to be replaced by ill-trained private vessels, has caused a large-scale pattern of drownings in the mid-Mediterranean. Four years later, we are able to show how Greek officials use rescue equipment systematically in the perpetration of torture against migrants.

Indeed, the Italian “Death by Rescue,” and the Greek “Torture by Rescue” are fundamentally analogous. Such practices likewise recall the involuntary use of painkillers and psychotropic drugs on migrant children in the United States, which Stanford Law Professor Beth Van Schaack has argued constitutes torture.

In all of these examples, objects designed to assist humans in distress have been used to subject them to further pain and suffering. In the Greek and Italian cases, this is arguably what has been done not only with equipment but also with the very legal obligation to rescue vessels in distress. Echoing the insights of a large body of scholarship on the “weaponization” of international law, the United Nations Convention on the Law of the Sea (UNCLOS) and the Safety of Life at Sea (SOLAS) convention have both been put to deadly use.

In short, the Hellenic Coast Guard’s use of rafts to carry out pushbacks from Greek waters directly endangers the lives of the asylum seekers, and subjects them to “severe mental and physical suffering,” in violation of the prohibition on torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights. In several of the documented cases, the life rafts used were so damaged that they were not seaworthy. In Naim’s case, the group of approximately 30 asylum seekers was placed on two life-rafts, each with a maximum capacity of 12 people; the rafts immediately began to fill up with water, as seen in video footage published by Der Spiegel. The rafts continued to fill with water as the Hellenic Coast Guard recklessly towed the migrants towards Turkey before cutting the rope and sailing away, leaving passengers to float without means of propulsion or navigation, at grave risk of drowning.

Shared Responsibility

While the actions of the Hellenic Coast Guard are undoubtedly violations of international and European regional human rights laws, it would be misleading to describe Greece as the only government responsible for this form of torture and threat to life. Turkey and the EU need to take their own shares of blame.

When questioned about its authorities’ ill treatment of migrants, Greece consistently points the finger toward Turkey and its efforts to “weaponize the whole migration problem.” Turkey, for its own part, is happy to publish flattering images of its Coast Guard lifting men, women, and children from these floating tools of collective punishment.  But migrants’ accounts also highlight Turkey’s occasional denial of assistance at sea, and especially the conditions in which migrants are detained post-rescue.

For example, after what they described as three hours drifting, one of the Syrians on Naim’s life-raft says he decided to swim towards a Turkish Coast Guard boat, in an attempt to convince them to rescue the group trapped on the raft. According to his account, the Coast Guard refused, and he had to swim back to the raft. When they were finally brought ashore, Naim and others experienced abuse in Turkish detention. Naim described the dynamic between the two countries: “It feels like they are trading us…They have their political quarrels and we are the price.”

Greece and the EU have previously been accused of crimes against humanity due to border violence resulting in systematic violations of fundamental rules of international law, including in an article co-authored by one of us. These violations have not, thus far, triggered an international criminal investigation against Greek or European authorities, by the International Criminal Court or otherwise; nor has Greece been the only country where such allegations could be made. In the past six months, however, we have seen illegal forced returns and torture on the Aegean that have become “systematic or widespread” (under the chapeau of Article 7 of the Rome Statute), in an unprecedented way. The system of pushbacks using life rafts may be the clearest example yet of a crime against humanity perpetrated against asylum seekers and committed by agents of a Rome Statute member State.

Despite the clear and mounting evidence of systematic pushbacks and violations of fundamental rights on the Greek border, Frontex, the EU’s border and coast guard agency, continues its mission in Greece. A joint investigation by Lighthouse Reports, Bellingcat, Der Spiegel, ARD and TV Asahi revealed that the agency is not only turning a blind eye to these abuses. Revealing the depth of Frontex’s complicity in violations of refugee law, the investigation documented six incidents in which the agency was either directly involved, or in close proximity to a pushback. The investigation also revealed efforts to undermine the agency’s monitoring and accountability mechanisms—such as censoring transcripts of debriefing interviews with asylum seekers who reported pushbacks by Greek authorities.

Indeed, the lack of consequences for Greece’s systematic violation of international law is telling. Emergent patterns of border violence are not an aberration; the violent exclusion and abandonment of migrants is in many ways rooted in the structure of the EU’s agencies, asylum system, and its policies for migration management based around externalisation and deterrence. When the EU first directly intervened in Greece’s border enforcement, via Frontex, a decade ago, the logic was to gently discipline the violations of that time: European presence would presumably show that it is possible to enforce the border humanely. This did not prove immediately possible, but the Agency explained to Human Rights Watch that it tried. With the passing of time, we observe that the opposite has happened. That Frontex as an organization is gradually embracing the harsh reality of Greek violations reveals the structural dynamics at play.

On Sept. 23, the EU Commission introduced its New Pact on Asylum and Migration, with much fanfare. The initiative was pushed forward due to the perceived urgency to alleviate some of the human rights violations on the Greek islands. Addressing human rights violations in Greek facilities, EU Commissioner of Home Affairs, Ylva Johansson said that “It is not good enough to say never again, we need action and all Member States must play their part.” But as journalist Daniel Howden has rightly said, observers interested in EU migration policy should focus squarely on the enormous gap: sophisticated policy reform from Brussels, and growing impunity for pushbacks at the EU’s maritime borders. As he explained, perhaps more than ever, these are two aspects of the same system.

As long as the overarching policy objective is to keep people out, borders will continue to produce violence, and purported commitments to the prohibition of torture – made in Brussels and throughout Europe – will ring hollow. Within such conditions, even lifesaving equipment, ‘humanitarian’ objects, can become weapons of violence against unwanted populations.

Image: October 22, 2020, Asylum seekers adrift off the coast of Muğla, Turkey, in life rafts characteristic of Greek pushback operations. 76 asylum seekers on 4 lifeboats were eventually brought back to Turkey by the Turkish Coast Guard. Photo source: Turkish Coast Guard Command Official Website