What is a pushback?
A pushback can be defined as an operation by which migrants and asylum-seekers are secretly apprehended and detained before being expelled from a territory. Across the EU, states are increasingly using such tactics to avoid having to house migrants and asylum-seekers and by pushing them back at the border, the state can circumvent its obligations to allow them to lodge asylum claims. This arbitrary method of preventing individuals accessing their rights has been widely criticised by a plethora of human rights organisations as well as the UNHCR and other members of the UN and the EU, for example this report: https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/pushback/CoESubmission.pdf
However, despite this strong rhetoric against the practice of pushbacks, there has actually been very little done to stop states, such as Greece, a notorious repeat offender, from carrying them out. Indeed, Amnesty International has argued that “the EU has also repeatedly failed to hold Greece to account for these serious violations, ultimately reinforcing the practice and tacitly giving permission for it to continue by way of inaction.”
Pushback practice in Greece
Greece is a state that lies as a point of first contact for migration routes through the Middle East and North Africa, and as such receives a high influx of migrants and asylum seekers, especially coming through Turkey. The Greeks have adopted a very increasingly hostile attitude, the UN special rapporteur on the human rights of migrants stated that “in Greece, pushbacks at land and sea borders have become de facto general policy,” in April 2022. Despite the fact that this has become so widely recognised, the Greeks have allowed to continue regardless. A crisis was seen in March of 2020 when Turkey announced it was opening its borders, this was almost 20,000 migrants come through Greece’s northern land border in the Evros region, and another 2,000 by boat. The Greek government responded with mass pushbacks and excessive violence and detention. Legislation was passed suspending the right to asylum for the month and stipulated that those crossing the border would be returned, giving pushbacks formal recognition. The UNHCR in response released a statement condemning the harsh measures adopted, “neither the 1951 Convention Relating to the Status of Refugees no EU refugee law provides any legal basis for the suspension of the reception of asylum applications.”
Since the events of 2020, there has been a greater level of scrutiny on Greek practices pertaining to the treatment of migrants and asylum seekers. The Greek Ombudsperson launched an investigation, the results of which were extremely worrying. They found that pushbacks in Greece involved ‘state agencies and state agents at the levels of operational planning logistics and perpetrators’, a level of organisation which ‘betrays’ the existence of it being state policy, according to Gkliati. The Ombudsperson described the system of pushbacks:
“foreign nationals, in small groups, cross irregularly from Turkey into Greece and reach a village or town, in most cases in the border area looking for access to the asylum procedure. They are intercepted by the police and have their mobile phones and identification documents removed. Then the foreign nationals are handed over to unidentified men usually in blue uniforms. They are then forced to embark unidentified vehicles, almost always white vans. They are driven to an unidentified building, bearing no signs, where they are locked in large rooms together with other detained foreign nationals. No communication with state services or civil society organisations is permitted, no information is provided, no food or water. Some hours later, other unidentified men, this time wearing black uniforms, take them to the Greek bank of Evros river. They are forced to get on board dinghies and they are taken to the Turkish bank. The whole procedure is fast and, usually, the foreign nationals have been pushed back to Turkey within 24 hours after they are intercepted.”
Even in the aftermath of this investigation, the Greek government have maintained and consistently denied the existence of a pushback policy. However, even their own figures do not support this. In 2021, Greece’s Minister of Shipping reported that the Coast Guard rescued 29,000 refugees and migrants, while the Minister of Immigration and Asylum reported that fewer than 9,000 refugees and migrants had entered the country that year, indicating a large and unexplained discrepancy (ECCHR).
The complicity of Frontex
Frontex is an EU agency, specifically the European Coast Guard Agency. It has been described as a ‘leading actor’ in the enforcement of EU border policies. Agencies are important in the EU institution and their use has been growing steadily. However, there are complaints that these agencies, like Frontex, operate with too much autonomy and do not have accountability safeguards.
Frontex helps states like Greece supplement their existing border force infrastructure. In theory, an agency like Frontex has been developed so that states do not have deficient methods of securing their borders, but also by carrying out search-and-rescue operations, in effect, to increase their capacity to deal with a crisis at sea. However, in practice, Frontex does not operate to protect human rights on the coast and has been accused of being complicit in a wide range of human rights abuses. For example, Der Spiegel published evidence of a push back by Greek border guards, which was witnessed by a Frontex aircraft which flew twice over the migrant raft and did not intervene to provide assistance or discourage the coast guard from carrying out an illegal operation. There has now been a special Scrutiny Group established at the European Parliament, a public enquiry which is investigating human rights abuses and Frontex operations in the Aegean Sea. Despite this, Frontex has maintained the line that they are not aware of the Greeks adopting a policy of pushbacks.
The case of WS & Other v Frontex was recently brought by Syrian nationals who had been removed in a joint operation between Frontex and Greece. The EU General court unfortunately dismissed their claim and stated that because of the nature of Frontex as an organisation, lacking the power to examine return decisions, its conduct was not casual of the damage the applicants suffered in being returned. However, it was never disputed that the operation took place, nor that it was a joint practice. This represents a gap in the ability for claimants to hold Frontex accountable as an organisation, leading Sarah Tas to call it ‘above the law’, with the ability to ‘escape any judicial review’.
The lack of accountability and the fact that EU agencies are themselves taking part adds to the implicit consent that Greece has been given from the international community.
A case study: Farmakonisi and Pylos
The European Court of Human Rights (ECtHR) has recently decided a landmark case which involves consideration of the Greeks’ use of pushbacks at sea. Safi & Other v Greece concerned the incidents of the 20th January 2014, where a fishing boat transporting 27 foreign nationals from Turkey to Greece sunk off the coast of Farmakonisi, resulting in the deaths of 11 women and children. The Greek coastguard was present at the sinking, with the applicants alleging it was their vessel attempting to tow them back to Turkish waters at high speeds which caused the boat to sink. Greece denies they were attempting a pushback, claiming they were attempting to tow the boat to a Greek island and that it had capsized due to the panicked movements of those on board. Representatives of Greece said, “there was no practice of push‑backs in the sense of a procedure of forcing back or towing … towards Turkish territorial waters …” and argued that the applicants’ submissions were ‘unnecessary and of no use’ as their account must have been flawed. However, the authorities themselves had tampered with the witness statements of the survivors and used translators who did not actually speak their language (one was later convicted of perjury), reducing the credibility of the applicants.
The court found two violations of Article 2 in relation to the flawed domestic investigation and the failure to take adequate positive measures for the protection of life, and also a violation of Article 3 in relation to the degrading treatment those rescued were then subject to. However, it held that it was not in a place to decide whether a pushback had occurred as the applicants could not prove it beyond reasonable doubt and subsequently only dealt with the facts that were not disputed between the parties. It admitted a large part of this was because of the lack of a thorough and effective investigation. This has the unfortunate effect of indirectly showing states how they can evade responsibility, by obstructing investigations, and making no records of their practices, rather than actually stopping pushbacks.
Tragically, the outcome of this case did not change the authorities’ behaviours, and earlier this year another migrant boat sank, this time off the coast of Pylos, with estimated 646 casualties. The survivors have again alleged that this occurred because of the high-speed towing of the Greek coastguard, which the authorities strictly deny. One again, the Greeks have been accused of witness tampering, statements being altered and none of them mentioning any reference to a pushback. It remains to be seen how the ECtHR decides this case, but what is clear is that a much more stringent attitude must be adopted and a higher level of scrutiny and scepticism towards the Greek government and their account of the events.
A way forward?
Clearly, harsher measures need to be adopted against states like Greece from being able to carry out such aggressive measures towards migrants and asylum seekers. Firstly, the EU must control its own agencies by providing an accountability framework and limiting the autonomy that Frontex operates under. Only then can it begin to implement sanctions against Greece. One suggestion would be to cut additional funding that is given to Greece to help it cope with the influx of people it sees, much of which the government uses to building prison-like ‘reception’ centres, until it can prove it has taken measures to adopt a less hostile attitude and completely eradicated the practice of pushbacks. It is clear that empty words and condemnation will not act as an effective deterrent. It is time for the international community to take action.
Author:
Nina Sherwood
Bibliography
‘The Next Phase of the European Border and Coast Guard: Responsibility for Returns and Push-Backs in Hungary and Greece’, Mariana Gkliati, European Papers, A Journal on Law and Integration
‘EU Migration Pact Fails to Address Human Rights Concerns in Lesvos, Greece’, Digidiki and Bhabha, Health and Human Rights Journal
‘Analysing Greek Pushbacks: Over 20 Years of Concealed State Policy Without Accountability’, European Center for Constitutional and Human Rights
HOW TO GET AWAY WITH REFOULEMENT: SOME THOUGHTS ON SAFI AND OTHERS V. GREECE
‘The Persistent, Pernicious Use of Pushbacks against Children and Adults in Search of Safety’, Bochenek
“Pushbacks” as Euphemism, Keady-Tabbal, Mann, Blog of the European Journal of International Law