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Refoulement Violates International Law

The Huffington Post logo The Huffington Post 10/03/2016 David L. Phillips

The European Union's deal with Turkey was heralded as a "breakthrough" by Germany's Chancellor Angela Merkel. The deal envisions migrants and refugees forcibly returned from Greece to Turkey. For every Syrian sent back to Turkey, the EU will resettle one Syrian refugee from Turkey. Beyond ethical, political, and practical considerations, the deal is flawed and violates international law.
"Refoulement" (forcible return) is forbidden by international law. Persons who cross an international border have the right to protection. They cannot be returned against their will. Victims cannot be returned to a country from which they fled.
Inspired by the collective failure of European countries during World War II to provide sanctuary to refugees fleeing Nazi atrocities, the principle of non-refoulement was officially enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status, and Article 3 of the 1984 Convention against Torture.
Article 33 of the 1951 Convention Relating to the Status of Refugees affirms: "No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened..."
Filippo Grandi, the United Nations High Commissioner for Refugees (UNHCR), reacted skeptically to the EU-Turkey deal, "[I am] "concerned about any agreement that involves blanket return of all individuals from one country to another without sufficiently spelled-out refugee protection safeguards." He demands legal safeguards for any mechanism transferring responsibility for asylum claims.
Grandi welcomed the EU's financial contribution to support Turkey and refugee communities in Turkey. However, Turkey is an unprincipled and opportunistic partner. President Recep Tayyip Erdogan laments hosting the growing number of refugees who he has repeatedly threated to expel. "Let the United Nations advise other countries to accept the refugees," said Erdogan. The generic return of refugees to Turkey is potentially a step towards their repatriation to war zones in Syria or Iraq.
With the European Council under Germany's sway, the European Parliament (EP) should provide an opinion on the legality of refoulement. To this end, the EP Committee on Civil Liberties, Justice and Home Affairs should offer an opinion on refoulement. In addition, the Committee should formally ask the Legal Counsel of the European Parliament to refer the matter to the European Court of Justice.
Merkel talks about a European consensus, but the European Council is deeply divided over the EU-Turkey deal. The arrangement is actually a "pre-agreement" because some governments did not actually agree. The European Council will meet for further deliberations on March 17-18.
Opponents are galvanized by Merkel's heavy-handed tactics. German voters are also wary. The pre-agreement may backfire and cost her Christian Democratic Union upcoming state elections in Saxony-Anhalt, Baden-Württemberg and Rheinland-Palatinate.
EU Member States are also wary. They are concerned about Merkel's collusion with Turkey. They resent that Turkey has used the crisis to extort financial gain and EU privileges.
An EP member cynically likened the deal with Turkey to Donald Trump's proposal that Mexico solve the immigration crisis for America, by paying for the wall.
While Merkel deserves credit for taking in one million migrants and refugees, she and European leaders must remember the lessons of World War II. Appeasement does not work. Refoulement is an illegal and unethical solution to Europe's refugee crisis.
Mr. Phillips is Director of the Program on Peace-building and Rights at Columbia University's Institute for the Study of Human Rights.

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