“Pushbacks” as Euphemism

Late in March, the UN Refugee Agency, UNHCR, declared that it identified “hundreds” of migrant pushbacks from Greece. These have allegedly occurred in the Aegean and in the Evros region – the Northern land border between Greece and Turkey. While Greece continues to deny these allegations, it has now become abundantly clear that this is mere gaslighting. Aegean Boat Report, one of the most persistent documenters of these events, holds an enormous trove of photographic and other evidence of these actions. Leading media sites, as well as politicians in Brussels, have acknowledged these actions. In our own work with migrants and refugees, as scholars and advocates, we have often heard first-hand accounts of these violations.

The term “pushback” has emerged from the discourse of refugee advocates. It is a non-technical term to refer to a violation of the basic prohibition of refugee law – that of non-refoulement: no one should be returned to where they may suffer well-founded fear of persecution or ill-treatment. It is also a procedural safeguard ensuring that anyone with an asylum claim will be heard; and shorthand for the prohibition of collective expulsion. In the context of the pushbacks now flagged by UNHCR, the policy’s victims are “pushed back” to Turkey.

It is questionable, however, whether this term is fully appropriate. First, while some of those returned to Turkey may have bona-fide protection claims under refugee law, it may very well be the case that is not true about all victims of this policy. The situation in Turkey is rather different from, e.g., the protracted conditions in Libya, where presumptively returnees do indeed suffer from ill-treatment: torture, rape, or imprisonment in the most degrading conditions. Notwithstanding the risk of violations of migrants’ human rights,  there is no comparable evidence regarding Turkey.

As mentioned, the idea of “pushbacks” also includes a procedural aspect: any person who aims to seek asylum should be given the opportunity to do so. In that regard, the term may apply to the situation in the Aegean – whether refugees or not, those subject to the treatment are denied the procedural right of applying for asylum. Yet, a blanket pushback label for the violations against migrants in the Eastern Mediterranean does not capture the main issue at stake. Given the concrete pattern of abuses, it may even be perceived as an automatic reflex of an activist community, rather than the best descriptor of reality. Using the term pushbacks for all these cases risks tacitly agreeing to an objectionable underlying premise: that in order to deserve protection from certain categories of extreme border violence, one must have to be a “refugee” who has suffered persecution, rather than simply a person.

At the same time, from the perspective of general human rights law, the label may fail to capture the egregiousness of unabated violations at the South-eastern border of Europe. As Der Spiegel writes  in a report about the new UNHCR pronouncement, many of the relevant events seem to be part of a pattern far crueller than pushbacks. When a government official pushes back an asylum seeker without giving them access to asylum, their actions violated a basic rule of international law. Yet they may still display a will that the victim will be “back”, or returned. Perhaps they will not be safe; but they may still maintain some human integrity. The probability of extreme ill-treatment does not have to be 100% for an asylum seeker to have been considered “pushed back”. The policies that have mushroomed in Southeast Europe since the pandemic began do not display any such goal. Rather, they display an indifference to whether an asylum seeker is “back” or is simply left to die. And they often constitute extreme substantive ill-treatment in and of themselves, irrespective of what happens in the country they are returned to.

These policies range from the abduction of children from state facilities, stripping people of their identification documents, and arbitrary detention in make-shift sites. In a particularly well-documented pattern of violations, the Hellenic Coast Guard has deported migrants by dragging them by rope at high speed to mid-sea areas and abandoning them there. The Coast Guard has subsequently left stranded migrants far from shore in non-navigable rafts. Ironically, these have originally been designed as rescue equipment but are now repurposed to leave migrants adrift on open water. When a person is left to drift on open water, it is inappropriate to say they have been “pushed back”. Whether they get back or not is a matter of luck, not part of the violation. More appropriate would be a human rights violation that encapsulates a will to eliminate a person’s presence on the face of the planet.

In a memorable scene from the classical 1966 film, ‘The Battle of Algiers’, the French Colonel Matthieu holds a press conference and discusses the interrogation of FLN anti-colonial fighters. Responding to his failure to speak directly about the physical abuse of detainees, one journalist gets up to tell him, “we need to call a spade a spade”. He demands the Colonel uses the word “torture”. What is the “spade” for the systematic border violence the UNHCR and others are now flagging?

Surely, one of the options is to simply use the same term – “torture”. In an application we recently submitted to the ECtHR in the name of a victim of one such abandonment at sea, we have done exactly that. Other violations which can be invoked, and which we have indeed invoked, are violations of the prohibition of inhuman and degrading treatment, and violations of the right to life. Together, these capture some of the horror of abandoning migrants at sea on unnavigable vessels.

Practices of detention in clandestine locations may constitute Enforced Disappearances, under the International Convention for the Protections of All Persons from Enforced Disappearances. And finally, a number of actors, including most recently the Legal Centre Lesvos, have upped the ante even further and invoked the crime against humanity of collective expulsion. When it comes to violations of refugee rights, advocacy at the periphery of Europe seems to be in a constant search for more and more momentous language. While we believe all the above characterizations are legally valid, the question is not merely one of legal validity or indeed of momentousness. It is also one of ethical and even aesthetic appropriateness: what is the word that encapsulates most clearly this particular pattern of wrongs, in their concrete specificity, but also their relevant analogies to previous historical instances of abuse. By prioritizing pushbacks – the word seems to have been used in all of the major newspapers reporting on the events — the current cultural imagination of migrant rights still prioritizes the specific rights of refugees. This set of priorities makes the new violations in Southeast Europe more difficult to conceptualize for what they really are. And it ties the violations strictly to human mobility, while in reality a certain mode of authoritarian government is developing in the relevant border areas.

The term “pushbacks” is thus part of a wider turn in the cultural understanding of law pertaining to migration. This development is characterized by an erosion of refugee law, and a parallel license to inflict ever more extreme violence upon people on the move who are not bone fide refugees. Perhaps the best example of a judicial reflection of this understanding is the ECtHR’s decision in ND and NT v Spain. This case turned on the prohibition of collective expulsion, challenging Spain’s “pushback” practices. The Grand Chamber blamed the applicants for deliberately attempting to enter Spain as part of a large group rather than using “available” legal procedures. The lack of individual procedures to challenge the removal was therefore deemed to be a consequence of the applicants’ “culpable conduct”, their unlawful attempt to gain entry. 

The reference to a “large group” is, in our view, a kind of dog whistle that aims to say, “these are not refugees”. The applicants’ status as unauthorized migrants, in the eyes of the Court, removed them from the human rights protections otherwise afforded by the law.  Just because of this priority of the “deserving” refugee, did the Grand Chamber decide as it did – that the collective expulsion prohibition was not violated. To be sure, the Grand Chamber did not aim to allow “pushbacks.” It simply said: “this is not a pushback”. The influence of the decision has recently been demonstrated in a Frontex Working Group report where the agency asks the European Commission, in light of the judgement, when may it refuse access to individual asylum claims when people move collectively. The ND and NT v Spain decision thus reflects a willingness to tolerate violations of human rights which would presumably not be tolerated if the applicants looked more like “refugees”. But the point about human rights obligations is that they should apply to everyone within the jurisdiction of the Court. Only then should we ask if among those enjoying human rights, some also deserve the rights of refugees.

Among contemporary migrant advocates, the term “pushback” is often used as a euphemism (even if unintentionally). It enables an appeal to an imagined common ground with border enforcement agencies, according to which we all agree that refugees should be protected. By doing so, it also risks signalling that we all agree on which humans do not deserve protection. In such circumstances, the foundational tenets of refugee law, which are surely under a long and persistent attack, may also serve as cover. They may tacitly approve untold violence against those whose right to mobility is unrecognised, those simply suffering from economic death.