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By Delphine Rodrik, legal advisor at the European Center for Constitutional and Human Rights.

24 June 2022 revealed, yet again, the devastating consequences of European border control when at least 27 migrants and asylum-seekers lost their lives attempting to enter Melilla, one of two Spanish enclaves bordering Morocco. Video footage from that day documented Spanish officers handing back those who entered directly to Moroccan officers, as well as Moroccan border guards beating individuals who lay weak or lifeless on the Moroccan side of the border fence. Many others remain missing nearly three months after the tragedy. Yet placing the emphasis on state security, the Spanish Prime Minister framed the events as “a violent attack on the territorial integrity of the country,” and government officials pointed to the European Court of Human Rights’ (ECtHR) 2020 decision in ND and NT v. Spain as a justification of its so-called “rechazos en frontera” (or border rejections) to Morocco. 

In the widely criticized judgment referred to by the Spanish government, the ECtHR carved out an exception to the otherwise absolute prohibition on collective expulsions set out in Article 4 Protocol 4 to the European Convention on Human Rights (ECHR). The Grand Chamber found that two men from Mali and Cote d’Ivoire, who had also entered Spain via the Melilla border fence and were swiftly expelled without any evaluation of their circumstances, had engaged in “culpable conduct” by crossing irregularly and without demonstrating that they could not access lawful means of entry (despite evidence to the contrary)—in its words, “taking advantage of their large numbers” and “using force.” As a result, it argued, protection against collective expulsions simply did not apply.

Where does a hollowed-out Article 4, Protocol 4 and a climate of political hostility to migration leave victims of pushbacks—and understandings of their lawfulness? The violence directed at those trying to enter Melilla in June lays bare the concrete results of the idea that human rights protections do not apply at European borders to those whose movement may be deemed “culpable.” It also highlighted that pushbacks do not concern expulsions alone but rather often enable the type of violence witnessed so pervasively at European borders (and others). This reality sits uncomfortably with the prevailing paradigm through which pushbacks are most frequently evaluated, reinforced by the ECtHR’s recent rulings: requiring simply an evaluation of potential denial of access to asylum and risk of refoulement. Yet from the Spanish enclaves to Greek islands to the border zone between Poland and Belarus, states carrying out such pushbacks effectuate something even graver: the denial of legal subjectivity of people on the move.

Article 16 of the 1967 International Covenant on Civil and Political Rights (ICCPR) may offer a particularly useful framework through which to conceptualise pushbacks in their various forms—an argument developed in more detail in an International Journal of Refugee Law article. Article 16 mandates that “everyone shall have the right to recognition everywhere as a person before the law” and has been understood to articulate the guarantee that all individuals be treated as subjects, rather than objects, of the law. Negotiations for inclusion of the similarly framed right (Article 6) in the earlier Universal Declaration of Human Rights (UDHR) show that it was born out of concern for historically vulnerable or marginalised groups, with Drafting Committee member René Cassin stressing in 1948 that “such a declaration might seem unnecessary if the most recent history did not offer an example of forms of slavery under which juridical personality had been withdrawn from certain individuals” (58th Meeting of the Commission on Human Rights). For Cassin, the denial of legal subjectivity implicated the denial of all rights and therefore warranted a stand-alone articulation in the Declaration “as the first and most important step” toward concrete protection.

While the right to recognition as a person before the law is also articulated in regional instruments like the UDHR’s predecessor, the American Declaration on the Rights and Duties of Man (article XVII); the American Convention on Human Rights (article 3); and the African Charter on Human and Peoples’ Rights (article 5), it is conspicuously absent from the ECHR. Drafting notes reveal that this is due to drafters’ conclusions that its protections would be self-evident from the ECHR’s prohibition of slavery and forced labor (article 4), prohibition of discrimination (article 14), and right to a fair trial (article 6). More recently, commentators have argued that ECHR Article 4 Protocol 4 and Article 13 (the right to effective remedy) constitute the “functional equivalent” of the right to legal subjectivity as expressed in the American Convention on Human Rights, at least in the context of expulsions. Yet the ECHR drafter’s articulated understandings of this right suggest they did not foresee recognition before the law at risk of being undermined—perhaps enabling the rightlessness present at European borders today. 

The jurisprudence of the Human Rights Committee (HRC), tasked with overseeing state implementation of the ICCPR and evaluating alleged violations by individuals who file complaints before it, continues to reflect the concerns expressed during the UDHR’s drafting in the application of this right to more recent developments. In particular, the HRC has now found that enforced disappearances violate article 16 in dozens of complaints alleging state violations. In these cases, the HRC consistently confirms that a state’s “intentional removal of a person from the protection of the law constitutes a refusal of the right to recognition as a person before the law, in particular if the efforts of his or her relatives to obtain access to effective remedies have been systematically impeded” (for example, Bolakhe v. Nepal, §7.18). In the HRC’s reasoning, because forcibly disappeared persons “are in practice deprived of their capacity to exercise entitlements under law, including all their other rights under the [ICCPR], and of access to any possible remedy as a direct consequence of the actions of the State,” the relevant state has failed to recognize them as persons before the law (Grioua v. Algeria, 7.8). This analysis therefore links violations of article 16 ICCPR to circumstances in which states (1) intentionally handle individuals entirely outside of established legal frameworks and protections, placing them outside the protection of the law; (2) deny their status as rights-holders capable of holding and exercising any other rights; and (3) systematically impede efforts to access remedy for these violations. Describing enforced disappearance as a “paradigmatic violation” of the right to be recognised as a person before the law, the UN Working Group on Enforced Disappearances has also described it as “the right to have rights.”

Two complainants with cases pending before the HRC, both asylum-seekers from Iran and Syria, have recently argued that their series of several pushbacks from Greece and Croatia, respectively, violated their fundamental right to recognition before the law in a similar manner. In addition, a third applicant, who was a recognised refugee in Germany before Greek authorities detained him incommunicado, ignored his documentation, and expelled him to Turkey, argues that his pushback constituted an enforced disappearance, also invoking his related rights under article 16. Indeed, although pushbacks are a phenomenon distinct from enforced disappearances (yet in certain scenarios overlapping, especially considering the lack of a legal definition for the former), the HRC’s jurisprudence on the elements of an article 16 violation in this context are strikingly applicable to pushbacks as such.

First—like enforced disappearances—pushbacks are characterised by a complete disregard for domestic and international law, as well as a total lack of procedural safeguards. Rather than allow people on the move the chance to apply for asylum or other forms of international protection, states employ pushbacks precisely as a means of preventing them from accessing these legal frameworks. In the process, states also prevent apprehended individuals from accessing any other procedural safeguards, such as the right to a lawyer, to notify a third party of their detention, or to interpretation. States obstruct their access to any third party or assistance via carefully crafted tactics, including the confiscation and/or destruction of cell phones (a critical mean of communication with others but also documentation of the events in question); extreme haste and their swift return to border areas, such as in enclosed vans, concealing them from the outside world; and in some cases, their incommunicado detention pending such expulsions.

Second, the intentional creation of conditions placing individuals outside the law’s protection enables the treatment of people on the move as though they do not possess any rights whatsoever. The gratuitous ill-treatment meted out during the pushback process—such as beatings, whippings, forced nudity, other sexual and gender-based violence, and even the spray-painting of asylum-seekers’ heads—clearly highlights the real impacts of denying pushed back individuals’ status as rights-holders. As articulated by concurring HRC member Olivier de Frouville in the case Tharu v. Nepal, describing the impact of placement outside of the protection of the law during enforced disappearances, “right from the outset of their deprivation of liberty […] There is no appeal; no help can be expected from the outside and the very notion of ‘law’ vanishes. All that is left is the physical and mental restraint of the guards, who treat their victims as objects” (§3). Pushback victims are similarly treated as defenseless—ultimately rightless—and therefore at constant risk of further abuse that often materialises while under the returning state’s jurisdiction.

Third and finally, pushback victims face systematic impediments to any possible attempts to access remedies at the domestic level for their expulsions or related abuse. (For victims of pushbacks from Greece, for example, see the following argument laid out by RSA, ProAsyl, and ECCHR). By maintaining their position outside the protection of the law until their removal from its jurisdiction, the returning state denies pushed back individuals the ability to challenge any of the relevant (mis)treatment they have faced at its hands. Once pushed back from the territory in question, individuals have scant access to appropriate remedy from the state of concern—for instance, the possibility of contact with its prosecutors or investigators as a first step—nor often the means or security to pursue such a route from a third country that is unlikely their own. In addition, the frequent lack of documentation of individuals’ custody during such pushbacks leaves no legal trace of their presence or custody within the expelling state, which states can thus easily deny. Officers engaged in such pushbacks also conceal their identities through the use of balaclavas covering their faces or removing insignia from their uniforms, complicating attempts to identify the perpetrators. Together, pushbacks result in the non-recognition of the persons concerned as rights-holders who were present in the concerned state’s territory, manifested by their placement outside the protection of the law; the denial of their capacity to hold and exercise any rights from the moment of their apprehension to their ultimate expulsion; and the states’ continued obstruction of their access to any safeguards or procedure by which they could challenge such (mis)treatment. In effect, pushbacks reduce individuals to a state of complete rightlessness.

Understanding pushbacks as violations of the right to recognition as a person before the law may help take better stock of what is at stake when states attempt to justify their continuation. Indeed, pushbacks operate on the assumption that individuals who cross borders irregularly simply do not bear rights, an idea legitimised by political discourse as well as the ECtHR’s “culpable” terminology. These pushbacks in practice make such assumptions real, by dispossessing individuals’ capacity to hold any rights in the process and means of their return. Yet it should not take massive loss of life to understand the gravity of the rights denied during pushbacks, as intentional efforts to remove concerned individuals from all applicable legal frameworks. Rather than constituting a necessary feature of strengthened security, pushbacks reflect increasing lawlessness and erosion of the rule of law within Europe. 


Acknowledgments: I thank Hanaa Hakiki and Carsten Gericke for their comments on this post.