Under pressure: a Rule of Law and humanitarian crisis on the external borders of the EU


The UNHCR and the IOM jointly called upon Italy and all EU Member States who abide by applicable legislation, to protect people and distribute responsibility within the EU fairly. Humanity and the Rule of Law are in the EU’s most basic interests – if these go unheeded at its external borders, they can hardly be defended within.

Auf Deutsch.


Their relief is palpable. The 246 men, women and children who had been rescued from the sea had to stay on board the “Humanity 1” and the “Geo Barents” for almost 2 weeks until they were allowed to set foot on land in Catania, Italy. This was an agonisingly long and uncertain time for people who had just risked their lives crossing the central Mediterranean to flee atrocities in Libya.

Even before this, two rescue vessels belonging to Doctors Without Borders and the German organisation SOS Humanity had had to wait for days before even being allowed to dock. Even when permission was finally granted, however, many of the people they had rescued were denied the right to seek asylum by the Italian authorities and refused permission to leave the vessels. Italy’s interior minister Matteo Piantedosi, who has held his post since the election of the far-right government, decreed that these people, supposedly not entitled to international protection and referred to contemptuously as “residual cargo”, would have to turn back with the rescue boat. It was not Italy, but the ship’s flag state – in this case, Germany – that was responsible, he argued.

When all the people on board the “Geo Barents” were finally allowed onto dry land, because the humanitarian situation on the vessel had worsened so dramatically, most of the refugees remaining on board the “Humanity 1” went on hunger strike, until the 35 of them were also permitted to leave the ship.

Meanwhile, two other ships were being denied permission to dock in Italy: the German rescue vessel “Rise Above” had to stay at sea for a week with its 90 rescued passengers. It was in danger of running out of fuel before it was allowed to land in Sicily. At the same time, the “Ocean Viking” belonging to the organisation SOS Méditerranée was forced to set a course for France with 230 people rescued at sea on board.

This makes almost 600 people saved from the sea who were forced to stay on these four boats for days or weeks; on top of the physical discomfort, these deeply traumatised individuals were denied any degree of certainty as to their fate.

This kind of tug-of-war over sea rescue vessels being allowed to dock in Italian ports is nothing new. There were similar cases back in 2019 during the tenure of interior minister Salvini of the right-wing populist Lega. He is currently the subject of legal proceedings over the “kidnapping of asylum seekers”.

What is different about this case is the manipulation of the Rule of Law: Italy is arguing that when a refugee steps on board a rescue vessel, he or she is now in the territory of the flag state in question; the Dublin Regulation, it further claims, is also applicable on the high seas and Italy is therefore not responsible for protecting these people.

The humanitarian organisations themselves and even the Italian courts and lawyers are, however, unimpressed by this interpretation and agree that Italy is in breach of several points of international law, particularly the applicable asylum and maritime law. The much discussed term, “pushback”, indicates, amongst other things, a violation of the principle of non-refoulement laid down in the Geneva Refugee Convention, specifically the requirement not to send asylum-seekers back without verifying their asylum application – in other words, precisely what the Italian government has done.

The UNHCR and the IOM have jointly called upon Italy and all EU members to abide by applicable legislation, protect people and distribute responsibility within the EU fairly.

The demand for responsibility sharing speaks to a decisive aspect: because what is playing out off the coast of Italy is not a matter for Italy alone, it is a matter for the whole of Europe. The fact that the practice of illegal refoulement has been allowed to establish itself so firmly over the years owes much to the lack of solidarity with the EU Member States on the external borders, particularly the Mediterranean states of Italy and Greece, so weakened by the financial crisis. On the basis of the Dublin Regulation, these border states were abandoned with responsibility for those seeking protection for decades, while at the same time, the mostly conservative governments of Germany were calling for border regimes to be tightened up, for domestic policy reasons. Even today, the process to create a mechanism for the distribution of people rescued at sea is making slow and painful progress. In the meantime, so-called pushbacks not just on the various external borders, but also on borders within the EU and the Schengen zone, are the order of the day. Only a handful of these cases even draw the attention of the international press – cynically, only when they are particularly brutal, such as the events of this summer on the border between the Spanish exclave of Melilla and Morocco, when more than 30 people died on a single day. The precise circumstances remain unknown to this day and the United Nations, as well as many human rights organisations, have accused both the Spanish and Moroccan authorities of disproportionately brutal handling of the refugees – voices calling for an independent investigation into the events are growing louder.

The fact that the situation on the external borders can be imputed not just to EU Member States, but also to the EU as a whole, becomes particularly clear when looking at the role of the EU border protection agency, Frontex. An internal report of the EU anti-fraud office, OLAF, recently published after months of pressure from members of the European Parliament and civil society, paints a depressing picture. The German weekly Der Spiegel and the organisation “Frag den Staat” (Ask the State) leaked the results of the 16-month investigation before the report was published. The shortcomings set out in the report are of such a serious nature that they forced the agency’s executive director of many years standing, Fabrice Leggeri, to step down. The report flags up the agency’s lies to the European Parliament and European Commission, cover-up attempts and at least indirect complicity with pushbacks: not only were no steps taken within the agency to prevent human rights violations on the external borders of the EU, it also turned a blind eye to these violations, failed to document them and certainly did not investigate them.

Pushbacks are happening on so many borders: on the border between Poland and Belarus, for instance (even though these have largely vanished from public notice); on the border between Croatia and Bosnia & Herzegovina; and on the land and sea borders between Turkey and Greece. Here, the so-called Evros 38 case last summer attracted a lot of attention. Over the course of several weeks, Turkey and Greece batted back and forth the blame and responsibility for refugees stranded in no-man’s-land, which ultimately led to the death of a five-year-old girl.

More and more people are now dying trying to reach protection in Europe. We very rarely find out their names and even the numbers are unknown. The IOM’s Missing Migrants Project (MMP) put the number of people who died on the various refugee routes to Europe in 2021 at more than 3,400. This is a tragic record, as it is the highest figure since 2016 and unknown cases would very likely make it even higher. Without the actions of brave rescue teams, many more people would lose their lives fleeing, particularly over sea. It is the consistent absence of any state rescue missions in the Mediterranean that make the work of civilian voluntary rescue vessels necessary. 

But instead of recognising this civil-society engagement, EU governments are making solidarity with people in flight a criminal act. There have been criminal investigations for years in Italy against the former crew of the rescue vessel Iuventa. The charge is one of “Assistance to people entering the country illegally”; the crew faces hefty fines and up to 20 years’ imprisonment. Amnesty International awarded its human rights prize of 2020 to the ten-strong crew, to represent everybody being criminalised for helping refugees. At the end of October, the trial against them had to be postponed once again due to legal errors and a subsequent voluntary police questioning session had to be given up after just a few minutes due to inadequate translation. This injustice was highlighted on social media under the hashtag #NoTranslationNoJustice. Five years after the Iuventa was seized by the Italian authorities, public attention is almost zero. The fact that people must fear criminal consequences for rescuing other people from drowning whilst seeking protection does not appear to be newsworthy.

Like the pushbacks themselves, state criminalisation is by no means a solely Italian phenomenon. It is also to be observed in Greece, Croatia, Poland and other states with EU external borders. That is precisely the aim: deterrence and reducing solidarity and therefore solidarity with refugees.

The overall picture being painted here is one of a Europe focusing on sending refugees back and refusing to take any responsibility. This responsibility is rooted not only in the much-touted “European values”, but also in the Geneva Refugee Convention. An enormous crisis is unfolding on our borders. It is one of the Rule of Law – and of humanity. And this is happening even though the relatively generous and bureaucracy-free reception of refugees from Ukraine this year has shown that the EU is very much capable of rapid, common action to protect people and can accept a relatively high number of refugees without being plunged into crisis.

But anybody hoping that this would shine light on the way refugees are treated in general is to be sadly disappointed. Quite the opposite is the case: we are experiencing increasing polarisation between EU Member States, made all the worse by recent election victories for right-wing parties in Italy and Sweden. It is by no means just the Visegrád states, led by Hungary and Poland, that oppose the adoption of a humane EU asylum and migration policy.

Although the German Federal government set out ambitious goals for EU refugee protection in its Traffic Light coalition agreement, its Interior Minister, Nancy Faeser, recently warned of a growing number of new arrivals via the so-called Balkans route and the Mediterranean. She stressed the importance of containing these numbers, so as to be able to help people in urgent need of support. In so doing, the minister denied people any entitlement to protection purely on the grounds of the route they took. At a time when refugee shelters in Germany are burning again, this is dangerous.

The comments are, however, also dangerous against the backdrop of a European Union in which a minimum consensus on respect for fundamental rights and adherence to the standards of the Rule of Law seem to be on shaky ground. As “guardian of the treaties”, the European Commission bears the responsibility for compliance with the treaties and EU law – but it is not fulfilling this responsibility.

This was shown most recently by an interview with Vice-President of the European Commission and Commissioner for “Promoting Our European Way of Life”, Margaritis Schinas, in Greece’s most popular daily newspaper, Kathimerini. In the interview, he expressly supported the asylum policy of the Greek government in his capacity as a representative of the European Commission, without saying a word about the many documented legal violations. Quite the reverse, he praised the “excellent controls carried out by the Greek government and Frontex in the Aegean”.

As for Frontex, he seems entirely unconcerned by all the issues. In connection with the Western Balkan states, the European Commission Vice-President went so far as expressly to regret the fact that Frontex is allowed to act only on the borders to EU States and not everywhere. He welcomed the fact that the third countries Serbia and North Macedonia had agreed to a Frontex mission on their border. Instead of working to address problems, the status quo is being maintained. There was no expression of any concerns over compliance with EU law whatsoever.

One of the very few grounds for hope is a judgment of the European Court of Human Rights, which recently found the Greek State responsible for the deaths of 11 people. In early 2014, eight children and three women from Syria and Afghanistan drowned off the Greek island of Farmakonisi as the result of a pushback by the Greek coastguard. Eight years and numerous courts later, the 16 survivors are now to receive compensation from the Greek State. This will obviously not undo the tragedy, but a judgment of this kind means at least a bit of justice for the survivors. It also makes it clear that the EU is not a lawless zone. It would be fatal if it was left to the courts alone to provide legal certainty. Humanity and the Rule of Law are in the EU’s most basic interests – if these are put under pressure at its external borders, they can hardly be defended within.


This article was first published in German on boell.de.