For this reason, like President Lech Wałęsa, we voice our support for the European Union with regard to the current proceedings taking place before the Court of Justice of the EU on the matter of the Polish Law on Ordinary Courts and we are impatiently awaiting the Court’s verdict.
We appeal to the European Committee to take without delay the Law on the Polish Supreme Court to the Court of Justice of the European Union in accordance with the provisions of Article 258 of the Treaty on the Functioning of the European Union and to file the relevant motion for applying interim measures.
The history of our continent teaches us that when the foundations of our common liberties are demolished, their restoration becomes extremely difficult.
As Piotr Buras and I wrote, exactly one week ago, in “European tragedy”: this is not a Polish issue only, but an existential issue for all Europeans, which touches the future of the rule of law anywhere in the EU. The more European media highlight what is at stake in Poland today, and what might still be done; the more policy makers across the EU respond, and call on their governments and the EU to act … the better for our common European future.
The EU has no future as a community based on laws if there are no independent courts in all member states.
For more background on what is at stake, and why so many Poles react so strongly in recent days, read the full report here: www.esiweb.org/poland:
“Concrete swift actions by the European Commission, member states and the European Court of Justice can still pre-empt the worst if
– the European Commission vigorously pursues the ongoing infringement procedure against the Law on the Ordinary Courts, which it launched in December 2017 before the Court of Justice of the European Union. The worst signal at this moment would be to withdraw this before it allows the Court of Justice to assess the state of courts in Poland today;
– The European Commission launches an infringement procedure against the Law on the Supreme Court immediately before the Court of Justice, with the aim to stop the mass dismissal of judges set to take place in early July and which would be almost impossible to reverse later.
– Important EU member states voice their support for both steps. At the same time the Council must ensure that the European Commissions “reasoned proposal” on the rule of law in Poland, based on Article 7 of the EU’ treaty, is put to the vote as soon as possible, and receives broad backing from member states.
The Polish government’s assault on its judiciary represents a threat to the EU’s legal order and long-term political stability. The EU and national legal orders are now so intertwined as to make up a single patchwork quilt, from which so great a hole cannot be cut, without the whole unravelling.
The rule of law is central to the very existence of the European Union. The second article of the Treaty of the European Union states confidently: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” The EU’s Charter of Fundamental Rights states: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.” What is at stake in Poland today is the future of the EU as a project based on core principles such as the rule of law, separation of powers and human rights.”
I would like to express my deep concern about the crisis caused by the far-reaching changes to the Polish judiciary. These raise fundamental doubts at home and abroad. The violation of the independence of Polish courts threatens very negative consequences, for Poland, but also for the entire European Union. The EU, which is the anchor of the Polish raison d’etat, cannot function without free courts in each member state.
That is why I am calling on the Polish government, the European Commission and all political forces in Poland to do their utmost to prevent the irreversible consequences of the changes to the judiciary and the political crisis they have caused.
Only the verdict of an independent court can solve the problem of the independence of the Polish judiciary today. Political agreements cannot serve as a response to these dubious propositions, wherein the tripartite separation of powers, the fundamental principles of law and the Polish constitution are at stake.
That is why I favour asking the Court of Justice of the European Union to evaluate the most questionable changes to the judiciary system, as its judgments are binding both for the European Commission and for EU member states.
I support the European Commission in relation to the proceedings pending before the EU Court of Justice concerning the law on common courts, and I am awaiting the Court’s decision. I am also calling on the European Commission to refer the law on the Supreme Court to the EU Court of Justice under Article 258 of the EU Treaty. Due to the reduction of the retirement age provided for in this law, about 40 percent of the Supreme Court’s judges will have to end their calling prematurely on 3 July.
These provisions raise very serious legal doubts, and the Tribunal should be given the opportunity to judge them. I appeal to all political forces in Poland to support this legal path, which may lead to the protection of the rule of law in Poland and the EU, and to a resolution of the political conflict. I also appeal to the Polish government to refrain from taking any actions that would hinder such a solution.
Just as in 1980 there could not be freedom without solidarity, so today there cannot be freedom without the rule of law!
A new ESI report on this is coming early next week – in recent weeks we presented the ideas below at many meetings to policy makers, from Athens to Stockholm, from Berlin to Brussels.
If Europe’s current refugee and migration crisis has made anything clear over the past two years, it is this: the European Union urgently needs a credible, effective policy on asylum and border management that respects existing international and EU refugee law and controls external land and sea borders. It must treat asylum seekers respectfully while deterring irregular migration and undermining the business model of smugglers; it must save lives and respect the fundamental ethical norm of the rule of rescue, not push individuals in need into danger, which is at the heart of the UN Refugee convention (and its key article 33 on no-push backs).
The EU-Turkey agreement on refugees in the Aegean adopted on March 18, 2016, contains the elements of such a policy – but to serve as a good model it has to be fully implemented. The agreement is based on existing EU laws on asylum and on the principles of the UN Refugee Convention. It commits the EU to helping improve conditions for refugees in Turkey (the country in the world hosting the largest number of refugees today) with the most generous contribution the EU has ever made for refugees in any country in the world. It also makes improving the work and quality of the Turkish asylum service a matter of direct interest to the EU: only if Turkey has a functioning asylum system can it be considered a safe third country. Finally and crucially, it foresees substantial resettlement of refugees in an orderly manner from Turkey once flows of irregular arrivals in the Aegean are reduced. The fact that this last provision has not yet been implemented seriously does not make it any less important to the overall logic of the agreement.
Even without full implementation, the agreement has produced a dramatic and immediate impact on refugee movements in the Eastern Mediterranean. Crossings in the Aegean Sea fell from 115,000 in the first two months of the year to 3,300 in June and July. The number of people who drowned in the Aegean fell from 366 people in the first three months of the year to seven between May and July. This was achieved without pushing refugees to take other, more dangerous routes (the people arriving in Southern Italy this year were from African countries). And there have not been any mass expulsions from Greece either, something NGOs had feared would happen. In fact, more people had been sent back from Greece to Turkey in the three months preceding the agreement (967) than in the ten months since it was concluded (777).
It is obvious, however, that the EU has no current plan or credible strategy for the Central Mediterranean, and this presents a huge risk. The status quo is clearly unacceptable from a humanitarian point of view: in 2016 an unprecedented number of people (more than 4,400) drowned in the Central Mediterranean. It is also politically explosive, lending ammunition to those on the far-right across Europe (from Geert Wilders in the Netherlands to Marine Le Pen in France and the Alternative für Deutschland in Germany). They argue that the only way to control migration to Europe is by abolishing the Schengen open borders regime and restoring border controls within the European Union. The lack of a coherent EU strategy has led some to suggest looking to Australia for inspiration, praising a model whereby anyone reaching the EU by sea should be denied the right to even apply for asylum in the EU and be returned to North Africa. This would amount to the EU turning its back on the Refugee Convention, which would be a moment of existential crisis also for the UNHCR anf global policy on asylum.
A humane and effective border and asylum policy is indeed possible, and it does not involve emulating the Australian model. The first step requires implementing the EU-Turkey agreement in full. The second step would involve applying the right lessons to the Central Mediterranean as well. Both would require the EU to set up new structures, including credible EU asylum missions and instruments to resettle refugees, among others. Both depend on Greece and Italy persuading other EU countries that the challenge they face is a European one that requires innovative European solutions.
Nearly a year after it was signed into action, the EU-Turkey agreement remains at risk – and that despite its successes so far. This is because of inadequate implementation.
On average, less than 100 people have been returned to Turkey each month; many people who arrived on the Aegean islands have remained struck there in limbo for extended periods of time, while the number of new arrivals has been some 100 a day on average in recent months.
All this creates a realistic scenario for failure. Greek authorities, under pressure and without an answer for islanders who see Lesbos and Chios turning into a European Nauru (the Pacific island where Australia sends people who arrive by boat), might move larger numbers of people from the Aegean islands to the mainland. That would again lead to rising numbers of people crossing the Aegean. Once larger groups are moved to the Greek mainland, the humanitarian situation for refugees there, which is already bad, will deteriorate further. We would see the populist-led calls to build a stronger wall north of Greece multiply.
Already now, the number one topic of conversation among migrants stranded on the Greek mainland is the cost of getting smuggled across the Balkan route, either via Macedonia or Bulgaria. It is hard to imagine Greece making a major effort to stop people from leaving the country if Greeks feel the EU has left them alone. The weak Macedonian reception and asylum system might then collapse within weeks, once more people cross the border. The Western Balkans would turn into a battleground for migrants, smugglers, border guards, soldiers and vigilante groups, destabilizing an already fragile region.
If this scenario played out, it would be a serious blow to European leaders like Angela Merkel, who argue that it is possible to have a humane and effective EU policy on border management while respecting the refugee convention. It would also be a blow to already tense EU-Turkish relations. What is needed now is the right implementation strategy.
The EU should appoint a special representative for the implementation of the EU-Turkey agreement – a former prime minister or former foreign minister with the experience and authority to address urgent implementation issues on the ground. To preserve the agreement, the European Commission and Turkey should address all concerns raised about Turkey as a safe third country for those who should be returned from Greece. Such concerns can be addressed. As UNHCR noted already on March 18, 2016, everything depends on serious implementation:
“People being returned to Turkey and needing international protection must have a fair and proper determination of their claims, and within a reasonable time. Assurances against refoulement, or forced return, must be in place. Reception and other arrangements need to be readied in Turkey before anyone is returned from Greece. People determined to be needing international protection need to be able to enjoy asylum, without discrimination, in accordance with accepted international standards, including effective access to work, health care, education for children, and, as necessary, social assistance.”
Turkey would need to present a concrete proposal on how to ensure – and how to make transparent – that it is fulfilling the conditions set by EU law to be a credible safe third country for refugees of any origin, whether they are Pakistani, Afghan or Syrian, that Greece might return. It would need to guarantee – with more assistance from the EU and UNCHR, if need be – that there are sufficient asylum case workers, translators and legal aid in place to provide an efficient asylum process. There would need to be full transparency surrounding what is happening to each and every person returned, as well. Given the small number of people concerned this is all doable.
At the same time, the EU should send a European asylum mission to the Greek islands, including at least 200 case workers that should be able to take binding decisions on asylum claims (which would require an invitation by the Greek government and changes in Greek law, and assurances that any decision taken by such a mission could be suspended by a chief Greek legal officer). Those who are given protection should then be relocated across the EU immediately; all others sent back to Turkey. The principle behind an EU mission would be obvious: in times of crisis, there is a need for a substantial number of case workers, interpreters and reception officers to ensure quality standards for assessing protection requests, and with speed where most asylum requests are submitted. It would be unfair to blame Greece or any other country for being unable to deal rapidly with asylum requests of the tens of thousands of people; it would be unreasonable for Greece not to ask for such a European mission. Ultimately it is a matter of political will on the part of the EU and Turkey to deal with the few thousand asylum seekers now on the Aegean islands, in line with international norms and EU directives for their mutual benefit.
Adapting the Agreement
So far it has proven difficult to send a sufficient number of EU asylum caseworkers to Greece. At the same time, there are still no decent reception conditions for the relatively small number of people who have arrived on the islands since April 2016. These challenges cast serious doubt on proposals to slow illegal migration to Italy by setting up reception centers somewhere in North Africa; as some EU politicans have suggested, everyone who reaches Italy would be taken there to have their asylum claims processed. This is sometimes presented as a model inspired by Australia, which puts everyone who arrives via the sea in camps on the Pacific island of Nauru or on Manus Island in Papua New Guinea. In fact, asylum seekers held in Nauru in recent years have been forced to wait many years for their applications to be decided. Conditions of detention were and remain intentionally harsh to deter further arrivals. And once asylum is granted, it remains unclear where refugees might go (recently the US offered to help out and promised to accept a large number of people moved to these islands by Australia; it remains unclear whether this will actually happen). It is important to note that Nauru never hosted more than a thousand people at any given time. The notion that the EU might outsource the detention of tens of thousands of asylum seekers to camps across North Africa for long periods and under similar conditions is surely a recipe for failure.
So how might the EU reduce the number of arrivals – and deaths – in the Central Mediterranean? The key lies in fast processing of asylum applications of anyone who arrives, and in fast returns of those whose claims are rejected to their countries of origin. Both of these tasks should become European responsibilities. Anyone who would not get asylum should be returned to his or her countries of origin. Prioritizing the returns of anyone who reaches Italy after a given date and does not get asylum should become the central issue to be negotiated with African countries of origin. On the other hand, those who are given asylum should be relocated across the EU to support Italy and Greece and replace the inadequate Dublin system (the notion that Dutch or German case officers would decide which refugees remain in Greece or Italy would obviously not be acceptable to these countries).
What would be the likely impact of such a policy on arrivals? It is very likely that these would fall sharply.
Nigerians were the largest group of arrivals in 2016, and the majority would be unlikely to risk their lives crossing the deadly Sahara, unstable Libya and the Central Mediterranean and spending thousands of Euros on smugglers when the likelihood of being returned to Nigeria would be upwards of 70 percent, which is the current rate of rejection of Nigerian asylum applications in the EU. As noted, ensuring that Nigeria, Senegal and other countries take back their nationals who arrive in Italy after an agreed date should be the chief priority in talks between the EU and Nigeria – similar to the commitment Turkey made to take back without delay people who arrive in Greece after March 20, 2016. This would require that an EU asylum mission in Italy is able to process all claims within weeks. Rapid readmission would bring down the number of people who stay in the EU after their applications are rejected. In this way, the number of irregular arrivals becomes manageable – with less business for smugglers and far fewer deaths at sea. The aim might be to reduce the number of all irregular arrivals by sea to below 100,000 (for an EU of over 500 million people) already in 2017. Such a goal is realistic: it is, after all, the average number of irregular arrivals into the whole EU in the years 2009-2013.
European leaders could thus demonstrate to their electorates that it is possible to control external sea borders without undermining the refugee convention or treating those who arrive badly to deter new arrivals. European leaders should simultaneously push forward the global debate on orderly transfers of refugees through resettlement. The only way to do so is to lead by example, building up EU capacity for resettlement as well boosting the UNHCR’s capacity to do more. Coalitions of willing EU states should commit to resettle a significant number of vulnerable refugees each year.
In recent decades, resettlement has never reached more than 100,000 a year in the whole world, and of these the US took the lion’s share. Until now European states have not built up the bureaucratic machinery for large-scale resettlement. For this reason, pushing the EU to fully implement the resettlement provisions in the Aegean agreement (point 4) is vital and deserves to be an advocacy priority for human rights NGOs and refugee rights defenders.
In the face of rising anti-refugee sentiment across the world, it will take a strong coalition of countries to protect the refugee convention. Such a coalition requires governments who are able to win elections on the platform that a humane asylum policy and effective border control can be combined and can even reinforce each other. Such a policy needs to be based on core principles: no-push backs; no-Nauru; discouraging irregular passage through fast readmission and fast asylum processes; expansion of resettlement of refugees; and serious financial help to host countries elsewhere. If this happens lessons from the Aegean agreement with Turkey – the only plan in recent years that dramatically reduced the numbers of people arriving without changing EU refugee law – might help develop a blueprint for protecting refugee rights in an age of anxiety. The stakes – for Europe and for the UN Refugee Convention – could not be higher.
Thinking a lot recently about Karl Lueger, a successful politician in Vienna, one hundred and a few years ago. Weekend reading: an excellent book by Brigitte Haman, “Hitler’s Vienna”. On the crazy and dangerous ideas and political models emerging in the middle of a cosmopolitan metropolis in a complacent era.
What seems new in our politics today is not really new at all, facebok, twitter or other social media notwithstanding. Nor is there anything new in “post-truth” politics – when was “truth” important to nationalists, colonialists, decolonisers, or communists in the 20th century? If you do not have Haman’s book ready, have a look at the below description of one of the most respected democratic politicians in the late Habsburg empire. Then replace “Jew” with “Muslim” or “foreigner” in the text below, and you have a not so secret formula, which looks set to become the inspiration for political leaders in much of what was until yesterday the West … until it stops working.
It worked then, for Karl Lueger. He won elections. He managed to run a decent city administration. He also built a lot. His statue is still up in Vienna. But the consequences of this style of politics in the short and medium term were disastrous for his city, country and continent.
As will be the consequences this time, if this style of thinking, of politics without constraints, is not contained. Or, better put: defeated in elections. This is the only response that matters.
“Karl Lueger was an outstanding example of this new kind of politician: he attempted to get a feeling for the mood of “the people”; he like to hold speeches in dialect, took account of the intellectual level of his listeners, made complex issues simple and tried to entertain his public with humorous remarks.
He was especially successful when he attacked the supposed enemies of his listeners. He stoked antipathy to politicians with different points of view as well as national and religious minorities. His polemical attacks, sometimes extremely drastically formulated, were not directed towards reason but consciously appealed to emotions and instincts. Thus he understood how to use rousing speeches to win over the Viennese population to his cause, consciously invoking stereotypical images of alleged enemies and, in particular, making use of anti-Semitic prejudice. Every set back was reduced to a simple formula: “The Jews are to blame” and stirred up hatred with statements such as: “ We will prevent the oppression of Christians and a new Palestine replacing the ancient Austrian empire of Christians”.
In the process he activated the traditional Catholic anti-Semitism directed against “the people who killed God”. He combined it with anti-liberal and anti-capitalist elements and thus addressed the widespread prejudice against “money and stock market Jews”, “press Jews”, “ink Jews”, i.e. Jewish intellectuals and businessmen. Under his leadership the Christian Socialists regarded their main political task as the reduction of the “rapidly growing power of the Jews” and the reversal of their emancipation which had only taken place in 1867.”
Ein Artikel in der Frankfurter Allgemeinen Zeitung vom 27 September 2016 (Brüssel: Vertrag mit Türkei bewährt sich, FAZ, Seite 2, Dienstag) zeigt zweierlei: die Europäische Kommission erkennt nicht, was notwendig ist, um das EU-Türkei Abkommen umzusetzen. Sie versäumt es, Politiker und die Öffentlichkeit aufzurütteln. Stattdessen verschleiert sie Probleme. Das ist unverantwortlich und gefährlich. Wenn nichts passiert, könnte das Abkommen in den nächsten Wochen in sich zusammenbrechen. In diesem kurzen Überblick stehen die Aussagen der Kommission, die in dem Artikel zitiert werden, den tatsächlichen Entwicklungen gegenüber. Ein aufmerksamer Leser kann von selbst erkennen, dass hier vieles nicht zusammenpasst:
Die Zahl der Flüchtlinge, die in der Ägäis ankommen
Der Artikel beginnt optimistisch:
„Das vor sechs Monaten zwischen der EU und der Türkei vereinbarte Flüchtlingsabkommen scheint sich insgesamt zu bewähren. Zu dieser positiven Einschätzung ist die Europäische Kommission in einer Bilanz gelangt. ‚Ich habe keine großen Befürchtungen, dass das Abkommen zwischen der EU und der Türkei scheitert. Es steht für beide Seiten zu viel auf dem Spiel’, sagte ein mit dem Dossier betrauter Beamter am Montag.“
Dafür bietet der ungenannte Beamte folgende Argumente:
„Die Zahl der über die Ägäis aus der Türkei auf die griechischen Inseln gelangenden Flüchtlinge sei mit zuletzt durchschnittlich hundert am Tag auf einem ‚historisch niedrigen Stand’.“
Ankunft von Flüchtlingen aus der Türkei auf griechischen Inseln (2016)
Täglicher Durchschnitt Januar
Täglicher Durchschnitt Februar
Täglicher Durchschnitt 1-20 März
Täglicher Durchschnitt 21-31 März
Täglicher Durchschnitt April
Täglicher Durchschnitt Mai
Täglicher Durchschnitt Juni
Täglicher Durchschnitt Juli
Täglicher Durchschnitt August
Die Zahl der ankommenden Flüchtlinge lag im August bei durchschnittlich 111 am Tag. Das sind doppelt so viel wie im Mai oder Juni. Dieser Trend ist besorgniserregend. Es ist auch kein „historisch niedriger Stand“: auf ein Jahr umgelegt bedeuten 111 Ankommende am Tag insgesamt etwa 40,000 Ankommende im Jahr.
Um das einzuordnen hilft es, sich die Gesamtzahl ALLER, die die EU Außengrenzen in den letzten Jahren überquert haben, vor Augen zu halten: das waren von 2009 bis 2013 jährlich durchschnittlich 110,000 an ALLEN EU Außengrenzen. 40,000 im Jahr nur in der Ägäis wären eine historisch hohe Zahl, die nur verglichen mit dem Ausnahmejahr 2015 (als über 800,000 ankamen) „niedrig“ erscheinen mag. Dass der negative Trend der letzten Wochen nicht einmal erwähnt wird ist auch merkwürdig.
Die Zahl jener, die von den Inseln in die Türkei zurückgeschickt werden
„Positiv wird in der Kommission herausgestellt, dass seit Inkrafttreten des Abkommens von den griechischen Inseln bis zum Montag insgesamt 578 Flüchtlinge in die Türkei zurückgeschickt worden seien. Allein am Montag brachte ein Schiff 70 Migranten von der Insel Lesbos in die Türkei Dikili zurück.“
Das bedeutet, dass seit Inkrafttreten des Abkommens im Durchschnitt pro Monat weniger als 100 Flüchtlinge in die Türkei zurückgeschickt wurden – weniger als derzeit täglich auf den Inseln ankommen.
Was die Kommission nicht erklärt, ist erneut der tatsächliche Trend. Der sieht nämlich so aus: auch im September wurden insgesamt nur 90 Leute zurückgebracht. Im August waren es 16, im Juli niemand, im Juni 21 und im Mai 55. Die allermeisten wurden zu Beginn des Abkommens, im April (386), zurückgebracht. In der ersten Oktoberwoche ist noch einmal ein Transfer von 75 Menschen geplant. Doch danach ist es wieder unklar aus wie es weitergeht. Von einer Trendwende kann derzeit keine Rede sein.
Transfer von Migranten aus Griechenland in die Türkei bis 27 September 2016
Die Kommission erklärt übrigens selbst, warum es auch in den nächsten Monaten nur sehr wenige Rückführungen geben wird:
„Derzeit gibt es mit jeweils drei Mitgliedern besetzte Berufungsgremien, die derzeit monatlich nur 200 Fälle zum Abschluss bringen können Zur Bewältigung dieses ‚Flaschenhalses’ müssten die Verfahren gestrafft, mehr Personal müsse eingestellt werden. Ziel sei es, die Dauer des Prüfverfahrens auf zwei bis drei Wochen zu begrenzen.”
Das bedeutet: egal wie viele Fälle die Asylbehörde in erster Instanz derzeit bearbeitet (und es sind nicht viele – siehe weiter unten), die erwartete Zahl derjenigen, die von der zweiten Instanz monatlich „zum Abschluss“ gebracht wird, liegt bei „nur 200“ … und das bedeutet noch nicht, dass alle 200 auch in die Türkei zurückgebracht werden.
Derzeit gibt es noch keine Erfahrung mit den Berufungsgremien, aber selbst wenn ALLE 200 Fälle pro Monat in einem Rückführungsentscheid in die Türkei enden, wären das weniger als derzeit in ZWEI TAGEN auf die Inseln kommen.
Die kleine griechische Asylbehörde ist der Aufgabe auf den Inseln nicht gewachsen.
„In der EU-Behörde wird zudem erwartet, dass auch die Zahl der ‚Rückführungen’ von Flüchtlingen aus Griechenland in die Türkei in Kürze deutlich zunehmen wird. Inzwischen sei in Griechenland über die Zulässigkeit von rund 3500 Asylanträgen – davon gut 3000 von syrischen Flüchtlingen – entschieden worden. Dies entspricht der im März gegebenen Zusage, Asylanträge im Schnellverfahren zu prüfen.“
Doch selbst wenn 3,500 Anträge in sechs Monaten entschieden wurden, dann sind das weniger als 600 im Monat. Derzeit kommen PRO WOCHE mehr Flüchtlinge und Migranten auf den Inseln an.
Man kann es drehen wie man will: sechs Monate nach Inkrafttreten des Abkommens haben weder die erste Instanz der Asylbehörde, noch die Berufungskommissionen, noch die – immer noch dramatisch unterbesetzte – EASO Mission auch nur ansatzweise die Ressourcen, die notwendig wären zu verhindern, dass die Schere zwischen der Zahl der Ankommenden und der Zahl der in die Türkei zurückgeführten nicht weiter aufgeht.
Die letzte der zitierten Aussagen der Kommission wirkt vor diesem Hintergrund bemerkenswert:
„Günstig habe sich zuletzt die Versorgungslage für die Flüchtlinge entwickelt.“
Dass sich die „Versorgungslage“ auf den Inseln günstig entwickelt haben soll, nachdem das wichtigste Lager Moria auf Lesbos erst vor kurzem brannte, während die Differenz zwischen Bedarf und Resourcen immer grösser wird, und obwohl Proteste der Bevölkerung auf den Inseln immer mehr zunehmen, ist schwer zu glauben. Es widerspricht auch dem, was Journalisten und Menschenrechtsorganisationen von den Inseln berichten. Abgesehen davon ist jedem Laien klar was es bedeutet, wenn
sich heute doppelt so viele Menschen auf den Inseln befinden als Kapazitäten vorhanden sind, sie gut zu versorgen (UNHCR);
jeden Tag so viele Menschen auf den Inseln ankommen wie durchschnittlich im Monat in die Türkei gebracht werden;
der Trend zeigt, dass die Zahl der Ankommenden steigt, die Effizienz der Behörden aber seit Monaten stagniert.
All das wirft die Frage auf: Wie kann eine Organisation, die bestehende Probleme und alarmierende Trends nicht wahrnimmt, diese Probleme lösen? Und was macht die Europäische Kommission, wenn in wenigen Wochen die griechischen Behörden das Handtuch werfen müssen und tausende von den Inseln wegbringen, und damit den Schlepper in der Türkei signalisieren, dass das ganze Abkommen einzustürzen beginnt?
Kapazität und Auslastung in den Lagern auf den griechischen Inseln, 13. September 2016
The inventor of management studies, Peter Drucker, noted once that, while high intelligence and imagination are far from rare in executive jobs, “high effectiveness” is often conspicuously absent. Many brilliant minds are strikingly ineffectual.
“While others rush around in the frenzy and busyness which very bright people so often confuse with ‘creativity’, the plodder puts one foot in front of the other and gets there first like the tortoise in the old fable.”
The European Union and its institutions are famous plodders. They have excelled at stitching a continent together by putting one foot in front of the other. Take Schengen: invented by a small “coalition of the willing” in 1985, it took until 1995 before France trusted its Benelux neighbours enough to implement the Schengen rules it had itself crafted. Soon Schengen turned out to be so popular and effective that it attracted many other countries to join, even non- EU members like Switzerland and Norway. It became part of EU rules, one of the most popular European projects, transforming lives for citizens and businesses. It has often been challenged, but never replaced, based on many compromises and interests slowly reconciled in endless meetings.
The plodding progress of the European Union institutions in Brussels can, given enough time, change the geopolitics of a whole continent. Yet things often look different when it comes to an unexpected crisis.
Frenzy and failure
In recent months, the European Commission and the European Council have been gripped by frenzy, even panic, as they sought to devise credible policies to deal with the sudden inflow of a million people into the Schengen area. One busy summit and extraordinary meeting followed another. As EU staff rushed through the corridors, many a speech and policy idea was presented that – upon a little reflection – should never have been tabled. But once announced, even obviously unworkable schemes had to be explored, tested and defended, with frantic attempts to stave off their eventual, inevitable failure.
This has certainly been the case for one of the supposed flagship projects in the recent crisis: the idea to set up an internal “relocation mechanism” – a scheme whereby those who arrive to claim asylum in Greece or Italy are relocated to other EU member states according to a key designed by the European Commission, with every country showing “European solidarity” by accepting a number of immigrants and asylum seekers.
This scheme has turned into a humiliating experience for the EU. It was adopted in September in a rare majority decision, outvoting countries who claimed that the scheme was both unworkable and wrong on principle. This led to serious tensions among EU members.
A few months on, even the most Europhile of observers have to admit that the doubters had a point: designed to relocate 160,000 people in two years, it has so far led to the relocation of no more than 500 people. It has failed altogether where it mattered most – in both Italy and Greece. These are embarrassing, even laughable numbers, and they make the EU look strikingly ineffective. Meanwhile the Commission has tried to shame member states into offering more places, while Greece and Italy are under pressure to set up “hotspots” whose precise purpose even EU ambassadors in the same country seem unclear about (Are they registration offices? Refugee camps? Detention centres?). In the meantime, the refugees move on, through Greece and the Balkans into the heart of the European Union, apparently unaware that somebody had other destinations in mind for them.
The search for culprits for this failure has led some in the EU to focus their ire at Greece: If only Greece would register everyone, if only Greece would have set up enough hotspots to accommodate and hold (by force?) its new arrivals, if only it would keep track of people, then the relocation idea would be viable.
Blaming Greek administrative ineptitude is convenient and comes easy to other Europeans, but in this case is completely off the mark. Obviously so, because Italy has had no greater success with the relocation/hotspot approach. In fact, the relocation scheme is profoundly flawed in conception, and could not work, no matter who was responsible for its administration. More than that, in a time of crisis when European ideals are at stake, it is actively harmful.
The current relocation scheme has already eaten up a huge amount of time and political capital, at a moment when both are in short supply. It has spawned many meetings and papers, but the number of people who arrive in Greece from Turkey has not been affected, nor the number moving on from Greece into the rest of Europe. It has increased the sense of distrust and acrimony inside the EU. It has given the EU’s critics a tool to beat European institutions with. It has made the EU look feckless, bumbling and, above all else, ineffective, while exposing it to populist attacks from those opposed even to this very abstract idea of burden sharing.
So what is to be done? A simple reflection makes clear why the relocation scheme from Greece should be scraped and replaced immediately by a voluntary effort based on moral pressure to instead resettle refugees directly from Turkey, ideally already at next week’s EU Council meeting.
Who is relocated? And why?
Many well-intentioned people continue to place their hopes in the relocation scheme as a solution to the refugee crisis. So let us pause for moment to examine what would happen over the next six months if the scheme were implemented as foreseen by its architects. Here is one possible best-case scenario.
Let’s imagine that 100,000 people were to arrive in Greece between 15 February and end of April.
Let’s assume that Greece manages to register every single one of them; that hotspots are set up that not only register but also host these refugees, becoming a string of refugee camps throughout Greece.
Let’s assume that the people who arrive believe in the relocation scheme and patiently wait to be assigned a place in any of the countries where they are supposed to go; and then go. They will not try to cross any borders as they have in the past year, and will not rebel against being held in hotspot/camps until their turn comes
Let’s finally assume that all states that are supposed to take part in this relocation scheme make all places available right away. All administrations involved work smoothly.
Then, at the end of April, the Commission and the EU presidency call a press conference to declare that relocation has been a big European success. A huge mobilisation of resources and total focus by all parties across the EU have made the scheme work as envisaged. And then one journalist asks, like the child wondering about the Emperor’s clothes, what the point of all this was? After all, this scheme will not lead to even one fewer refugee arriving in the EU.
It is much more likely to have the contrary effect. If potential asylum seekers would see this scheme as the only way to get into the EU in 2016, they might – in panic to get of these limited 100,000 places – rush to Greece in the coming months in ever larger numbers. Note that the vast majority of the people who would be relocated from Greece after 15 February are currently in Turkey! The scheme would give people an even bigger incentive to cross the Aegean, to risk their lives and to enrich smugglers.
What would happen once all 100,000 places are taken? It is unlikely that a new relocation quota would pass the Council. Even if it did – for another 100,000 people to be distributed from Greece – the same problem would be posed two months after that at the latest. In the meantime, far-right, anti-immigration, anti-Muslim, anti-refugee parties, boosted by constant press reporting on the progress of the relocations, would get even stronger.
If effective action requires working on the right things, then the relocation scheme fails disastrously because it diverts attention from the only things that really ought to matter now:
How to prevent more people drowning in the Aegean Sea
How to disrupt the operations of people smugglers
How to restore control over the EU and Schengen borders
How to help substantial numbers of recognised refugees find a safe way to the EU, so the EU can share responsibility for the refugees with Turkey
How to improve conditions for the many displaced persons who will remain in Turkey.
The relocation scheme achieves none of these things. In fact, it would be actively harmful. In the extremely unlikely best case scenario of full implementation, it would leave the EU facing a worsening refugee crisis with its ability to forge any future consensus compromised, perhaps irreparably.
If the relocation scheme is abandoned next week: what then?
If this scheme – poorly conceived, impractical, and unhelpful even if implemented – were abandoned, what should replace it?
Let us return to the basic fact that the 100,000 people to be relocated from Greece to EU member states in the next few months are not currently in Greece. They are in Turkey.
Imagine if the relocation scheme were not to require these 100,000 people first to cross to Greece (irregularly, in the hands of people smugglers, resulting in many more deaths), but instead could be implemented in a safe and orderly fashion in Turkey.
In recent days, leaders in the Netherlands and Germany have spoken out about the need to take contingents of Syrian refugees directly from Turkey within weeks – in return for Turkish willingness to take back anyone who crosses to Greece from that point onwards.
This is no simple matter: it would require serious preparation and the full attention of already overstretched administrations. It would take some time for the numbers attempting the Aegean crossing to fall away; in the meantime, Greece would need the administrative capacity to process those who reach the islands. The states in the coalition of the willing need to find ways to work with Turkey on an orderly resettlement process, sending a clear signal to these refugees not to get on boats. This would be a serious test of national capacities and European cooperation. It would need to be the main focus on European summits and technical meetings for the coming months. It can be done, but only if it is taken very seriously indeed.
ESI suggests that the February Council meeting in Brussels declares first that the relocation program is scrapped, or at least suspended. At the same time, it calls upon all countries to voluntarily take at least the number of people they would have been required to take from Greece directly from Turkey.
There would be no coercion. In fact, this step would remove a major argument of those who use this scheme to attack the EU.
There would now be strong moral pressure. After all, this voluntary resettlement scheme is not only designed to help refugees – whose fingerprints will be checked against databases of known terrorists – but also to help Turkey, at a moment when it is under immense pressure from Russian military operations in Syria. How could Turkey’s NATO allies refuse to participate in a voluntary burden-sharing scheme, if it supports Turkey, helps refugees and restores control over Europe’s borders?
The European Union needs trust to work. The relocation debate and its subsequent failure have eroded that trust. A voluntary burden-sharing scheme, as part of the Merkel-Samsom plan, could restore it.
This is not a defeat – but the best way forward for European ideals
Some will argue that this would be a defeat. If the EU cannot make even a modest relocation program work, how can it ever have a shared, centrally administered asylum system?
But this argument is based on denial. Unpalatable and unworkable schemes, like building a wall across Macedonia (a non-EU member) with EU support, so as to trap refugees in Greece (an EU and Schengen member) shows the damage that flawed and muddled thinking is doing to European ideals. Clinging to a poorly designed scheme only adds to the damage already done.
The EU will not get a central asylum system without first resolving this crisis. If anti-EU, illiberal parties gain strength on the back of public fear that mainstream parties and the EU have lost control, the political space for collaboration in this critical area may disappear.
Perhaps a centralised EU asylum system is not an appropriate goal. Coping with refugees in large numbers is perhaps possible for strong and democratically legitimized governments, like Germany, Sweden and the Netherlands. The EU as a political entity may never be strong enough to do so. Ironically, if the authority for refugee policy is moved to Brussels, the likely outcome is a less liberal EU stance, with reduced access for refugees.
The debate on future EU asylum policy is a serious one, of course, and arguments can be made on both sides. But anyone who cares about “European ideals” should admit that this moment of crisis is not conducive to a serious debate. The EU has been revealed as strikingly ineffective. The relocation scheme is an abject failure, and could not have been otherwise.
The EU needs to be effective in its response; not in the distant future but in the coming weeks and months. The best way forward is to scrap the relocation scheme at the EU Council next week and to replace it with a voluntary scheme based on the Merkel-Samsom plan. The time to get serious about how to allocate precious focus and resources is now.
Peter Drucker defined the characteristics of effective action as follows: it is action defined by concrete results. It requires working on the right things. It requires clear criteria that enable work on the truly important. Effective executives do not start out with the things they cannot do. Effective executives know that their time is the most crucial limiting factor. To be effective requires eliminating time-wasting activities – reports and monitoring that lead to no results; recurrent meetings that are not focused on what truly matters. An effective executive also takes care not to waste the time of others he or she needs. He or she is always aware that bringing too many people into coordination mechanisms is usually a time waster. As Drucker noted:
“My first-grade arithmetic primer asked: ‘If it takes two ditch-diggers two days to dig a ditch, how long will it take four ditch-diggers?’ In first grade, the correct answer is, of course, ‘one day.’ In the kind of work, however, with which executives are concerned, the right answer is probably ‘four days’ if not ‘forever’.”
The opposite of a good policy idea is not always a bad policy idea. It can also be a good policy idea badly implemented. This is the big threat facing plans now pushed by Germany of a resettlement of Syrian refugees from Turkey.
Today senior representatives of some European governments meet in Brussels to follow up on the meeting last Sunday of a coalition of willing states, initiated by German chancellor Angela Merkel.
Their agenda is to set up a voluntary resettlement scheme for hundreds of thousands of Syrians under temporary protection in Turkey. They will discuss how, under the condition that irregular migration is stopped, such a scheme could partly replace irregular migration by legal and controlled migration. The aim is a scheme where (some in) the EU and Turkey share the responsibility for the biggest refugee crisis in the world today.
But here is the problem: the approach taken to this needs to be adequate.
There are some ideas floating around which will ensure that a good idea might sink like a stone in the pond of administrative failure:
involve UNHCR, IOM or any other organisation in a prominent role. i.e. a scheme whereby Turkish authorities share registration data with UNHCR.
There is no need to involve UNHCR in this, except as a source of advice.
run such a resettlement scheme through EU institutions, with prominent roles for the European Commission and EU delegations
European institutions should obviously be involved in the debates on this, but they also need not have an administrative role.
In preparing for today’s meeting the European Commission asked how such a resettlement scheme could be “effectively designed”. And suggested that the aim should be:
“expedited resettlement scheme or humanitarian admission that does not take longer than 3-6 months from the submission of the resettlement proposal from UNHCR to the Member state authorities to the physical transfer of the person concerned.”
Note: it would take “no longer” than 6 months, after a request from UNHCR to a member state, for a person to actually leave Turkey.
This dooms the effort.
The challenge is to find a quick way to resettle Syrian refugees from Turkey to EU MS.
Direct cooperation with DGMM
The quickest way is to leave out all unnecessary intermediaries. It is the Turkish Directorate-General for Migration Management (DGMM) that has registered the Syrian refugees (as well as all asylum seekers) in Turkey and which has information on them. It would make more sense to work with the DGMM directly.
Of course, MS could dispatch liaison officers to smooth cooperation, but they do not need UNHCR as an intermediary, which would request the data from DGMM and then pass it on to the MS.
MS will need a local partner, or send their own staff on the ground, who will be in touch with the refugees – collect applications and documentation from those willing to resettle, contact them if additional information is needed, let them know when the security check will take place etc. Whether this should be UNHCR or another organisation is a different question. (UNHCR also worked with local implementing partners. E.g. the organisation ASAM – Association for Solidarity with Asylum-Seekers and Migrants – used to register asylum seekers and I think still serves as a first contact point; they then send them to the DGMM.
EU MS should decide on their own profiles, the EC should establish a light framework
The EU should establish a framework together with the EU MS willing to resettle refugees, settling questions such as which nationalities to take – we suggest only Syrians -, how to avoid a pull factor, that a certain percentage should be vulnerable cases etc. However, it should leave it to the EU MS to decide on the specific selection criteria.
When Germany resettled 20,000 Syrian refugees from countries neighbouring Syria as well as Egypt between 2013 and this year under its Humanitarian Resettlement Programme for Syrian refugees (HAP – Humanitäres Aufnahmeprogramm), it chose for the first contingent of 5,000 refugees the following criteria: “Firstly particularly vulnerable refugees, secondly refugees with a link to Germany, and thirdly refugees with special qualifications that could be useful for Syria’s reconstruction.” For the second and third contingents of 5,000 and 10,000 refugees, respectively, it put a stronger emphasis on the presence of family members in Germany. These family members could submit a request that their relatives be resettled to Germany.
MS should decide on technicalities in line with existing legislation
Under the Humanitarian Resettlement Programme for Syrian refugees, Germany did not grant the resettled refugees asylum (refugee status) or subsidiary protection. It offered them temporary protection in line with the EU’s Directive on Temporary Protection and Germany’s Residence Act (Art. 24 on temporary protection and Art. 23 on Admission in case of special political interests).
UNHCR and Caritas Lebanon made a selection based on applications from refugees. In addition, German embassies made suggestions (humanitarian cases they already knew of), and when the criterion “family members in Germany” was emphasised, refugees were also selected based on the requests filed by the family members in Germany, collected by the German federal states.
All these bodies sent information concerning the selected refugees to the German asylum authority (Bundesamt für Migration und Flüchtlinge – BAMF), which examined it and then issued admission agreements (Aufnahmezusagen).
With this paper, the refugees could receive a visa at the German embassies/consulates. There they underwent the usual security check, which includes giving fingerprints. Those that did not have passports could receive temporary travel documents based on other identity documents.
Then the majority were flown to Germany. Those that had family members had to travel on their own. The federal states that had to accommodate the refugees without family were informed in time so they could prepare for their reception.
The challenge to resettle 500,000 is of course different. However, the HAP offers some important lessons:
It is not necessary to conduct an asylum procedure. Germany can offer the refugees temporary protection, like it did for the 20,000 HAP refugees. Even if it wants to channel them through an asylum procedure, BAMF can decide cases based on the documentation, like it has done for Syrians since November 2014. So, in practice this means that DGMM sends the required documentation to the BAMF, with German liaison officers smoothing cooperation. Of course, this will mean a lot of additional work for DGMM, so Germany will have to compensate it for it, or send human resources to reinforce it (who could, e.g., contact the refugees if the necessary documentation is not complete).
Germany will definitely need an intermediary on the ground, or provide for it by itself, because there will be issues like having to request from the refugees additional information, informing them about when and where the security check will take place, when they will be flown out etc.
The system will also mean a lot of additional work for BAMF, which will have to examine the documentation and issue admission agreements. The BAMF is already overburdened and in dire need to additional resources. This means that it needs to be beefed up for this specific task too.
As regards security checks, registration, fingerprinting etc., Germany and the other countries should find a system best suited to their needs. The German embassy and consulates in Turkey will not be in a position to process 500,000 people in a year. So Germany & others could send to Turkey, personnel to carry out this task. Doing it bilaterally strengthens the ownership aspect and increases efficiency. Of course, of one of the willing MS is willing to take only a small contingent, it could try to pool resources with another MS, but this should be left to the MS to decide. In the end, it would be German officers checking those going to Germany, Swedish officers checking those going to Sweden etc.)
The participating MS should meet regularly to exchange information and harmonise their approach.
The document states that only refugees who have stayed in Turkey already for between 3 months and 1 year should be eligible for resettlement, in order to avoid a pull factor drawing more refugees to Turkey. This is not enough – refugees will be willing to wait even for 1 year if there is a chance to qualify for resettlement then, so they will be drawn to Turkey. The resettlement should be open to refugees that have been registered in Turkey by the DGMM before a date before the scheme is announced, e.g. 30 December 2015.