Principle of non-refoulement

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The principle of non-refoulement , also known as the non-refoulement principle or (from the French non-refoulement ) the non-refoulement requirement or refoulement prohibition , is a principle of international law that prohibits the return of people to states where they are at risk of torture or other serious human rights violations . It is recognized as customary international law as a basic principle of the humanitarian treatment of refugees .

Geneva Refugee Convention and UN Convention against Torture

The principle is anchored in Article 33 of the Geneva Refugee Convention of July 1951, supplemented by the New York Protocol of January 31, 1967:

  1. Neither of the Contracting States will in any way deport or reject a refugee across the borders of areas where his life or freedom would be threatened because of his race, religion, nationality, membership of a particular social group or because of his political beliefs.
  2. However, a refugee who for serious reasons is to be regarded as a danger to the security of the country in which he is located or who represents a danger to the general public of that state because he has committed a crime cannot invoke the benefit of this provision or has been convicted of a particularly serious offense.

Article 3 of the UN Convention against Torture also prohibits refoulement:

  1. A state party may not deport, deport or extradite a person to another state if there are reasonable grounds to believe that they would be at risk of torture there.
  2. In determining whether such grounds exist, the competent authorities shall take into account all relevant considerations, including the fact that the State concerned has a continuing practice of gross, flagrant or mass violations of human rights.

Regional agreements

European Convention on Human Rights

Article 3 of the European Convention on Human Rights expresses the prohibition of refoulement in absolute terms and does not allow any exceptions and results from:

Nobody should be subjected to torture or inhuman or degrading punishment or treatment.

This significantly stricter provision also no longer allows convicted criminals to be expelled to unsafe countries of origin in Europe, which is also in line with the sentencing country's claim to punishment.

African Refugee Convention

The Refugee Convention of the African Union of 1969 contains in Art. 2 Para. 3 a refoulement prohibition with a binding character. The term refugee is broader than in the Geneva Refugee Convention, refoulement at the border expressly falls under the ban on refoulement and there are no comprehensive exception clauses. Refugees who have committed a serious crime in the country of refuge remain protected.

American Convention on Human Rights

The American Convention on Human Rights of 1969 stipulates in Art. 22 No. 8 a comprehensive ban on refoulement. Foreigners may not be deported or sent back to a country if their right to life or personal freedom threatens to be violated there. It is left open whether the ban on refoulement also applies to rejections at the border. There is no exception rule as in Art. 33, Paragraph 2 of the Geneva Refugee Convention.

EU secondary law

In European secondary law the principle u. a. confirmed in Art. 5 ( principle of non-refoulement, best interests of the child, family ties and state of health ) of the Return Directive and in Art. 21 ( Protection against refoulement ) of the Qualification Directive .

The 2010 Frontex guidelines referred to the principle of non-refoulement in point 1.2; However, the decision on these guidelines was annulled by the European Court of Justice in September 2012 because it changed both essential provisions of the Schengen Borders Code and the content of the Frontex Regulation, but came about without the necessary involvement of the EU Parliament.

The external sea border ordinance (EU 656/2014) of July 2014 regulates the international legal obligation to rescue at sea and the refoulement prohibition in border surveillance operations under operational Frontex coordination.

The principle of non-refoulement is violated if people are expelled, deported or turned back at the border without a case-by-case examination .

Rejection on the high seas

European Union

However, it was unclear how people trying to get to Europe by sea should be dealt with in the course of interception, control or rescue measures, as European secondary law did not contain any regulations.

In the case of Hirsi Jamaa and others v. Italy , the European Court of Human Rights then ruled in a landmark decision in 2012 that

  • in accordance with Art. 3 of the European Convention on Human Rights ( ECHR ), the returning state must prevent abuse in the destination country,
  • accepting a further deportation to the torturing country of origin violates Art. 3 ECHR,
  • Collective expulsions also on the high seas and of boat refugees violate Article 4 of Protocol 4 of the ECHR and
  • boat refugees also have legal remedies against their deportation in accordance with Art. 13 ECHR.

The judgment not only affects the condemned Italy, but also the way other European countries deal with refugees and migrants.

United States

Since 1993, asylum seekers found in the open sea by US Coast Guard ships have been denied entry to the United States. This was preceded by a growing migration stream since 1981, through which 21,800 Haitians came to the USA, but only 6 were entitled to asylum. The United States Supreme Court ruled in Sale, Acting Commissioner, Immigration and Naturalization Service, et al., Petitioners v. Haitian Centers Council Inc. et al. the practice. Accordingly, the principle of non-refoulement applies only to American territory, but not to the high seas.

Violations

According to a 2013 report by Pro Asyl , Frontex took part in push-back operations when refugee boats were being pushed back into Turkey.

According to Amnesty International, in 2015 at least 30 countries, including Australia, the Netherlands, Russia and Saudi Arabia, violated the Geneva Convention on Refugees by being sent back to potentially unsafe countries.

The European Court of Human Rights sentenced Spain in February 2018 for collective deportation of refugees. Two men concerned had complained because they had been picked up by the Spanish Guardia Civil and immediately pushed back across the Spanish-Moroccan border. The ruling is considered to set a precedent against the Spanish practice of systematic push-backs in the enclaves of Ceuta and Melilla . Russia also circumvented its obligations in this regard in several cases. On February 13, 2020, the complaint of two Africans about their rejection by Spain, which they had brought before the Court with the help of the European Center for Constitutional and Human Rights , was dismissed because, in the opinion of the court, the men had the opportunity to apply for protection to be provided at the designated locations. Instead, they climbed the border fence to Melilla in August 2014. Your subsequent deportation through Spain without prior individual examination is therefore a consequence of your own actions. Human rights organizations feared the decision could be used as a justification for further rejections at other EU borders.

See also

literature

Individual evidence

  1. ↑ Prohibition of Expulsion and Rejection , Jurion, accessed October 14, 2017
  2. ↑ Convention against Torture , Institute for Human Rights, accessed October 17, 2017
  3. ↑ International and human rights requirements for the deportation of refugees who have committed criminal offenses . Scientific service of the Bundestag. P. 10 f.
  4. ↑ Prohibition of Expulsion and Rejection , dejure.org, accessed October 17, 2017
  5. ↑ International and human rights requirements for the deportation of refugees who have committed criminal offenses . Scientific service of the Bundestag. P. 11
  6. ↑ Bianca Hofmann: Fundamentals and effects of the international refoulement ban . P. 16
  7. ↑ Bianca Hofmann: Fundamentals and effects of the international refoulement ban . P. 17
  8. ↑ Decision of the Council of April 26, 2010 supplementing the Schengen Borders Code with regard to the surveillance of the external sea borders as part of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (2010/252 / EU) (PDF ) at EUR-Lex
  9. ^ Mechthild Baumann: Frontex - questions and answers . Federal Agency for Civic Education, June 15, 2016, accessed October 17, 2017
  10. ↑ Silja Klepp : Europe between border control and refugee protection: An ethnography of the sea border on the Mediterranean . transcript Verlag, 2011, ISBN 978-3-8376-1722-1 , pp. 66 ff . ( transcript-verlag.de [PDF]).
  11. ↑ EU / Italy: Strengthening refugee protection on the high seas . Federal Agency for Civic Education, March 1, 2012, accessed October 5, 2017
  12. ^ Anne T. Gallagher, Fiona David, The International Law of Migrant Smuggling, Cambridge University Press, 2014, ISBN 978-1-107-01592-0 , p. 100
  13. ^ Mechthild Baumann: Frontex - questions and answers . Federal Agency for Civic Education, June 15, 2016, accessed October 17, 2017
  14. ↑ Australia among 30 countries illegally forcing return of refugees, Amnesty says . Guardian February 24, 2016, accessed October 16, 2017
  15. ↑ Wolfgang Kaleck, Vera Wriedt: Violence in the border area . Time February 21, 2018, accessed June 9, 2018
  16. ↑ The game without "Rule 39" , Novaya Gazeta, September 16, 2018
  17. ↑ Sam Jones: "European court under fire for backing Spain's express deportations" The Guardian of February 12, 2020