Faced with People Clinging to a Fence, Europe Loses its Conscience

This blog post was written by Adam Weiss, member of PICUM’s Board.

Koramatsu v United States was the worst judgment the US Supreme Court delivered in the 20th century. In 1944 the court ruled that America’s federal government did not violate the US Constitution when it detained over 100,000 American citizens in camps along the West Coast on the basis of their race. They were of Japanese origin. Three judges (of nine) disagreed. Memorialising their disgust at the policy’s racism and at their colleagues’ acquiescence may have saved the Supreme Court’s reputation. One of the dissenters – Robert Jackson (who went on to prosecute war crimes at Nuremberg) – acknowledged that there was nothing a court could do to stop a military order during the panic of war. “But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order… the principle then lies about like a loaded weapon”.

I hope a hundred years from now people will be able to say that N.D. and N.T. v Spain was the worst judgment the European Court of Human Rights delivered in the 21st century; I hate to imagine that this is just a start. The Grand Chamber consists of 17 judges. They unanimously found that two men (one from Côte d’Ivoire, the other from Mali) who climbed over the very high border fences separating Morocco from the Spanish enclave of Melilla on the North Coast of Africa, were not victims of a human rights violation; the Spanish authorities had arrested them and, without giving them the chance to identify themselves, explain what they were doing or see a doctor, handed them over to the Moroccan authorities. In Spain they call it a “hot return” (una devolución en caliente).

If a person trapped behind a fence in a concentration camp was the defining image of human rights violations in the 20th century, a person clinging to a fence keeping her out of a place of prosperity and safety, may become the defining human rights image of the 21st.

The 17 judges unanimously reversed a unanimous finding by a Chamber of seven judges that there had been a human rights violation. (Such a unanimous reversal of a unanimous Chamber ruling is extremely unusual.) The Chamber said that the men had a right to some individualised consideration of their situation before they were expelled. This was in line with previous European Court judgments about intercepting migrants at sea or arresting them at airports and returning them without any consideration of their situation.

In the Grand Chamber, there was no disagreement, no reputation-saving dissenting opinion. Indeed, a few judges moaned that the Court should have gone further: either finding that the relevant legal concept – the prohibition on collective expulsions – was not applicable at all; or that people from Africa should not have been allowed to waste the time and resources of “the community of free citizens living in the Council of Europe member States” by getting before the European Court’s Grand Chamber. Africa, after all, has its own regional human rights system and mechanisms. (Should we rename the European Convention on Human Rights the Convention on European Humans’ Rights?)

Seventeen people in a closed-door meeting agreeing to overturn their seven colleagues’ sensible judgment must have been a scene worthy of Twelve Angry Men. But that American play was about one white man convincing eleven others to dismiss their prejudices in order to do justice. It feels like something quite different happened here. The judges were at pains to emphasise the men’s conduct – the fact that they were part of a group of several hundred people “taking advantage of the group’s large numbers and using force”. It seems more like the judges were reacting to the image of several hundred sub-Saharan Africans climbing a fence into Europe than applying their own Court’s case law or the clear human rights prohibition on collective expulsions.

The Grand Chamber relied on the nonsense argument that these men could have used regular channels to enter Spain. They could have claimed asylum at the ordinary border-crossing point or at any Spanish embassy or consulate, the Court would have us believe. Or they could have got “special working visas”. The idea that anyone anywhere in the world has straightforward access to a residence permit in an EU Member State for work or asylum is laughable. The idea that these men would have climbed two three-metre high fences topped with razor wire when they could have knocked at the door is insulting. I only hope someone has the resources to support a mass campaign of asylum claims or work permit applications at Spanish embassies worldwide and at Melilla’s border-crossing, but it will come too late. Judicial opinion has rationalised the policy of hot returns; or, more precisely, the Grand Chamber has rationalised the European Convention on Human Rights as allowing border guards to arrest people and hand them over without even asking why they are there or what they are going back to.

When it comes to the situation of undocumented migrants, there was no particularly good outcome for this case anyway. The best-case scenario – finding a violation (as the Chamber did) – meant finding that these men should have had a chance to make some kind of claim for international protection. But the international protection framework was not what they needed. One of them eventually claimed asylum in Spain and was refused; the other never did. It seems what they (like so many others) really needed was a legal pathway to migration. There was no way the Court would touch that.

And why is it so easy to ignore the most bizarre aspect of this case: that Spain (and so the EU) has a land border in mainland Africa. Morocco’s long-standing grievance that Melilla and Ceuta, another Spanish enclave in Africa, are unjust remnants of Spain’s colonial past are convincing. Spain can keep strategic territory in Africa, fence it, and keep Africans out, and any argument about the fairness of that situation will be labelled radical or academic, and laughed out of court.

The international-law framework was no match for the needs of undocumented migrants in the mid-20th century. As new conflicts, ecological disaster, and the economic devastation they bring send people on the move, the same is likely to be true by the middle of this century. The European human rights system that emerged from World War II is not capable of delivering justice in an unequal world created by colonialism, contaminated with discrimination, and getting hotter, more polluted and – on the wrong side of those fences – more crowded.

But even within its limited framework to do right, the Grand Chamber in this case was wrong.

The European Court of Human Rights calls itself “the conscience of Europe”. Many people in Europe and North America are now living in countries governed by men without a conscience. One of the things they like to do is build walls and fences along their countries’ borders. There is nothing European Court judges can do to stop border guards pulling people off those fences and pushing them back to the other side without a word. But they should say it is unconscionable.

Instead, they left Europe’s politicians a principle that lies about like a loaded weapon. It is easy to do bad things under pressure. And even easier to have no conscience to bother you about it afterwards.

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