BEIRUT — The Syria Justice and Accountability Center (SJAC) has called on the International Criminal Court (ICC) Prosecutor to investigate Greek authorities and European Border and Coast Guard Agency (Frontex) agents for abuses against asylum-seekers that could amount to crimes against humanity.
On January 28, the Syrian non-governmental organization based in Washington DC submitted a file documenting five years of violations against refugees at the Greek-Turkish border and reception and identification centers in Greece.
Since this submission, Nessma Bashi, Legal Fellow at SJAC, said they have received “hundreds of notifications from victims, mainly Syrian saying: ‘We have witnesses, we have videos, we are willing to testify.’”
Over one million people have journeyed from Turkey to Greece to seek asylum in Europe in the past five years. Greece currently hosts 120,000 asylum-seekers and migrants; 14% of asylum applicants in 2019 were Syrian.
If the ICC’s Office of the Prosecutor decides to launch an investigation, “this will be the first major international criminal case pertaining to a European country,” Bashi said. It will be the first time the “individual criminal responsibility” of Greek and European officials “for crimes against humanity committed against asylum-seekers, refugees and migrants in a European country” is addressed, explained Alexandra Lily Kather, a legal consultant in the field of international justice.
Previously, an ICC submission tried to seek accountability of EU member states for their complicity with human rights violations against migrants in Libya, but the case did not go forward.
What crimes against humanity?
SJAC’s submission has gathered documentation of abuses that could amount to five crimes against humanity under Article 7 of the Rome Statute, the founding treaty of the ICC:
Deportation and forcible transfer of a population:
- Greek and Frontex agents have breached international law by expelling asylum seekers by land and sea without allowing them to apply for asylum.
- The Hellenic Coast Guard sped past refugee boats and towed them from Greek to Turkish waters, putting people at risk and violating international refugee law and the United Nations Convention on the Law of the Sea (UNCLOS).
- Deportation has been done via coercive measures like physical and psychological violence.
- Refugees have been deprived of their fundamental rights in attempts to push them out of Greece. For instance, they have been subjected to inhuman treatment, arbitrary arrests and have been denied their right to a standard of living adequate for their health.
Inhumane acts of the deprivation of humanitarian aid:
- Greece has criminalized humanitarian workers accusing them of human-smuggling charges. For instance, in September 2020, 33 NGOs workers were charged with facilitating the clandestine arrival of migrants to Greek territory.
- At reception and identification centers, inhuman conditions such as inadequate food, unsanitary conditions, or limited medical support or access to NGOs have been documented.
- Frontex and the Hellenic Coast Guard have ignored calls of refugee boats in life-threatening situations.
- At reception and identification centers, some police officers have allegedly purchased minors sold into prostitution.
- At the border, organizations have documented inappropriate touching at searches, where some individuals were forced to strip naked.
- The accounts of physical mistreatment could amount to torture by conduct, and the deplorable living conditions in centers of carceral nature could amount to torture by treatment.
Who might be liable?
If an investigation is launched, the Prosecutor will have to define who can be liable for the abuses perpetrated. But how can individual criminal responsibility be established when the alleged violations stem from a broader national and European policy of sealing EU borders?
Lower-level officials may argue that they are just following orders. However, Bashi pointed out that this “means that there is a chain of command and the higher-ups can be implicated,” adding that these actions are “part of a widespread and systematic attacks.”
Although “Greece has made certain judicial, administrative and policy decisions that led to the situation in camps and the border violence, it should not be the only state held accountable,” Kather argued, “because the entire of the European continent and all the states are contributing to this decision making.” Nonetheless, Kather saw this as an opportunity to end the impunity gap on a “system of endless human rights violations against asylum-seekers, refugees and migrants.”
Why to the ICC?
The International Criminal Court, the world’s first permanent international criminal court, was created in 2002 by the Rome Statute.
The court hears cases referred by the United Nations Security Council (UNSC), a State Party or – as with this case – by organizations. Bashi hopes the ICC’s Prosecutor will answer during 2021. The ICC has territorial jurisdiction on this case because Greece is a State Party and the alleged crimes occurred in Greek territory.
The ICC can prosecute individuals for crimes against humanity if national courts are unable or unwilling to investigate a crime. SJAC argues that neither Greek nor European courts are able to carry out a serious investigation since the alleged crimes are part of a national policy backed by the European Union.
In addition, previous rulings against Greece’s unlawful migration practices by the European Court of Human Rights, the UN Special Rapporteur on the human rights of migrants, and the UNHCR, as well as complaints before the European Commission have been ignored. As such, SJAC considers the ICC as the court of last resort.
“The fact that this happened on European soil, the continent that claims to be a bastion of human rights, is really unjust,” Bashi said. Kather labeled it “a bold strategy” to go after a European country. Still, it is “a necessary development to uphold the credibility of the ICC, that from a Eurocentric perspective, it is often argued that crimes are always happening elsewhere, but never on the European territory,” she said. It is noteworthy that nine of the ten ICC cases relate to African countries.
Where can this lead?
If this case goes ahead, it will “send a very clear sign” to European countries that fail to protect the refugee population from violations that there is “no impunity” and “similar actions could follow,” Kather explained. “Greece is just the first one, but we are hoping that Italy and Spain will learn that these crimes are indeed crimes,” Bashi added.
Traditionally, violations against asylum-seekers have been framed under international human rights law, but Kather points out that there is a shift towards “the realm of international criminal law” due to the “ever mounting violence at the border.”
Last week, members of the European Parliament launched a probe against Frontex for allegations of harassment and unlawful operations to stop people from reaching European borders. Last month, the UN Human Rights Committee found that Italy had failed to protect the right to life for not assisting a vessel in distress in 2013. This decision responds to a complaint by three Syrians and a Palestinian who lost a combined 13 relatives in the sinking that cost 200 lives total.
All these developments “send a broader sign that violence, at the sea or land border, is being monitored and legal actions are being filed,” Kather said.
The ball is in the ICC’s court.