The Netherlands runs legal risks by allowing human rights violations to continue at the EU’s external borders. This is what the Migration Advisory Council writes in an advice published on Tuesday evening. As a member state that supplies civil servants or aircraft to EU border guard Frontex, as a financier of reception centers for migrants and as a maker of bilateral agreements with other countries, the Netherlands runs the risk of being held legally liable if human rights are violated, according to the advice.
According to the council, the Netherlands should no longer ask itself ‘what can we get away with’, but ‘what should we do?’ A ‘limit has been reached’, the council writes, with the ‘impermissible’ human rights violations and pushback practices by and from countries such as Greece, Croatia and Hungary. “The Netherlands must not allow the EU’s external borders, which are also our borders, to be guarded in this way. It is unacceptable from a policy and moral point of view and it is contrary to the common European values.”
Also read: In 2021, almost 12,000 pushbacks took place at the European external border
The advisory council, which advises the government and parliament in the Netherlands on migration, makes a distinction between pushbacks – the refusal or return of migrants by the EU without giving them the opportunity to apply for asylum – and pullbacks. That is the repatriation of migrants by countries like Libya, paid for by Europe, to prevent them from reaching the European mainland. Both practices are accompanied by human rights violations.
Member states are not doing enough to combat human rights violations, the Council notes. “The (political) reactions to judgments by European judges are significant, whereby the boundaries of the law are constantly being pushed, or judgments are even ignored.” As an example, the Council gives a ruling by the European Court of Human Rights. After the court banned collective evictions from the EU, politicians turned their attention to pullbacks from the North African coast, which are also illegal.
Srebrenica and Urgenda
The Council also notes that there are often shared responsibilities, which means that it is not clear where control lies. This is the case, for example, when an EU agency coordinates an operation, but a Member State remains responsible for the officials on loan. In such a situation, the council says, both parties point to the other when laws are broken. Even in the case of agreements with non-EU countries such as Turkey and Libya, it is not always clear who is responsible if international obligations are violated, according to the report. According to the Council, this lack of clarity does not mean that the Netherlands can evade its responsibilities. In this regard, the Council mentions ‘Srebrenica’ and ‘Urgenda’ as cases in which the Netherlands was found to be liable, contrary to expectations.
The Council recommends, among other things, that the responsibilities in the implementation of EU asylum and migration policy should be clearly agreed. Compliance with human rights must also become a more central part of policy and victims of human rights violations must have better access to justice. “We have received the advice and are studying it,” said a spokesman for State Secretary Eric van der Burg (Asylum and Migration, VVD) in a response.
A version of this article also appeared in NRC on the morning of January 12, 2022
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