later this week, the interior ministers of the German states will be discussing, and voting on, a proposal to be begin forcibly repatriating Syrian refugees once their asylum status lapses — as early as next June. If they agree, it would then be up to the federal interior ministry to decide whether parts of Syria are safe for return. That is considered unlikely, at least for the moment.
But as Syrian President Bashar al-Assad mops up remaining opposition to his rule, and as the threat from the Islamic State melts away, Germany and other European states will have to judge — far sooner than they expected to — whether to send Syrians back to their devastated homeland, or to some portion of it. Given the political pressures, there is no reason to assume that the decision will be based on the best interests of the refugees themselves.
The obligation of states is spelled out clearly in the 1951 U.N. Refugee Convention, which stipulates that an individual may not be returned if “his life or freedom may be threatened on account of his race, religion, nationality, membership of a particular social group or opinion.” Guidelines issued by the U.N. High Commission on Refugees dictate that, once granted asylum, refugees may be forcibly returned only when conditions in their home have changed fundamentally and enduringly, in such a way as to ensure a guarantee of protection to formerly persecuted people.
In practice, that standard has been routinely violated. In December 1996, for example, Tanzania gave 500,000 Rwandan Hutu refugees one month to go home, though revenge killings of Hutus were still common. In 2015, Kenya announced that it would close the giant Dadaab refugee camp and expel the 463,000 Somali refugees; they were stopped only after an international outcry. In 2016, Iran forcibly returned 410,000 Afghans, while Pakistan sent back another 253,000.
Those are, of course, poor countries. The overwhelming fraction of refugees wind up in poor neighbors of the poor countries they flee. When the refugees are felt, fairly or not, to constitute an intolerable burden, they are at risk of expulsion, no matter the conditions at home.
European countries have never engaged in mass forcible expulsion. Then again, they’ve never had an influx like 2015. And they have begun to practice retail, if not wholesale, repatriation. In the fall of 2016, the European Union extracted from Afghanistan an agreement to accept and resettle — in “a smooth, dignified and orderly” manner — migrants who had made it to Europe. About 10,000 returned in 2016. Of those, 6,900 were deemed “voluntary,” though this often simply means that migrants have chosen to accept modest resettlement assistance rather than risk forcible return.
Of course, the violence and chaos that provoked people to flee Afghanistan has only deepened in recent years. The EU has nevertheless invoked the doctrine of the “internal flight alternative,” which dictates that while refugees may not be able to return to their actual home, they can be sent back to places in the country considered safe. Those places are considered to include Kabul, currently the most violent place in Afghanistan. News accounts have highlighted the stories of children returned to strange places and refugees killed in bombing attacks and the like. The “Joint Way Forward,” as the pact is called, appears to be a giant exercise in hypocrisy. Indeed, German pilots are said to have refused on over 220 occasions this year to fly asylum-seekers back to Afghanistan.
Syria is going to present a much more tempting target for repatriation than Afghanistan.
Germany has some 200,000 Afghan asylum-seekers, but about 600,000 Syrians. And while Afghanistan’s civil war only grows worse, Bashar al-Assad is likely to regain his grip on most or even all of the country after waging a pitiless war that has led to around 400,000 deaths. The kinds of fundamental changes across the country required by the UNHCR for safe return may not occur for a generation, but European states looking to reduce political pressure caused by anger over refugees and migrants may treat the end of widespread hostilities as a good enough standard.
Many Syrian refugees have received asylum for one year, to be renewed as needed. Some of Germany’s provincial interior ministers would like to shorten the period to six months in order to permit expulsions starting in June. They would start with those accused of crimes in Europe, and then perhaps begin deporting broader groups. Like Afghans, Syrians would be sent to zones deemed safe, or to “de-escalation zones” like Idlib province governed by fragile cease-fire agreements.
Would it be acceptable to compel, say, families who have fled Aleppo to return to a home that is flattened but no longer violent? The answer is surely no, both for legal and for moral reasons. As Bill Frelick, the director of refugee rights at Human Rights Watch points out, while in a hearing for refugee status the burden of proof lies with the asylum-seeker, forcible repatriation shifts the burden to the state in question. Have the conditions that compelled flight changed fundamentally and enduringly? In Syria, the threat comes from the Assad regime itself. Even though barrel bombs have stopped falling on Aleppo, returnees would plainly be at risk of persecution and death from the regime and its militias. And no part of Syria can be deemed safe so long as Assad aspires to regain total control. A recent report by the Migration Policy Institute sensibly calls for an end to forced repatriation to all countries in conflict.
The deus ex machina of all refugee situations is voluntary return. Normally one knows that return is safe when refugees go back on their own — at first tentatively and then, once the news spreads, in a flood. But that’s true only when refugees are perched across the border. Most Afghans returned home from Pakistan when the Taliban was routed; few of the Vietnamese boat people in the West went back when conditions improved. In the ensuing years, they had stitched their lives into a new and generally rewarding culture. One can imagine a situation some number of years from now — who knows how many — in which Syrian refugees in Lebanon, Jordan, and Turkey start to return, but those in Europe stay put. And they will stay put. The 2015 refugees are there to stay, unless driven out.
Pain is always the best teacher, and there is a painful lesson here for Europe. The original sin in which the migration crisis was born, as I pointed out last year in Foreign Policy, was the failure to take decisive action while the storm was still on the horizon. If the EU had taken collective action in 2014, it could have avoided the chaotic human flood that in turn provoked a political backlash. If the West, more broadly — and here I include the United States — had had the sense to fully fund refugee efforts in the neighboring countries, far fewer people would have sought asylum in Europe. A humanitarian catastrophe in Syria need not have produced a political catastrophe in Europe.
Can Europe learn this lesson? At the moment, perhaps not. The refugee crisis is only the most dramatic manifestation of the immense phenomenon of illegal, uncontrolled migration to Europe. The millions on the move pose a graver challenge to Europe’s future than illiberal democracy in the east or financial profligacy in the south — or even Russia, for that matter. The EU needs a coherent policy on refugees and on migration. But it’s precisely the nationalist backlash, of which the debate in Germany over forcing the Syrians back home is only a single small example, that has precluded the strengthening of European institutions desperately needed to deal with Europe-wide problems.
Europe has gotten itself into a pickle. But it must not take out its failure on the migrants.
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