THE BLOG
03/09/2016 09:15 pm ET Updated Mar 10, 2017

Refoulement Violates International Law

Germany's Chancellor Angela Merkel heralded the European Union's deal with Turkey as a "breakthrough." The deal envisions returning migrants and refugees from Greece to Turkey. For every Syrian sent back to Turkey, the EU will resettle one Syrian refugee from Turkey. The deal is ethically, politically, and practically flawed. Moreover, it violates international law.

"Refoulement" (forcible return) is forbidden by international law. Persons who cross an international border have the right to protection. They cannot be returned against their will. Victims cannot be returned to a country from which they fled.

The principle of non-refoulement is inspired by the collective failure of European countries during World War II to provide sanctuary to refugees fleeing Nazi atrocities. Non-refoulemnent was enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status, and Article 3 of the 1984 Convention against Torture. Article 33 affirms: "No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened..."

Filippo Grandi, the United Nations High Commissioner for Refugees (UNHCR), reacted skeptically to the EU-Turkey deal, "[I am] concerned about any agreement that involves blanket return of all individuals from one country to another without sufficiently spelled-out refugee protection safeguards." He demands legal safeguards for any mechanism transferring responsibility for asylum claims.

Grandi welcomed the EU's financial contribution to support Turkey and refugee communities in Turkey. However, Turkey is an unprincipled and opportunistic partner.

President Recep Tayyip Erdogan laments hosting the growing number of migrants and refugees. He has repeatedly threated to expel them. Erdogan said, "Let the United Nations advise other countries to accept the refugees." The generic return of refugees to Turkey is a step towards their potential repatriation to Syria or Iraq.

The European Council is under Germany's sway. It falls to the European Parliament (EP) to provide an opinion on the legality of refoulement. The EP Committee on Civil Liberties, Justice and Home Affairs should offer an opinion on refoulement. In addition, the Committee should formally ask the Legal Counsel of the European Parliament to refer the matter to the European Court of Justice.

Merkel talks about a European consensus, but the European Council is deeply divided over the proposed EU-Turkey deal. The deal is actually a "pre-agreement" because some governments did not actually agree. The European Council will meet for further deliberations on March 17-18.

Opponents are galvanized by Merkel's heavy-handed tactics. Additionally, German voters are skittish. Germany's handling of the migrant and refugee crisis may backfire and cost her Christian Democratic Union in state elections on March 13 in Saxony-Anhalt, Baden-Württemberg and Rheinland-Palatinate.

EU Member States are concerned about Merkel's collusion with Turkey. They resent that Turkey has used the crisis to extort financial gains and EU privileges.

An EP member cynically likened the EU-Turkey deal to Donald Trump's proposal that Mexico solve the immigration crisis for America, and pay for the wall.

While Merkel deserves credit for taking in one million migrants and refugees, she and European leaders must remember the lessons of World War II. Appeasement does not work. Refoulement is an illegal and unethical solution to Europe's refugee crisis.

Mr. Phillips is Director of the Program on Peace-building and Rights at Columbia University's Institute for the Study of Human Rights.