XI. Greece's Nonrefoulement Obligations

The principle of nonrefoulement in international law forbids the expulsion or return of a person to a place where he or she would face persecution, torture or inhuman or degrading treatment.  This is a non-derogable principle of international law and must be strictly observed.  Both international refugee law and human rights law carry obligations of nonrefoulement.  The obligations trigger under different circumstances, but brought together amount to the above principle. 

Nonrefoulement Under Refugee Law

The 1951 Refugee Convention prohibits the return of refugees "in any manner whatsoever" to places where their life or freedom would be threatened. [145]   Greece is bound to the principle of nonrefoulement through its ratification of both the 1951 Refugee Convention and its 1967 Protocol. [146] Further, Greek domestic law, incorporating Greece's international obligations as well as transposing the asylum directives of the European Community, additionally and explicitly binds Greece to the principle of nonrefoulement. [147]  

As this report has shown, official deportations are the tip of the iceberg of forcible returns from Greece to Turkey.  Most take place under cover of darkness across the Evros River or off the Turkish coast.  Pushbacks at sea or on the border do not nullify the nonrefoulement obligation.  As early as 1977, UNHCR's Executive Committee issued a formal conclusion that "[r]eaffirms the fundamental importance of the observance of the principle of nonrefoulement-both at the border and within the territory of a State…"[148](Emphasis added.)

The nonrefoulement obligation applies not only to direct return into the hands of persecutors and torturers, but to indirect returns as well.  That is, states cannot absolve themselves of responsibility by sending a refugee to a non-persecutory state that in turn sends them to a third persecutory state, as explained by the U.K. House of Lords:

Article 33 [the nonrefoulement provision of the Refugee Convention] can be breached indirectly as well as directly.  Thus for a country to return a refugee to a state from which he will then be returned by the government of that state to a territory where his life or freedom will be threatened will be as much a breach of Article 33 as if the first country had itself returned him there direct.[149]

The only nationalities that Turkey has been willing to accept under the Greece-Turkey readmission agreement have been Iranians and Iraqis.  A 2004 study of Turkish immigration practices found that every one of the 1,006 people readmitted to Turkey from Greece per this agreement was an Iranian or an Iraqi, and all were returned to their home country. It found, "These illegal migrants, 270 Iranians and 736 Iraqis, were handed over to the Turkish authorities between October 2002 and January 2004.  They were subsequently repatriated to Iran and Iraq." [150]  

Turkey is still forcibly returning Iraqis who are caught at the Greek border by bussing them to Iraq.  UNHCR reported that on April 23, 2008 Turkey deported 42 Iraqi nationals to Iraq who had been caught at the Greek border.  As UNHCR reported:

The Turkish police then took the 18, which included five Iranian refugees recognized by UNHCR, to a place where the river separates the two countries, and forced them to swim across.  According to witnesses interviewed by UNHCR, four persons, including a refugee from Iran, were swept away by the strong river current and drowned.[151]

This incident shows that Turkey-like Greece-is willing to engage in surreptitious and dangerous expulsions across a river border.  It also shows that Turkey attempted to deport UNHCR-recognized refugees despite UNHCR's interventions on their behalf.

Furthermore, this incident shows that Turkey is still deporting Iraqis to Iraq despite UNHCR's return advisory that it does not consider it safe for Iraqis to return to Central and South Iraq at this time.[152]   Turkey's practice, therefore, of simply deporting Iraqis who have been sent back from Greece without giving them an opportunity to have independent legal counseling or a thorough and proper individualized analysis of whether they are likely to face persecution, torture or serious harm in Iraq, constitutes refoulement. 

The testimonies gathered by Human Rights Watch show that the Greek authorities are systematically and summarily expelling migrants to Turkey without adequately assessing their need for protection.  The risk of refoulement is foreseeable in that Greece is forcibly returning Iranians and Iraqis who may, in fact, be refugees to Turkey, and Turkey, in turn, is summarily sending these same people back to Iraq and Iran without giving them an opportunity to seek protection. Therefore, Greece's expulsion of Iraqis to Turkey is an indirect breach of its international obligations and a violation of its own law.

Principle of Nonrefoulement in Human Rights Law

Under general international human rights law, states "must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement."[153] 

Greece is a party to both the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (CAT) carrying nonrefoulement obligations.  The CAT obligation is narrower than the ICCPR in that it applies properly to where there is a risk of "torture" as defined in the Convention, [154] and not to "cruel, inhuman or degrading treatment or punishment".

Regionally, Greece is bound by the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).  Article 3 of the ECHR prohibits "torture or inhuman or degrading treatment" – a different formulation than either the ICCPR or the CAT.  The European Court of Human Rights jurisprudence is clear that this carries a nonrefoulement obligation not to expose an individual to a "real risk" of that treatment. [155]  

As documented in this report, Turkey's treatment of migrants returned from Greece in the Tunca detention center at Edirne is inhuman and degrading:  Conditions of detention are appallingly poor, particularly with respect to overcrowding and sanitation; the duration of detention is indefinite; and there are reports of guards mistreating detainees.  Although Human Rights Watch received reports of inhuman and degrading treatment at other detention facilities in Turkey, we cannot definitively conclude that those conditions amount to such treatment as we did not visit other facilities.  However, the use of indefinite administrative detention to coerce migrants to self deport, combined with these other factors, suggests that Turkey's breach of its obligations is wider than the Tunca detention facility at Edirne.

In any case, Greece remains in breach of its obligations under the ECHR in that there is a real risk that the Turkish authorities will detain returned migrants at Tunca.  This real risk applies particularly to those migrants returned at the Evros River.  The risk may also exist for migrants pushed back at sea if the conditions at other Turkish migration detention centers prove to be as degrading and inhuman as the conditions Human Rights Watch found at Edirne.