Refugees in Europe from an International Criminal Law Perspective
- Jens Dieckmann and Teresa Quadt
- Jul 1, 2024
- 30 min read
Updated: Jul 6
This time, it feels like it is finally happening—until Abu Salah comes home with the dreaded news: ‘Wait another two days until the strong winds die down’.
Roliana cannot understand. ‘Daddy, why don’t we just take the airplane?’ she asks.[1]
I. Introduction
Seeking safety and entry into the territory of a state to initiate an asylum procedure, is often a life-risking and traumatising endeavour. Yet, thus far, the state parties to the 1951 Convention Relating to the Status of Refugees (1951 Geneva Convention) including all member states of the European Union (EU) refuse to offer accessible safe passage.[2] The lack of sufficient humanitarian visas exacerbates the situation and forces refugees on perilous journeys across deserts, the sea, and violent borders.[3] Five-year old Roliana and her family fled from Aleppo, in 2012.[4] Part of the city was captured by rebels; regime forces subsequently dropped barrel bombs on densely populated urban areas.[5] Due to the escalating conflict, the family moved up north, towards Afrin, but the war caused water and electricity shortages, dysfunctional schools, and a lack of work.[6] The family decided to cross into Turkey, and eventually to Greece.
This is not a single story, the Syrian conflict has displaced over 12 million.[7] While the forced movement of refugees is one aspect of war and conflict, no conflict is waged without grave breaches of the laws of war, without violence against civilians. The barrel bomb attack on Aleppo by the Syrian regime as well as the indiscriminate shelling by Opposition groups as a response most likely constitute war crimes.[8] Those fleeing conflict zones and wars such as in Syria, like the family of Roliana, but also in Afghanistan, Eritrea, Ukraine, or Sudan, have often experienced these unimaginable crimes. They may have been victims and/or witnesses of war crimes, crimes against humanity or even genocide.
However, instead of issuing visas and thereby opening a safe route by air, the EU imposes sanctions on carriers such as airlines which forces people on dangerous journeys.[9] At Europe’s land borders, the search for a safe haven is answered with entry prevention measures and violence, a systematic practice depriving refugees of their right to seek asylum and freedom from harm that may itself amount to crimes against humanity.[10] Having fled the crimes in their home countries, asylum-seekers are likely to become victims of international crimes in transit again.
Disconnected Realities
And yet, even upon arrival in states that provide access to regular asylum procedures, this essential part of a refugee’s experience—the manifest violations of human rights relevant under international criminal law (ICL) before and during the flight—remains outside the scope of the asylum process. The asylum procedure only aims to determine if the applicants meet the legal criteria according to the 1951 Geneva Convention. If so, beneficiaries of international protection are granted a respective residence permit as well as the 1951 Convention travel document.[11] The individual interest of many refugees to seek truth and justice for the harm suffered remains unaddressed in the asylum context.[12] It is only recognised in international treaties dealing with severe harm[13] and under the rules of international criminal law, above all, the Rome Statute of the International Criminal Court (ICC).[14]
