EUobserver opinion: Nato enters the migration control business

European policymakers have been burning the midnight oil looking for ways to keep Syrian and other refugees and migrants from reaching Greece and swelling the ranks of asylum seekers in the European Union.

The Nato operation announced on 11 February may perhaps serve this purpose, but raises the question of whether stemming the flow will, in effect, mean collective expulsions that deny the right to seek asylum.

Even as Nato ships steam into the Aegean Sea, the terms of reference of the operation remain clouded. Nato's Supreme Allied Commander, US airforce general Philip Breedlove, has said he has only now been tasked “to go back and define the mission.”

In the meantime, contradictory statements abound.

Nato secretary general Jens Stoltenberg i claimed: "This is not about stopping or pushing back refugee boats." The UK defence minister Michael Fallon immediately contradicted him: “They will not be taken back to Greece. The aim of the group is to have them taken back to Turkey. That is the crucial difference."

The public presentation of Nato’s anticipated role has mostly been about surveillance aimed at stopping human-smuggling networks. Germany’s defence minister, Ursula von der Leyen, said that migrants would only be picked up as an emergency measure but added that there is a "firm agreement" with Ankara that refugees rescued by Nato ships would "be brought back to Turkey." The Greek defence chief, Panos Kammenos, said the agreement "will finally solve the issue of migration."

So far, joint operations in the Aegean have been coordinated by Frontex, the EU’s external borders control agency, which is limited to Greek territorial waters and must disembark all migrants in Greece. Nato warships are not limited to Greek waters and would be able to return boat people to Turkey, itself a member of Nato, if Turkey allows it.

Introducing Nato into the Euro-Med migration/refugee crisis raises the questions: 1) will interdicted migrants and asylum seekers be accepted back by Turkey, and, if so, 2) is this acceptable as a matter of human rights.

On the first question, notwithstanding the German defence minister’s remark about a “firm agreement” with Ankara to take back migrants, Turkey has been publicly silent. In fact, it hasn’t said anything about the Nato operation, although it is reported to have joined Germany and Greece in asking for it.

Clearly, the migration crisis has touched off intense discussions between the EU and Turkey, with Turkey very much in the driver’s seat. On 11 February, president Recep Tayyip Erdogan bemoaned the low number of refugees other countries have accepted, saying, “Excuse me but we do not have the word ‘fool’ written on our foreheads. We will be patient up to a point but will do what we have to do. Don’t think that planes and buses are for nothing.”

On the second question, If Nato cooperates with Turkey in preventing asylum seekers from leaving Turkish territorial waters and in bringing asylum seekers and migrants back to the Turkish shore, these would not be “returns” or “expulsions” since the boats in question would never have left Turkey. Although such an operation might not technically violate the EU Charter, the European Human Rights Convention, and 1951 Refugee Convention rules against refoulement—the forced return of refugees to places where they would risk danger or abuse—and collective expulsion, it would violate the principles underlying these precepts.

Returning the passenger-laden rubber dinghies to Turkey would run the subsequent risk of refugees being forcibly returned to Syria, Iraq, or Afghanistan. Turkey retains a geographical limitation on its accession to the 1951 Refugee Convention that excludes all non-Europeans from status as refugees.

While the risk of refoulement on that basis may seem a bit abstract, on the very day Nato was announcing its operation, Turkey was keeping its border firmly closed to thousands of Syrian asylum seekers who were fleeing Russian airstrikes and Syrian government military advances in Aleppo.

This unequivocally demonstrates that Turkey does not respect the principle of non-refoulement as the legal obligation it is. Instead of letting asylum seekers escape across its border, Turkey trucked supplies to the Syrian side of the closed Bab al-Salama crossing point to bolster its establishment of a so-called safe zone in Syria.

This is not just about keeping out new arrivals; Erdogan has said that “establishing a safe zone constitutes the basis of 1.7 million Syrian refugees' return." The history of such areas—think Srebrenica—has shown them to be more effective at containing refugee flows and in opening the way for disaster than in providing real protection to civilians.

As general Breedlove defines the Nato mission, he should put aside technicalities about territorial waters and harness Nato’s considerable assets for the task of saving lives at sea, preventing predatory victimization of asylum seekers and migrants by criminals, and facilitating the right to seek asylum by bringing asylum seekers safely to Greece.

Instead of desperately trying to stem the flow, the EU should be taking concrete steps to manage the flow, crucially through: working with Greece to open official border crossings on the Greek land borders where asylum seekers could be screened and permitted to enter; by ensuring efficient relocation of asylum seekers from countries of first entry to other member states; and by vastly expanding the orderly resettlement of refugees from Turkey and other countries of first refuge into the EU.

Bill Frelick is the director of the Human Rights Watch Refugee Rights Program