Merkel in Ankara – Fences that kill – A safe third country

18 October 2015
Refugees in Kilis Asylum seekers in Berlin

Turkey and Germany: refugees in Kilis – Asylum seekers in Berlin


Two new ESI papers:

Turkey as a "safe third country" for Greece (17 October)
The 2015 Refugee Crisis through statistics (17 October)


Dear friends,

Today Angela Merkel travels to Ankara for the most important foreign visit she has made since becoming German Chancellor in 2005.

Expectations are not running high. Turkey is more deeply divided politically than at any time since the late 1990s. Turkish society is in shock following the worst terrorist attack in decades. It is in the middle of a polarising election campaign and has a caretaker government in place. It finds itself in the most dangerous geopolitical position since the end of the Cold War, with a nuclear power, Russia, fighting both to the north (Ukraine) and the south (Syria and Iraq). Turkey is at war with Kurdish forces and ISIS is bombed from Turkish soil and carries out terrorist attacks in Turkey.   

At the same time, Angela Merkel's visit offers the single best – and perhaps only – opportunity to address the biggest mass migration in Europe since World War Two. The unprecedented flow of people is the result of the Syrian war, the largest humanitarian crisis in the world today. It has also turned into the biggest crisis of Merkel's chancellorship since she declared that under her leadership Germany would be hospitable to refugees in need of protection.

According to UNHCR figures, Turkey hosted more refugees in 2014 than any other country in the world. This year there are more refugees heading to Turkey; and Germany may end up receiving half of all asylum applications made around the world. When it comes to offering protection, both countries stand out as doing far more than their share.

Germany and Turkey also share a capacity to bring the migration crisis back under control today. If Germany and Turkey cannot reach a deal, there are no other solutions in sight, and the mass migration of Syrians and others into the EU will continue.


How not to talk to Turkey

Syrian refugees

In recent weeks, EU institutions have tried to respond to this crisis. They have failed. Levels of trust between Turkey and the EU have been low for years. Recent EU tactics have not helped.

Senior Turkish officials describe current talks as a game of poker: "In poker, it matters what the first hand is that you show; it better be serious." In this case, the EU's first, second and third hands were far from serious. The most concrete proposal in the Action Plan the EU presented to Turkish president Erdogan in Brussels in early October – a promise to "mobilise up to € 1 billion" in support for Turkey – involved relabelling pre-accession funds that had already been committed. As prime minister Davutoglu told a European counterpart recently, to treat this as a generous EU gesture "is an insult to our intelligence."

Anybody familiar with the tortuous history of EU-Turkey talks on visa liberalisation and the readmission of people also notices that the Action Plan contains nothing new. There are no new promises, commitments or incentives.

Leaks to the press that there might be billions in additional funds for Turkey, "accelerated visa facilitation" (a red-flag concept in Ankara, and different from the visa liberalisation that the Western Balkan countries and Moldova received), or that six accession negotiation chapters might be opened (or not, depending on Cyprus) cannot hide the fact that the EU and Turkey are no closer to a joint strategy on how to deal with the refugee crises today than they were one month, or three years, ago.

Currently the EU pretends to offer Turkey something and Turkey pretends that it will make an additional effort to stop refugees leaving. Neither side is serious. The EU and Turkey act like an old couple, condemned to stay together, but without love or respect left. Divorce is not an option; no family therapist is available; and every attempt to 'agree' on something confirms, in its frustrating failure, what both think about each other. Only this time the house is burning.


A serious deal…

A serious deal is one that controls movement from the Turkish mainland to Greek islands in a way that is in compliance with EU, Greek and Turkish laws; that is technically workable; and that is politically acceptable to Turkish leaders and the Turkish public. A serious deal is one that addresses these three issues: laws, practicalities and the politics of readmission.

…is lawful,

First, international law: a serious deal is one that does not require throwing overboard EU, Greek or Turkish law.

Greece cannot stop refugees from crossing the Aegean Sea, however many boats it sends, however many coast guards from Frontex come to help. The heart of international law on refugees is Article 33 of the Refugee Convention:

"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

It is illegal to push back refugee boats. It would be a crime not to help them if people drown.

The "Australian solution" – to intercept refugee boats in international waters and then to take refugees to camps in third countries, which receive money for this (such as Nauru) – is not applicable in the Aegean, as there are no international waters between Greece and Turkey. There is no island such as Nauru to which refugees could be taken. Even if one were available, it would violate the European Convention on Human Rights (see the judgement in the case Hirsi Jamaa and Others v. Italy from 2012 on interception-at-sea).


Some believe that all that the EU needs to do is to persuade Turkey to make a bigger effort to stop refugees leaving Turkey. With the right incentives – money, or other concessions – they imagine that Turkey can be persuaded to step up to the plate and fight smugglers, stop boats and control the movements of refugees. In some recent discussions, Turkish officials have in fact agreed to make further efforts. But the proposition is not a practical one.

First, in the eyes of Turkish leaders, Turkey is already making all reasonable efforts to stop the flow. The Turkish coastguard is actively trying to control boats in the Aegean (it picked up 60,000 refugees on boats this year), though its options for doing so are limited. Turkey will certainly not begin confining millions of refugees behind barbed wire to do a favour to the EU.

Second, while more Turkish coast guard boats, more equipment, more police might temporarily drive up the risks faced by smugglers, they are ultimately doomed to failure as long as everyone who arrives in Greece is certain to be able to stay in the EU. This creates a pull factor that Turkey alone cannot hope to resist. It is also unrealistic to expect Turkey to send significant forces to the Aegean to please the EU, given the dangers it faces on its Syrian and Iraqi border.

The only way to restore control in the Aegean is to reduce the pull factor. This can be done if Turkey accepts to take back everyone without any delay who reaches the Greek islands. Any serious discussion between Germany and Turkey should be on what it would take for Turkey to commit to this.

Whether the readmission of all migrants arriving after a certain date in Greece is discussed seriously is the way to distinguish a real from a fake debate. If this issue is not on the table, and addressed with the intention to make it work, there is no real debate and there will be no workable deal.

…and politically acceptable

Turkish resistance to being treated as the EU's "dumping ground" or buffer state for refugees goes back many years and is deeply entrenched. The EU's insensitivity to this has been the most striking failure in recent EU diplomacy. 

To put this debate in context: while a readmission agreement with the EU was long the EU's condition for launching the visa liberalisation process with Turkey, such an agreement only entered into force on 1 October 2014. Negotiations had lasted for more than a decade. They had been very tense and had left the participants bruised and resentful. 

After a transitional three-year period – from 1 October 2017 onwards – Turkey will have to accept back irregular third-country nationals if there is evidence that they reached the EU via Turkey. Until then, Turkey has signalled repeatedly, the EU will have to wait. Even then, the agreement allows Turkey to walk away from this deal with six months' notice.

Turkey-Greece readmission agreement has in fact been in force since 2002. In 2014, the first year of the visa liberalisation process, Greece asked for the readmission of 9,700 irregular migrants. Turkey accepted 470 – even less than in previous years. In the end, 6 migrants were actually returned to Turkey from Greece for the whole of 2014.

This is striking. Turkey hosts 2 million refugees from Syria; accepting a few thousand refugees from Greece would scarcely register on the total. For Turkey, however, this is a point of principle. For EU officials to ignore this recent history has doomed their diplomacy.

Greece-Turkey readmission agreement – recent years










Nuts and bolts of a solution

Angela Merkel in Anne Will interview

Last week, Angela Merkel was asked on German television to explain her plan on how to deal with the refugee crisis. She said this:

"We must better protect our external borders, but this is only possible if we reach agreements with our neighbours, for example with Turkey, on how to better share the task of dealing with the refugees. And this will mean more money for Turkey, which has many expenses because of the refugees. This will mean that we will accept a set number of refugees, in a way so that the human traffickers and smugglers in the Aegean will not earn money, but in an orderly way, this will also mean that we fulfil certain wishes of Turkey concerning the visa issue. One needs to speak about this now, in order to then arrive at a common will to control the borders."

But what are the nuts and bolts of such a solution, if it is not to take as many years as did EU-Turkey negotiations on visa and readmission, but yield results within weeks? 

First, the key when it comes to legal preconditions does not lie in Brussels but in Athens. As a new ESI paper explains, Greece can declare Turkey to be a safe third country. The paper explains the concept and the legal implications.

Second, Turkey would need to commit to taking people back. This does not require a new agreement, as Turkey already has a readmission agreement with Greece.

In both practical and political terms, however, it would require a bilateral deal with Germany to dramatically reduce the pressure on Turkey from the Syrian refugee crisis. Germany would have to put a historic offer on the table. We believe that Angela Merkel should begin serious talks on this as soon as possible.

The outlines of possible deal would be similar to what she proposed last week. As ESI has suggested:

Germany should agree to grant asylum over the next 12 months to 500,000 Syrian refugees from among those currently registered in Turkey.

Syrian refugees should be able to submit their asylum claims to Germany and other participating states from within Turkey. Those who are accepted will be given safe and orderly transport to their new host communities. The offer should be limited to Syrians currently registered in Turkey.

Such a scheme would allow priority to be given to the most vulnerable groups among Syrian refugees, who are not in a position to undertake the arduous crossing of the Aegean and the journey across the Western Balkans.


The dark alternative: fences that kill

East Germany: a fence that killed Death threats by far-right in Dresden last week

East Germany: a fence that killed – Death threats by far-right in Dresden last week

In a recent interview DIE ZEIT posed questions about the plausibility of the ESI proposal:

ZEIT: But in the current political climate it is completely unthinkable that the chancellor would speak about a number of 500,000 she actively wants to bring to Germany.

Knaus: I know that in the first moment this sounds counterproductive. But you can make it clear to people that without an agreement more refugees are to be expected. Even now there is talk of one million. And in talk shows superficial solutions like fighting root causes, solving the situation in Syria and Libya, or sharing the burden in the EU are being floated.

ZEIT: What about the magic formula "transit zones"?

Knaus: What the German federal minister of the interior proposes would indeed reduce the number of applicants from Balkan countries who are being rejected anyway – but this is not about them. Above all, it is about civil war refugees. Often people will say that the EU needs to better secure its borders, introduce stricter border controls and better equip refugee camps in the region. But none of these proposals will solve our most acute problem: How to reduce the number of refugees reaching the external borders of the EU. No Frontex mission, no European quota, no perfectly equipped refugee camp will stop the desperate from trying to flee to Europe. But if there's an impression in the public debate that there's no limit at all for the number of refugees, then soon the readiness to help will turn into fear. That's why I believe that we need to move fast. Angela Merkel and her political allies in Europe need to show that they – and not the extreme right – have a real solution to offer.

ZEIT: Viktor Orban accuses Angela Merkel of moral imperialism. This argument also goes down well with many Germans.

Knaus: Orban is right if he calls the hitherto existing international refugee policy hypocritical. On paper there's a generous right to asylum. But at the same time everything has been done to prevent refugees from claiming this asylum. In recent years, UNHCR resettled only 100,000 refugees worldwide per year to wealthy countries. That's of course a ridiculously low figure. But Orban's response to this is to by de facto get rid of the right to asylum altogether. He regards refugees as criminals, as enemies, and refers to Hungarian experiences with the Ottomans, as if they were an invading army. He also says that the refugee crisis is a good opportunity to overcome the "liberal age of human rights." Le Pen in France, Strache in Austria and others join in into that chorus. In the general helplessness such slogans are becoming more and more appealing.

ZEIT: Why should erecting borders not work?

Knaus: Angela Merkel said that she has lived behind a fence long enough and she knows that fences won't help. At first sight that's a strange argument: The Iron Curtain and the Berlin Wall worked very well and repelled refugees for decades. But for that you need a death strip and a firing order. And even that could not deter many desperate people to try nevertheless. Merkel made it clear that she will not build this kind of fence. You could militarise your borders and regard refugees as enemies. But then you would need to give up European asylum law as we know it.

This is the most important argument in favour of a credible plan that combines a compassionate solution for refugees with regaining control of the EU's borders.

The only conceivable alternative is full militarisation of the EU's external borders. An iron curtain would have to be drawn across the Aegean or in the Northern Balkans. For modern Europe, the idea of militarised borders is too horrible to contemplate. This would be the end of asylum as we know it; and the end of a "liberal Europe" committed to human rights that Europe's far right leaders look forward to with anticipation. 


A global breakthrough for asylum

1951 Refugee Convention

1951 Refugee Convention

A failure to reach a deal in line with international law would be ominous. On the other hand, a breakthrough along the lines outlined here would be historic.

The international conference that produced the text of the 1951 Refugee Convention recommended:

"…that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement."

In fact, resettlement of recognised refugees – which does not force them to cross borders illegally to obtain protection – has been the Achilles heel of the international system.

According to Eurostat the total number of refugees resettled in the EU in 2014 was 6,525. Half of them were accepted by Sweden and Finland. UNHCR submitted a total of only 103,800 refugees to states for resettlement in the whole world.

If rich countries would be prepared to take in significant numbers of refugees for resettlement in emergencies such as the Syrian crisis, then the promise of the 1951 Convention would be filled with substance.

If Germany were to accept 500,000 registered Syrian refugees from Turkey, and other EU members were to follow, it would constitute the most significant single resettlement in the history of the Convention. Following this Germany and Turkey might jointly call an international conference later this year to ask other rich countries in the world to also increase their quotas for resettlement, with a special focus on helping Lebanon and Jordan.


The "Merkel Plan" in the media

In recent weeks we explained the details of our proposals in many meetings and media:

Die Zeit, "Erdogan braucht Deutschland" - Interview with Gerald Knaus - (In English: "Erdogan needs Germany") (15 October 2015)

Frankfurter Allgemeine Zeitung, "Die Festung, die keine ist" (In English: "This is not a fortress") (5 October 2015)

Phoenix, "Zaghaft, zögerlich, zerrissen – Europa in der Flüchtlingskrise" - Gerald Knaus in debate on German TV - ("Tentative, hesitant, riven – Europe and the refugee crisis") (15 October 2015)

For more background information, please check our special website which we are updating regularly:

Best regards,

Gerald Knaus