By Svit Senković
Last week my home country, Slovenia, took the lead in Europe’s tragic race to the right. In a move that would make Donald Trump tweet with joy, the Slovenian parliament adopted amendments to the Aliens Act, which now provides the government with the legal ability to shut the border completely to any migrant or refugee trying to enter. The law, which is most likely unconstitutional and in breach of Slovenia`s international obligations regarding the protection of refugees, was proposed by the governing “central-left” Party of Modern Centre, led by Prime Minister Miro Cerar. In a sad twist of irony, Dr Cerar is a well-known law professor, and an expert on human rights; he was actually my professor when I studied law at the University of Ljubljana.
In order to trace Slovenia`s journey to the dark side, we need to go back to autumn 2015.
Background to Slovenia’s refugee ‘crisis’
After Hungary finished construction of its razor-wire border fence and closed the closest route from Greece to Germany, the refugee ‘wave’ finally reached Slovenian borders. Although it was clear that after Hungary closed its borders the migrants would inevitably try to reach Germany through Croatia and Slovenia, the Slovenian authorities were dreadfully unprepared. Suddenly, Slovenian border posts were overwhelmed by thousands of migrants who were dumped there by Croatian authorities. This led to ugly scenes of refugees sleeping rough in freezing weather without food or water, before being marched through cornfields for several miles to registration centres.
The desperation of those left in the cold like human litter, marching through the Slovenian corn fields, was depicted and exploited by none other than man of the people and Donald Trump admirer Nigel Farage. An image of the march was displayed on his now infamous anti-migrant “Breaking point” poster seeking to stir up anti-migrant sentiment.
After a media outcry, the situation in the fields did improve. Concernigly however, the contact of ordinary Slovenians (mostly through their TV screens) with something as terrifying as desperate families trying to flee the worst war of the 21st century, seemed to turn a large part of the Slovenian population towards low-level fascism. Social networks were flooded with calls to close the border, arrest illegal immigrants, even with calls to violence. This online orgy of hate happened despite the fact that none of the migrants actually wanted to stay in Slovenia. Nevertheless, the voice of hate shouted loudly and the government listened.
Instead of improving facilities for refugees, the government first decided to install barbed-wire fences along long stretches of the Slovenian-Croatian border. In the governmental double-speak, this fence was called “a technical barrier”. This dreadful fence (sorry, technical barrier) destroyed some of Slovenia’s most beautiful and iconic scenery, in the Kolpa river valley. The fence did not stop a single migrant (who were still trying to get into Slovenia through official border crossings). What it did stop was tourism in the Kolpa valley and wild animals trying to get to water.
In the spring of 2016, the “Balkan migrant corridor” was shut down, as all states on the route closed their borders. After Austria closed its border to ‘illegal migrants’ as well, those migrants still in Slovenia were left with no other choice than to apply for asylum. In 2016, 1,308 people applied for asylum in Slovenia. That is roughly 127 asylum seekers per one million inhabitants, a minuscule number compared to the EU average of 702 asylum seekers per million inhabitants or to Germany, which currently hosts approximately 2,890 asylum seekers per million inhabitants. With Slovenia’s refugee applications at such a low compared to the EU average, why are the rabid voices of extremists getting so much airtime with the press?
Amending the Aliens Act
Migrants were now freezing in the fields of Northern Greece, far away from the freaked-out Slovenian public. However, Slovenian interior minister Vesna Györkos Žnidar, another lawyer and a former attorney, started to work on a piece of legislation (the amendments to the Aliens Act) that would enable Slovenia to completely close the border to any migrant trying to enter. The fear of Slovenian officials could be in some senses understood. Nobody wanted to see Slovenia turned into a limbo, where thousands of migrants would be stuck. However, the interior ministry’s main argument that the amendment of the law is necessary to prevent the state from collapsing in case of the mass arrival of asylum seekers seems implausible.
How many thousands of people would have to show up at Slovenian borders and apply for asylum, before Slovenia would crumble? According to the official government numbers – 900. For this number to be put into perspective, one might wish to compare it to Lebanon (not the richest country in the world) which currently hosts 1,000,000 Syrian refugees, which amounts to around one in five people in the country but still somehow hasn`t collapsed. Slovenia would on the other hand crumble at the arrival of the 901st refugee? The government’s justification clearly doesn’t stand up to scrutiny.
They ploughed ahead, however, and the amended Aliens Act now gives Slovenia’s parliament the power to declare a special “state of emergency”, which would then allow the police to deny entry to anybody arriving at the borders. It would also allow them to automatically expel migrants and refugees who had entered Slovenia irregularly, without assessing their asylum claims or the risk of them being tortured or persecuted upon return.
Is Slovenia breaching its obligations under International and European law?
Amnesty International stated in reference to the amended Slovenian Aliens Act, that stripping people fleeing for their lives of their right to claim asylum and pushing them back at the border is a breach of International and EU law. The Slovenian government did try to walk a very thin line between its obligations under international law and its own desire to shut the doors when needed. In some aspects, it has even succeeded, inadvertently highlighting the fallacies of the current EU system of refugee protection. However, it is the message the Slovenian government has send to the world that is the most damaging aspect of this whole affair.
One of the cornerstones of the 1951 Refugee convention (a Convention described by human rights academic Francesca Klug as ‘the World’s apology for the Holocaust) is that everyone has a right to apply for asylum and cannot be deported without having his or her application individually processed. The closing of the borders would of course prevent anyone from even lodging an application, and would breach Slovenia’s obligations to determine whether individuals have a well-founded fear of persecution. In the final version of the amended Aliens Act, refugees arriving at the border could still declare their “intention to apply for asylum in Slovenia” (which is not the same as “apply for asylum”). However, their” intention” would then be assessed by the police, and not by a court or a proper administrative body. The police would automatically reject all such intentions, if the refugees came from a “safe” country (a country in which there are no systemic shortcomings regarding their asylum system and where the returned people would not be under a threat of torture or degrading treatment). Such arrangement is not a violation of EU refugee law per se. The Dublin Regulation does state that the refugees may be returned to the first EU country they have entered and where they can apply for asylum. Such system is grossly unfair, as it imposes a disproportionate burden of care of refugees to the poorest EU country, Greece. However, the Dublin Regulation is a valid law.
The main problem regarding the new Slovenian law is in its application. First of all, it is getting harder and harder to argue, that Croatia and Hungary, Slovenia`s two neighbours to where the refugees would be deported to, are “safe” countries. More and more reports are claiming that Croatian police are violently forcing arriving refugees back to Serbia where refugees are freezing to death on the streets due to lack of appropriate shelters. As for Hungary, their minister just announced formation of special “camps” where refugees would be detained during their asylum process. Secondly, it is naïve to expect the police to be able to make on the spot decisions as to whether refugees are minors, have serious medical conditions or whether they would be under threat of torture or degrading treatment upon deportation. Furthermore, any appeal against the police`s decision would not halt the deportation and would be decided by the ministry of the interior and not by a court. Slovenian government`s claim that this is an adequate process for determining refugee status is hard to follow.
The government went forward with the law despite receiving warnings from local NGOs, academics, and international organisations, such as the Council of Europe, which (embarrassingly to Slovenian officials) proposed to send their legal advisers to Slovenia to help with redrafting of the law. All offers of help were vehemently rejected. The Prime Minister even came back with a bizarre statement (given the actions of his government), that international (human rights) conventions may not be interpreted in a way, that would threaten human rights of Slovenians and migrants. In the end, the law was adopted following votes from all parties, with the honourable exception of the leftist United Left party.
It seems anti-migrant populism is reducing our capacity to display humanity to those who are suffering
Whilst the Slovenian act did manage to ‘trump’ the U.S President’s Muslim ban by a couple of days, the effect on the vulnerable is the same. But let’s have faith, in the end, the act will suffer the same fate as Trump’s executive order. Sometime in the future it will get demolished, either by Slovenia`s Constitutional Court or the European Court of Human Rights.
So why am I complaining? It`s not as if this is the first time a politician has adopted a stupid law in order to boost their ratings.
I keep thinking about footage made by a Slovenian news crew during the 2015 ‘migrant wave’. They were interviewing a young Syrian girl, who was waiting on a train in Slovenia to continue her journey to Germany. “Do you want to stay in Slovenia?” the journalist asked her. She smiled and politely replied “No. Slovenia is a very poor country.” So there we go. Not even people trying to escape the carnage in Syria want to remain in our “Alpine paradise”. I felt deeply ashamed. Germans can be proud to have a country that thousands of people are risking everything to get to. Even the UK, with its anti-immigrant advocates such as Nigel Farage and (the unelected Prime Minister) Theresa May, is still seen as such a desirable place for refugees, that people are prepared to jump on moving trucks in Calais port just to get there.
So, whilst the U.K abandons the Dubs amendment, and refugee children in the process, and the U.S ignores its domestic and international obligations towards refugees, Slovenia had a wonderful opportunity to show an example of how to treat arriving refugees with some respect. Instead of desperately trying to stop people from coming to Slovenia, trampling over their human rights like an elephant in a china shop, my compatriots and I should be making our country a place where people would actually try to migrate to. Instead of spending millions on fences to keep people out, we should be investing in our futures. Taking a stand for the rights of the refugees means taking a stand for ourselves. I leave with you some striking imagery from history that I hope will remind you of the importance of taking this stand.