Frontier Justice

by Andy Lamey

  Many human rights advocates object to an incentives-based approach to asylum. Julian Burnside, a prominent Australian lawyer, expressed this view when he said that mandatory detention was objectionable on the grounds that it “involves instrumentalising innocent people in order to achieve another objective.” Burnside’s remark crisply captures the dubious moral foundation of Ruddockism. The incentive message that would be sent to future refugees was the only consideration that mattered. Creating that incentive justified treating refugees as nothing but means.

  It would be a mistake, however, to conclude that incentives and moral considerations must inevitably be in conflict. Adam Smith once said that economics is properly understood as a branch of moral philosophy. By that standard, the problem with Australia’s approach was not that it gave too much weight to incentives, but that it did not recognize all the incentives in play.

  In addition to pull factors, migration patterns are also influenced by push factors, or considerations that drive people out of a particular country or region. Sue Hoffman and others who work with refugees often point to the clampdown on Iran when explaining why the number of refugees travelling to Australia increased in 1999. Such policies were a powerful incentive for Mohammad Al Ghazzi and other refugees to run for their lives. For all Ruddock and other Australian officials spoke of incentives, their approach was based on overlooking incentives to flee created by other governments. It was as if the only reason anyone ever came to Australia was because it was seen as a soft touch.

  Ruddock’s approach also ignored what Matthew Gibney calls the problem of the ethical state. When Australia and other countries introduce severe policies, some refugees choose instead to go to countries with more reasonable asylum systems. Given the tendency of many politicians to interpret every uptick in the number of arrivals as a sign that their own system is too open, the result is a race to the bottom, in which governments create incentives for each other to make their systems ever more unwelcoming.

  Ruddock and other politicians can be faulted for conveniently selecting which incentives to highlight. But there was a deeper problem. Ruddock’s government said its policies were meant to serve a humanitarian goal by reducing boat arrivals. Yet the same government put in place two incentive structures that worked against humanitarian outcomes, and could have been foreseen to do so.

  The first of these concerned the visas Ruddock’s government issued to refugees. Temporary protection visas, as they were called, were a key element of Australia’s deterrence program. After they were introduced in 1999, temporary protection visas were issued overwhelmingly to men, including Mohammad Al Ghazzi. A condition of receiving the visa, which was good for three years, was that a holder could not bring his family to Australia, a policy that set Australia apart from several other refugee-receiving countries. Had Al Ghazzi, for example, reached Canada from Syria and filed a successful refugee claim, he would have been able to sponsor Raghed and his children to join him. By denying people like Al Ghazzi this option for three or more years, Australia’s asylum policy did precisely what Ruddock claimed it was designed not to do: it created an incentive for people to make dangerous sea crossings. The only way for people like Raghed to be with their husbands was to risk their own smugglers’ passage.

  Sue Hoffman has documented the effect temporary visas had on Australia’s intake of asylum-seekers. She draws a comparison before and after October 1999, when temporary visas were introduced. In the first ten months of 1999, 111 children attempted to reach Australia by boat. In the two months after the new visas were introduced, the number of children shot up to 313. And it kept increasing, to the point that 1,563 children attempted sea crossings in 2001. The information that is available suggests the ratio of women also increased considerably. This upsurge might well have been avoided had different conditions been imposed on refugee visas.

  As Hoffman puts it in regard to Raghed’s boat: “There’s no question that the government was culpable in terms of the fact that there were so many women and children there. And that the policy increased the number who came by boat. I mean, we’ll never know what would have happened if that policy, if these restrictions on the men’s visas, hadn’t been introduced … but it does seem as though huge numbers [were involved], because suddenly instead of single men you had whole family groups.”

  This is what Al Ghazzi had been so angry about when he stormed into the Immigration Department and accused its staff of killing people. His visa had left his family with little choice. “Why you just decide for temporary visa?” he asks. “That’s a huge thing. If we came here by permanent visa, it didn’t happen.”

  The second negative incentive involved the issue of humanitarian rescues. The sea voyage from Indonesia to Australia is dangerous because, among other reasons, ships such as that carrying Al Ghazzi’s family frequently break down. In such situations, passing cargo ships are expected to respond to distress calls, just as the Tampa did. This is the case even though modern ship captains now sail a “free-market sea,” as the author William Langewiesche has put it, “where profit margins are slim, [and] delays of even a few hours can seem unacceptably costly.” By involving the Tampa in a standoff after it responded to a distress call, the Australian government created an incentive for commercial ships not to perform ocean rescues near Australia. Captains who simply let people drown would avoid the possibility of being involved in a potentially costly episode of the kind that engulfed the Tampa.

  The idea that any captain could sail past people drowning at sea may seem far-fetched, yet it has been known to happen. Tragically, one such case involved the ship carrying Al Ghazzi’s family. Many survivors of the sinking have described two ships coming upon them in the water at night. One eighteen-year-old Iraqi survivor summarized the view from the wreckage: “The people on the top deck of the boat as it was rocking before capsizing saw 2 large ships. They thought that they would be rescued. None of them came to the rescue. When night came the two ships turned flood lights and projectors on the people. One felt as if the light was so close that it was next to him. [When the night came] we were very close to Australian waters.”

  People in the water blew whistles and shouted to attract the ships’ attention. But after shining their lights on them and circling several times, the two boats glided silently away.

  An enduring mystery of the sinking concerns the identity of the passing ships. “What kind of situation would it be where you get two big ships together?” Sue Hoffman asks. A possible answer was suggested during Hoffman’s research project in which she interviewed refugees. One of Hoffman’s interviews was with an asylum seeker who made a failed attempt to reach Australia in a small boat that stalled along the way. After the boat stalled it encountered two fishing vessels working together. “I might get the nationalities wrong, but it was like a Filipino and a Korean ship working in tandem. One was a fishing vessel and the other one was a refrigeration vessel. So there were these two big ships working in tandem, and [perhaps] it was something like that.”

  Some observers have suggested that the two passing ships may have been commercial vessels which were disinclined to pick people up between Indonesia and Christmas Island, as they would not have been able to let them off in Australia. But as Sue Hoffman points out, the identity of the ships remains unknown. “It’s all speculation. Nobody really knows.”

  The passing ships should cause us to ask what the predictable incentive effects will be of Tampa-style standoffs. To be sure, there is no evidence of a direct causal link between the Tampa episode and the death of Mohammad Al Ghazzi’s family. Yet turning away a commercial vessel after it rescued people at sea was likely to reduce, rather than increase, the incentives for commercial vessels to perform humanitarian rescues. But the Australian government turned away the Tampa regardless. It then asked the world to take seriously the notion that it was acting with humanitarian considerations uppermost in mind. As we will see in the next chapter, this typifies the situation of refugees who sail for
Western shores. Whether they come via the Windward Passage, the Sundra Strait or points in between, a phony and corrupt humanitarianism is the only humanitarianism many will ever experience.

  Postscript: In 2010, Australia reintroduced a version of mandatory detention. It saw children and family groups released into the community after only a brief period in detention. Single men were again subject to extended incarceration. Eight years after it had closed, Curtin Detention Centre was reopened.

  FIVE

  RAISING THE CASTLE

  IT WAS THE LARGEST DEMONSTRATION in the history of Bonn. Rocks and bottles thrown by youths in ski masks and leather jackets fell like hailstones on the shields of riot police who had barricaded the German Parliament. Behind the rock throwers, thousands of demonstrators chanted “Deportation is murder” and “We are one people.” They filled the streets in such numbers that traffic throughout the government quarter was brought to a standstill. Politicians who had been unable to get through the crush of bodies were being taken to the Parliament by helicopters and police launches that normally patrolled the Rhine. A member of the ruling Christian Democrats who was hit by a protestor’s balloon entered the plenary chamber splattered in paint, triggering angry shouts of “Anarchists!” from the government benches.

  The government was proposing to change Germany’s asylum law. Inside the Parliament, the proposal was the subject of what would become an epic thirteen-hour debate, during which the besieged lawmakers denounced not merely the protestors but also each other in historically charged terms. When a Far Right politician rose to speak, other politicians stormed out while shouting, “Neo-Nazi out of Parliament!” Members of the Party of Democratic Socialism gave several inflammatory speeches suggesting that the government’s proposal amounted to rebuilding the Berlin Wall. One PDS representative said, “You will see: whoever votes today to essentially eliminate the right to asylum must know that he is partially responsible for future shootings of refugees at the border.” In response, a member of the Green Party reminded the assembled lawmakers that the PDS was the successor to the East German Communist Party, “the party that built the wall and that in East Germany did everything that was contrary to granting asylum.” As he spoke, waves of applause emanated from the benches of all the major parties.

  Germany’s asylum debate occurred in the spring of 1993. It eventually resulted in radical changes to the country’s refugee laws. Before then, Germany had one of the most strongly worded asylum laws in the world. Afterwards, the legal protection it offered people seeking refuge shrank dramatically. Germany’s transformation in this regard illustrates three international trends that have long since come to define the treatment of refugees, particularly in Europe. Germany is an influential member of the European Union, and its experience with refugee issues in the 1990s reflects a darker mood regarding asylum that was settling across Europe during the same period. Germany has also not traditionally seen itself as a country of immigration, and the collapse of the protections it had extended to refugees is in part a reflection of the difficulty of guaranteeing the rights of refugees in societies with descent-based models of belonging.

  The most important reason to take note of what happened in Germany, however, is that until 1993, the concept of human rights was at the core of the country’s approach to asylum. In particular, Germany had enshrined a right to asylum in its constitution. This is a plausible way of responding to the needs of refugees, and more than one country has affirmed a constitutional right to asylum. So far, however, a constitutional right to asylum has not proved a durable long-term solution, in Germany or anywhere else. Understanding why this is the case is a necessary condition of making progress on the refugee predicament Hannah Arendt left us with. Assuming, that is, that the rise and fall of a right to German asylum does not cast the very idea of refugee rights into radical doubt.

  Nineteen ninety-three was not the first time Bonn was home to a tumultuous constitutional debate. In 1948 the founders of what would soon become the new state of West Germany gathered there in a natural history museum—one of the few large buildings still standing after the war—to begin the arduous task of rebuilding their country’s political institutions. The meeting’s location was not its only aspect influenced by the Nazi years. The Bonn politicians also decided on a new constitution, one that was shaped by their memories of Germany’s descent into fascism.

  The Basic Law, as the German constitution is known, is one of the most powerful legal documents ever created. It has been characterized as containing “a more rigid general version of the rule of law than any other constitution in the world.” The constitution gives German courts far broader powers than courts possess in other countries. Over the years German judges have addressed whether nuclear missiles can be located on German soil, how big the public debt should be and other questions that are normally regarded as the purview of politicians. The Basic Law is also extremely difficult to change, requiring two-thirds majorities in both houses of the German Parliament.

  Both of these aspects reflected the 1948 lawmakers’ memory of the democratic Weimar Republic that existed in Germany from 1919 to 1933. Weimar’s constitution contained clauses concerning emergency powers and other loopholes that were widely seen as having enabling Hitler’s ascent. The “anti-Weimar Constitution,” as the Basic Law has been called, was thus deliberately designed to prevent an extremist movement from ever wielding power again, by limiting the authority that would be given to politicians. Political leaders would instead be made to operate within the strict parameters set down by the Basic Law as interpreted by judges.

  It was in this context that West Germany’s founders included the following sentence in the Basic Law: “Persons persecuted on political grounds shall enjoy the right to asylum.” The lawmakers were conscious of Germany’s responsibility for not only creating but also mistreating large numbers of refugees during the Nazi years. They recalled episodes at the Swiss border during which fleeing Jews were denied entry to Switzerland and instead handed over to German authorities. “If we include limitations [on the right of asylum], the police at the border can do as they will,” one of the Bonn politicians argued during the constitutional deliberations. “This makes the right to asylum absolutely ineffective. We have our experiences from the last war, namely with Switzerland. We can only preserve the right to asylum with a clear and simple rule.”

  The clear and simple rule the founders of West Germany eventually settled on applied the logic of the Basic Law to an issue, asylum, that was normally left up to politicians. By limiting political officials’ ability to turn away refugees, the drafters of the constitution sought to ensure that no genuine refugee would ever again be mistreated on German soil. West Germany would thus make a dramatic break from its past. Where Germany had once been a major producer of refugees, now it would be a moral exemplar among nations when it came to the rule of law in general and the treatment of refugees in particular.

  In the late 1940s West Germany witnessed a massive influx of people. More than 12 million arrived from Eastern and Central Europe between 1945 and 1949 alone. The new arrivals, however, were the descendants of people who had lived in Germany before 1937 or were for some other reason legally classified as being of German descent. For this reason, the West German government did not regard them as foreigners and they did not need to make asylum claims. The same was true of the 3.8 million people who moved from East to West Germany between 1945 and the construction of the Berlin Wall in 1961. They were seen as members of the German people who happened to have been caught on the wrong side of the Iron Curtain, and were automatically entitled to West German citizenship.

  Postwar Germany’s understanding of national identity was very different from that found in the contemporary United States, Australia and other countries of immigration. It has been well described by migration scholar William Brubaker: “Because national feeling developed before the nation-state, the German idea of the nation was not, originally, a political one, n
or was it linked with the abstract idea of citizenship. The pre-political German nation, this nation in search of a state, was conceived not as the bearer of universal political values, but as an organic, cultural, linguistic or racial community—as an irreducibly particular Volksgemeinschaft [people’s community]. On this understanding, nationhood is constituted by ethnocultural unity and expressed in political unity.”

  In countries of immigration it is customary for membership to be defined according to the principle of jus soli, which grants citizenship to anyone born on domestic soil. West Germany citizenship, by contrast, was granted according to the principle of jus sanguinis, literally, as a “right of blood.” Germany’s economy was so booming during the 1950s and ’60s that not only could it absorb millions of ethnic Germans, it also began seeking out “guest workers” from Italy, Greece, Turkey and other Mediterranean countries. They were classified as guest workers because the German conception of belonging did not extend to foreigners gaining permanent admission (even if, in the end, many would in fact become permanent and prove the guest worker label something of a fiction).

  By contrast, the number of people who tried to exercise a right to asylum during the postwar years was small. During the 1950s and ’60s, roughly five thousand people a year made asylum claims. Most of these were defectors from the Eastern bloc, and so were eagerly welcomed. Not only did such a reception demonstrate the West’s superiority over the illiberal East, but the roaring German economy created a steady demand for their labour. Insofar as anyone thought about asylum as a political issue, therefore, it was seen not as a source of crisis, but as a point of pride: proof that West Germany had succeeded in making a decisive break from authoritarianism, a variation of which still existed just over the Berlin Wall.

  Flash forward to 1980, when a coup in Turkey resulted in ninety-two thousand Turks claiming asylum in West Germany. Neither ethnic Germans nor refugees from communism, they received a much cooler reception. The government introduced a variety of measures designed to make West Germany a less attractive destination. Appeals were restricted and welfare payments were slashed. These and other measures succeeded in reducing the number of claims through the mid-1980s, but in the final years of the decade a global rise in the number of refugees saw asylum applications rise again. In 1987 the government redoubled its border-control efforts: airlines were made to pay “carrier sanctions” when they transported passengers who filed asylum claims without identity documents, and people requesting asylum were denied the right to work for five years. Despite these efforts, in 1988 West Germany received 103,000 asylum claims from Sri Lanka, Lebanon and other war-torn regions, the highest number in its history.