Geographically, Serbia is at the heart of the Western Balkan route that people on the move — refugees, asylum seekers, and migrants — began taking in the early 2000s, fleeing armed conflicts then underway in Afghanistan and Iraq. Surrounded by European Union member states Croatia, Hungary, and Romania, Serbia represents the last step that refugees and asylum seekers need to take before reaching EU countries and their asylum systems, which can provide them with better opportunities than their countries of origin and allow them to exercise their 1951 Refugee Convention rights.
Nikola Kovačević is a Serbian human rights lawyer. He won the 2021 UNHCR Nansen Refugee Award for Europe for his contribution to the development of the Serbian asylum system and his work documenting and legally challenging illegal border practices.
Between 2015 and 2016, at least 1.5 million people took the Western Balkan route and found safety in the EU. Most of them needed international protection — Syrians and Iraqis, but also Somali, Sudanese, and Afghani people and others.
Violations on the Border
Instead of designing a joint approach, one country after another has adopted illegal policies, with clusters of human rights violations predominately practised at the European Union’s external borders.
Of course, there are extreme examples of individual countries deliberately dismantling their own formerly humane asylum systems (e.g., Hungary), but most of the damage to the human rights of people on the move happens at the borders.
These harmful practices involve arbitrary deprivation of liberty for foreign nationals who are intercepted at land or sea borders. This is frequently followed by mistreatment, including a variety of forms of deliberate physical and/or psychological violence (kicking, slapping, punching, striking with police batons, electric shocks, forced stripping, use of pepper spray and police dogs, etc.), and then forced returns with no assessment of either the risk of repression (torture, inhumane or degrading treatment, or punishment in the receiving state) nor the individual circumstances of each and every person. Pushbacks are the most common form of collective expulsion.
Considering the number of arrivals in the EU, it is hard to imagine that the countries forming its external borders will establish a proper infrastructure to apply such policies in a way that respects human rights.
These people are deprived of their right to territorial access as well as to access asylum procedures. Furthermore, they are deprived of the opportunity to dispute their unlawful return by means of legally established procedures, assisted by legal representatives and interpreters who can communicate in a language migrants understand. Since the March 2016 EU-Turkey statement, refugees, asylum seekers, and migrants have been denied access to justice at the EU’s borders, assisted only by a handful of human rights lawyers who can scarcely issue legal challenges to one, several, or all of the aforementioned forms of mistreatment.
On top of the crisis of the rule of law and lack of respect or protection and fulfilment of human rights for people on the move at European borders, many countries have started to develop policies that, at their core, are intended to externalize refugee-status determination procedures.
The first such example is the EU-Turkey statement, which apparently failed due to the increasing number of Syrians who decided to take the journey to Europe after Turkey’s decision that some parts of Syria had become “safe” for return. Another reason for its failure is the devastating February 2023 earthquake that hit areas of Turkey where several hundred thousand refugees from Syria had been living since 2011.
Other formal attempts to externalize procedures are embodied by the flawed and automatic application of the “safe third country” concept in relation to countries such as Turkey, Serbia, and others with dysfunctional and ineffective asylum systems. Many of these policies have been declared illegal by the European Court of Human Rights and other relevant universal or regional treaty bodies for human rights protection.
The recent news that Albania would open immigration detention centres serving Italy as processing points is one of the latest examples of EU states’ aspirations to transfer their responsibilities to other, less developed countries with unimpressive human rights records. Countries like Albania objectively do not have the capacity to apply immigration detention policies in line with the right to liberty and security, and there is considerable risk that thousands could be detained in an arbitrary manner. The same can be said for Serbia as well as Bosnia and Herzegovina, which have been mentioned as potential candidates to do the EU’s dirty work behind closed doors.
A Precarious Future
Let us not forget that the EU will finally reform the Common European Asylum System (CEAS) in the first half of next year and, according to existing drafts, introduce a legal framework implying massive use of detention and border procedures.
Considering the number of arrivals in the EU, it is hard to imagine that the countries forming its external borders will establish a proper infrastructure to apply such policies in a way that respects human rights. According to relevant actors in the field of refugee protection, it is more likely that countries will continue to resort to harmful border practices based on pushbacks and violence, rather than detain hundreds or thousands of refugees in border detention centres.
Whichever path is taken, it will not be in line with international human rights law.
Millions of euro have been invested in border equipment, Frontex officers have been dispatched, and various memorandums have been signed allowing Austrian and Hungarian police officers to patrol the Serbian border.
Another worrying change in the CEAS is a more flexible interpretation of the “safe third country” concept, which will most likely lead to its automatic application in Western Balkan countries whose asylum systems are ineffective, unfair, and dysfunctional. In other words, solutions that have failed in the past will again be applied under the auspices of CEAS “reforms”.
Where does Serbia fit into all of these “improvements” and newly designed policies? Refugees or migrants were pushed back from Hungary to Serbia at least 158,565 times in 2022. Several dozen thousand persons were pushed back from Croatia and Romania as well. On a daily basis, it is reasonable to assume that several thousand people are pushed back from one country to another along the Western Balkan route.
At the same time, the number of persons recognized as refugees in Serbia, North Macedonia, Bosnia, and Albania can only be described as a statistical mistake. Organized criminal groups have flourished due to harmful border practices applied by neighbouring EU countries, and today it is not uncommon for groups of smugglers to exchange gunfire with Kalashnikovs in the Serbian-Hungarian border area.
Millions of euro have been invested in border equipment, Frontex officers have been dispatched, and various memorandums have been signed allowing Austrian and Hungarian police officers to patrol the Serbian border — all with the aim of combatting irregular migration and suppressing organized crime.
Of course, these are not the real goals. Behind such “justifications” lies a deeper need to bolster the policies that have buried international human rights law and international refugee law at the EU’s borders. The results of these efforts include shootings, the death of three foreign nationals in the green border area between Serbia and Hungary, and reports of links between organized crime and state structures.
Can Serbia be considered safe? I doubt that, but I am sure that the European Commission, with its vague and shallow Progress Reports, will at least try not to mention the harshness of the Serbian asylum system’s currently state. Maybe one of the EU’s ideas will be to portray Serbia as a place that can protect refugee and asylum seekers’ human rights?
The only conclusion that can be drawn is that the future of refugee protection in Europe will remain precarious. The crisis in the rule of law at Europe’s borders, and the EU’s external borders in particular, will continue even after the new CEAS is adopted, and will lead to more obstacles for people who seek safety in Europe. Countries like Serbia, Albania, and Bosnia will probably be proclaimed “safe third countries” again, and refugee lawyers and advocates will again be forced to take EU countries to international bodies in order to remind the EU that the solutions it has implemented over the past decade have failed to provide results.