— When the EU lets refugees and migrants drown in the Mediterranean, and the UN lets thousands of Syrians – including women and children – die under the rubble after the earthquakes in February, has international law any meaning when those committed to helping the most vulnerable are letting them die?

The recent sinking of a migrant boat off the Greek coast, one of thousands of such tragedies since the early 1990s, is only more evidence of the irrelevance of international law and our growing tolerance of horror against our most vulnerable fellow human beings. The Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, speaking in Lampedusa on the eve of World Refugee Day, described this trend in the realm of migration[1] as an “alarming level of tolerance to serious human rights violations against refugees, asylum seekers and migrants”. The Commissioner also emphasized the prevalence of such tolerance across Europe, with the shipwreck off the Greek coast “yet another reminder that, despite many warnings, the lives of people at sea remain at risk in the face of insufficient rescue capacity and coordination, a lack of safe and legal routes and solidarity, and the criminalization of NGOs trying to provide life-saving assistance”. Indeed, criminalizing humanitarians seeking to rescue vulnerable people at sea, who are fleeing violence and persecution, surely in itself qualifies as a hallmark of a world in which international law is irrelevant.

The widespread normalization of egregious human rights abuses can be seen through the relative ease with which even the most brutal dictators and war criminals have been normalized after committing the most horrific crimes. President Bashar al-Assad of Syria has committed some of the worst atrocities, including systematic mass torture and disappearances on an industrial scale, and is being normalized not because he has stopped committing atrocities but because he has survived! The sinking of the migrant boat off the Greek coast, with the loss of possibly more than 700 lives (over half of them from Syria[2]), and the welcoming back into the Arab League of Assad after being expelled 12 years ago for committing such horrific crimes that he forced millions to flee, are obviously connected. What binds them together is the response of the European Union and the UN and their utter failure to uphold international law in protecting human rights and ensuring accountability for large-scale violations and atrocities.

The fundamental issue is that the right to human security, as compared to state security, under international law is not comparable! More specifically, state security and/or state sovereignty take precedence over human security, with the latter a relatively recent concept. In fact, it was first adopted in 1994 by the United Nations Development Programme with the aim of placing the individual at the center of all efforts, defining security in the broadest terms while giving precedence to protecting the person.[3] However, no treaty was adopted to give legal effect to human security as a concept, and certainly not in making it superior to state security. A good example is the recent report by the New York Times that revealed how rescued families were placed into an inflatable and cast out to sea by the Greek Coast Guard following their rescue, with one photograph actually showing a baby being passed down from the coast guard vessel to the child’s mother.[4] This a chilling example of how human security means little or nothing when compared to state security as defined by Greece and the European Union, on the assumption that the coast guard was acting under orders.

Voters in many countries seem to take the Greek view as reflected in the latter case. For example, the UK’s vote to leave the European Union was fundamentally about border control and excluding the non-existent “flood” of refugees, migrants, and asylum seekers! The election of Donald Trump as president of the United States in 2016, like the Brexit result, occurred because enough people who voted for him did so because they believe the most basic requirement of state security is tough border control that excludes all migrants, whatever their legal status.

Defending borders against that background is seen as repelling refugees, asylum seekers, and migrants.In brief, a new kind of implicit brutality has entered the political discourse around migration. Politicians who support this approach do not argue for defending borders by letting people drown in the Mediterranean, rather they cynically argue for tougher border controls, prosecuting people traffickers, and similar measures, knowing that such policies will not stop people from risking their lives to get to Europe, and are clearly designed to create an explicit culture in which rescuing anyone at sea who is seeking to find refuge is not a priority. Perhaps that is the only way to explain the lack of popular outrage at mass drownings in the Mediterranean.

Protecting the state is very much the foundation of international law under which the UN was established in the immediate aftermath of World War II, with the apparent aim to protect all states from illegal aggression. What that means in practice is that Russia and China were able to veto the referral of Syria in 2014 to the International Criminal Court (ICC) in the UN Security Council. That occurred despite the horrors being perpetrated by Assad and his regime in plain sight, as documented by the UN and all the leading human rights NGOs such as Amnesty International and Human Rights Watch. Syria had not ratified the statute establishing the ICC (which would, by definition, compromise Syria’s own state sovereignty), and the UN Security Council was the only body that could refer Syria to the court.

More seriously, Putin entered Syria in September 2015 to save Assad, while engaging in a brutal aerial bombardment against civilians in opposition-held areas. That campaign, which reached unparalleled ferocity in the battle for Aleppo in 2016, exacted a horrific price in civilian deaths. Worst of all was the systematic way in which Russia, alongside the Assad regime, systematically bombed health centers and hospitals in a calculated effort to crush civilian resistance. All of this has been documented by human rights reports by the UN, Amnesty International, Human Rights Watch, et al. But there has been no effort of any kind at the international level to secure accountability for these war crimes and crimes against humanity. Indeed, if action had been taken to confront Putin with his crimes, one is forced to ask: could the horror being inflicted on Ukrainian civilians today have been averted?

But it cannot be emphasized enough that prioritizing state sovereignty can lead to very serious human rights abuses even in the distribution of humanitarian aid by the UN, especially when the organization seeks to protect the sovereignty of the relevant member state to an extreme degree through a conservative reading of international law by UN Secretary-General. For example, thousands died under the rubble in northern Syria after the recent earthquakes in February this year, as the UN waited for Assad’s permission to act. Many were shocked by that delay because, in spite of the attempts to suggest it was due to the roads being blocked by the earthquakes (which has subsequently been comprehensively disproved), it was clear this was an indefensible failure to act by the UN. That was confirmed by the organisation’s Relief Chief Martin Griffiths who accepted responsibility in quite explicit terms: “We have so far failed the people in north-west Syria. They rightly feel abandoned. Looking for international help that hasn’t arrived”.

Therefore, what is the difference between Greece, and by extension the European Union, pursuing a policy of border control in the Mediterranean that leads to refugees, asylum seekers, and migrants continually downing, and the United Nations, and the Secretary General of the United Nations in particular, letting thousands die under the rubble after the earthquakes in northwest Syria while he waited for President Bashar al-Assad’s permission to act?[5] Indeed, the Assad regime does not even control the region in question despite being the recognized authority! Hence, many still ask why, after receiving advice from leading international lawyers (including former judges of the International Criminal Court) that he had the right to act unilaterally under international humanitarian law in a clear emergency with lives at stake, the Secretary-General waited as Syrians in their thousands lay dying under the rubble?[6] Why did he not use his bully pulpit and his moral and legal authority to take decisive action to defend the most vulnerable? One has to ask, by failing to act in these situations, is the UN Secretary-General merely making international law irrelevant? Even more seriously if he does not act and speak out at a global level, who will?

[1] “Serious violations” of migrants’ rights in Europe says CoE Commissioner Dunja Mijatovic in Lampedusa on eve of WRD via ANSA. https://www.ansa.it/english/news/general_news/2023/06/19/serious-violations-of-migrants-rights-in-europe-says-coe_8da16a3d-c07b-4ee6-9baa-5b195a083c5a.html#  

[2] “Greek Coast Guard Under Scrutiny for Response to Migrant Mass Drowning” via The New York Times (June 19, 2023) https://www.nytimes.com/2023/06/19/world/europe/greece-migrants-ship-sinking.html

[3] UN Human Development Report 1994. United Nations Development Programme. https:// hdr.undp.org/content/human-development-report-1994

[4] ‘Video shows Greece abandoning migrants at sea’, The New York Times: https:// www.nytimes.com/2023/05/19/world/europe/greece-migrants-abandoned.html (19 May, 2023).

[5] “Letter: Guterres has no excuse for delays helping Syrian quake victims” via The Financial Times https://www.ft.com/content/63992947-a63c-4ab7-ab92-4f4a3ea6fb6c (20 February 2023). 

This Letter to the Editor of one of the world’s most important papers of record is relevant because the UN Secretary-General chose not to reply to it. In doing so, he de facto confirmed that he could not act without a UN Security Council resolution. But as the letter noted, he had received advice from a number of international lawyers advising him that he had the authority to act. His failure to do so in waiting for Assad’s permission only served to help normalize a brutal dictator indicted many times in the UN’s own human rights reports for some of the worst crimes since the Holocaust.

[6] Ibid.