Islands, detention and refugee rights in ‘crisis’

It might be argued that incarceration on islands has some practical benefit, or legitimate aim, but it is highly questionable whether such a response is necessary or proportionate. Photo: chatiyanon/Shutterstock
Postdoctoral Fellow, ANU College of Law
Wednesday 13 May 2020

Isolated. Remote. Insular. Detached.

The same mythical faraway features which attract tourists to islands as places of leisure and relaxation have long-captured the carceral imagination of states. COVID-19 has drawn attention to questions over the legality and ethics of using islands as spaces of incarceration, but these are not new questions. Throughout history, banishment and confinement to distant islands have been employed as powerfully symbolic responses to so-called “crises” in crime, public health, and migration. Islands become sites of imprisonment, quarantine, and, in Alison Mountz’s terms, an established part of the archipelago of immigration enforcement.

Exploitation of these romanticised island characteristics has involved invasion, occupation, massacres of local populations, destruction of wildlife and habitats, and inhumane treatment of people detained. In this way, certain islands have been exploited as spatially-distant locations where remoteness facilitates obfuscation with regard to oversight, accountability, and gross rights violations.

The construction, framing and language of “crisis” creates a fertile landscape for the expansion of state power whereby the emergency scenario – for example public health or national security – is used to justify derogations to, or limitations of, fundamental rights.

While it might be argued that incarceration on islands has some practical benefit, or legitimate aim, linked to the prevention of a perceived threat or harm accessing mainland territory, it is highly questionable whether such a response is necessary or proportionate. Rather, using islands to confine people – whether for fear of spreading disease or because they are seen as “illegal” migrants – is part of a symbolic demonstration of state power, at the expense of fundamental rights protections, particularly for non-citizens.

The use of Rottnest Island and Christmas Island to quarantine cruise-ship passengers and returning Australians drew public gaze back to these sites as spaces of confinement. But while Rottnest Island is now better known as a holiday destination than for its notorious and deadly past as an Aboriginal prison and forced labour camp, detention on Christmas Island persists to this day, with the $185m re-opening of the refugee detention centre following its short-lived closure in 2018. Thus, while Wuhan evacuees were free to return home following 14 days of quarantine on the island, the detention centre’s longest-standing residents, an asylum-seeking Tamil family with two young daughters, continue to be held there indefinitely, in a shameful, symbolic show of exclusionary state power.

As the number of people detained on the Aegean Islands continued to grow over recent years, living conditions have worsened to far beyond anything one would have thought imaginable on European soil, in flagrant violation of numerous European and International legal standards.

Crucibles of crisis: the Greek Aegean islands demonstrate the devastating effects of short-sighted refugee policy. Photo: Dr Jessica Hambly/ANU

The European Union has also pursued a policy of detaining people seeking asylum on islands. Today, some 40,000 people are trapped on the Greek Aegean Islands as a result of a deadly and inhumane combination of firstly, the “hotspot” approach, introduced by the EU Agenda on Migration as a response to the so-called "refugee crisis" of 2015, with the central aim of detaining people at Europe’s borders, notably on the Greek and Italian islands; and secondly, the 2016 EU-Turkey Declaration, under which, in exchange for about US$3 billion from the European Commission, Turkey pledged to manage its borders and prevent refugees crossing to Europe.

As the number of people detained on the Aegean Islands continued to grow over recent years, living conditions have worsened to far beyond anything one would have thought imaginable on European soil, in flagrant violation of numerous European and International legal standards. People are forced to live in extremely cramped, unhygienic island camps (some 9,000 people for 640 spaces in Samos-Vathy, and almost 20,000 people in Moria on Lesvos, designed for 2,840 people), some in IsoBox containers, but most in tents or makeshift shelters, with barely any access to food, water, sanitation or medical facilities, and no protection from the sweltering heat of summer or the freezing cold of winter.

Added to this, the hotspot islands have seen increasingly mounting tensions, with a rise in violent attacks on refugees, NGO workers and solidarity groups. This reached a peak in February-March 2020 when Turkish President Recep Tayyip Erdogan announced Turkey would “open the gates” to Europe, creating a highly volatile, and deadly, situation at the land and maritime border. In response, Greece’s Prime Minister Kyriákos Mitsotákis purported to suspend the right to seek asylum in Greece, a move described by the UNHCR as having “no legal basis” and attracting the following response from Ylva Johansson, EU Commissioner for Home Affairs: "(i)ndividuals in the European Union have the right to apply for asylum. This is in the treaty, this is in international law. This we can’t suspend." Nonetheless, since 1 March, the government decree which was later transposed into law by the Greek Parliament, effectively suspended applications for asylum during the month of March.

Thus, prior to COVID-19, a multi-layered "crisis" was already occurring on the Greek Aegean Islands. People arriving in March were immediately detained and held in unnamed detention sites - at roadsides, on beaches, and even aboard naval ships - in appalling and illegal reception conditions. At the same time, the threat of pandemic intensified. But barely any measures were taken to prevent the spread of the virus in refugee populations. Indeed, new measures announced by the government under the pre-text of the pandemic – increased use of systematic detention in closed facilities and even greater restrictions on procedural rights – had been planned long before COVID-19.

Islands, as detached sites of incarceration and zones of exception far from public gaze, have become crucibles of crisis. But these are crises of humanity, dignity, and respect for fundamental rights. The framing of the "refugee crisis" in 2015 facilitated a process of extreme degradation of rights owed to people seeking protection from persecution under international law. Such a restrictive interpretation of events in 2015 led to short-sighted, inhumane responses in law and policy. If, at that time, the "crisis" had been interpreted in a broader sense, in Jane McAdam’s words, as "just one aspect of the process of a crisis", this invites consideration of longer-term, more sustainable and humane responses, which capture the wider crises of colonialism, capitalism and international borders.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team