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Lena Karamanidou and Bernd Kasparek
death. Thus the conceptualization of pushbacks as primarily violations of the nonrefoulement principle privileges their impact on protection seekers, while their
violence affects border crossers irrespective of claims to protection (Keady-Tabbal
and Mann 2021). Further, this conceptualization has allowed for allegations of
pushbacks to be circumvented by claiming that border crossers are returned to
countries considered “safe,” where they do not face risk of persecution or degrading treatment (ECRE 2016; Graf and Budelmann 2020).
Nevertheless, we do not wish to define pushbacks as merely violations of human
rights for two reasons. First, conceptualizing pushbacks in this manner situates them
as an aberration within border regimes. The legal frameworks governing European
borders and practices of state agencies and other actors—such as Frontex—all
invoke respect for refugee law, human and fundamental rights, which are presented
as core elements of practices of European border management (Isakjee et al. 2020).
Even though the role of borders in European migration policy largely follows a logic
of policing, securitization and risk management owing to its genesis through the
Schengen process, it was also an attempt to create a rule-based process of border
management. Indeed the very introduction of the term “integrated border management” (Hobbing 2005) at the EU level represents a strategy of introducing rules,
procedures and laws that should govern daily border work in compliance with international and European human rights obligations: the introduction of an “integrated
border management” concept in 2006, along with the passing of the Schengen
Borders Code (SBC) into law, the introduction of more formalized Schengen evaluation mechanisms in 2013, and the introduction of a legally binding concept of
“European Integrated Border Management” (EIBM) in 2016.
Juridical developments equally reinforced the designation of EU borders as
subject to international and European law rather than as spaces of absolute
(national) sovereignty. In particular, the pivotal judgment in the case Hirsi Jamaa
vs. Italy in 2012 by the European Court of Human Rights (ECHR) affirmed,
unambivalently, the illegality of pushbacks towards Libya which were carried out
by the Italian state. In this context, pushbacks appear as a practice contra European
liberal laws and values, which could be eliminated if border management practices
were better (see Vaughn-Williams 2015). Consequently, the solution proposed for
fixing the “problem” of pushbacks is better border management and stricter compliance with human rights, implemented through mechanisms such as enhanced
border monitoring and better training of border guards (see, for example, Meijers
Committee 2021).
Second, conceptualizing pushbacks as human rights violations does not capture
the nature of pushbacks as a violent technology for governing the border and its
consistency over time. Pushbacks have been systematically practised at multiple
border sites in Europe for a long time: at the Spanish–Moroccan border at Ceuta
State Crime 11.1 2022