I’m going to talk today more about prudence than about law. In part is this because I am discouraged about the current refugee situation – not despairing, but leaning pessimistic, which is uncharacteristic for me. The world is more dangerous, governance structures are weakening, conflict is more widespread and vicious, and in this changed climate I fear that increasingly ambitious legal claims are counterproductive. I also draw some discouragement from Europe’s response to its current refugee crisis, where a welcome and praiseworthy humanitarian impulse was initially ascendant, but may well have been implemented in a way that has made the problem worse in its early stages – without a vision of how to build a stable long-term response. To overcome our current problems – not just regarding protection, but regarding the underlying conflict and persecution that produce the need for protection – we are going to have to rely more on flexible, messy policy tools and not try to carpet the whole arena with legal obligations. My comments, I should add, are largely descriptive rather than prescriptive – drawing on 37 years of experience in the immigration field, as a scholar and also as a government official.
So – to begin. I hope many of you have seen the movie “The Imitation Game” – the true 1940s story of mathematician Alan Turing and the Allied quest to crack the codes used in the Nazis’ Enigma Machine. I’m going to use that film, in essence, as the text from which I’ll derive a subtle and difficult point about immigration and protection – a lesson that you may well resist. In the film, after months of effort and successive disappointments, the assembled team of brilliant minds finally cracks the Enigma code, decrypts several initial messages, and initially learns that Nazi naval forces are massing to attack and sink a large Allied convoy. Having only hours to act, they make excited plans to alert the fleet and save hundreds of lives.
Then a sudden turning point – a moment of painful but vital insight. Turing tells them they must send no alert, take no protective action. If the convoy diverts now, he explains, the Nazis will know that the Enigma code has been broken, and the Allies will lose future information on Nazi war plans. The team reluctantly accepts this conclusion, but the pain is magnified because, in the movie version, one team member’s brother is aboard a doomed ship.
It’s not that the Enigma decryption could never be used to save lives. The movie makes this clear. But its use must observe limits. It will have to be used strategically and selectively, in order to preserve its long-term potential. Inescapably some threats will have to go unaddressed – immediate, known, painful, lethal threats. The Allies followed that course, and they of course wound up defeating Hitler’s Germany.
Now what on earth does the Enigma Project have to do with immigration and refugee policy? It hit me a few weeks after seeing the film: immigration and particularly refugee protection must be understood to have a similar, paradoxical, and imprecise limiting principle.
Secure relocation across a border in another country – a stable and reasonably well-off country – can do wondrous things to provide protection against persecution and conflict – and, for that matter, against discrimination, against poor education, against poverty. But it cannot provide such protection or enhancement for all who might seem to have a just claim. This limit has nothing to do with spilling secrets. It is a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society, about the material capacities of receiving states, and, most importantly, about preservation of the political space needed to minimize backlash and keep a healthy level of relocational opportunity alive. It is a matter of finding or restoring a viable equilibrium in order to sustain the needed societal commitment to protection over the long run. Enlightened leaders work to create conditions that will place that new equilibrium at as high a humanitarian threshold as possible, even as they regularly incur sharp criticism for failing to use protection tools to the maximum of their internal logic.
An example, perhaps an imperfect one, can be found in President Bill Clinton’s actions on the refugee front during his early presidency. Controversially, he continued for a couple of years the senior President Bush’s Haiti interdiction order, which afforded no screening of persecution claims by people intercepted and returned, even though Clinton had been harshly critical of that order during the election campaign. Intelligence had suggested that a sudden flow of Haitian boats to Florida could materialize within days after the inauguration. Clinton, I believe, judged that such arrivals would crowd out and render impossible a host of other planned initiatives.
The Supreme Court’s decision a couple of years later upholding the legality of interdiction – in my view a correct reading of the treaty – did not mean the end of challenges to that program. Instead the challenges had to take place in the arena of policy argument, not judicial doctrine. And policy challenges definitely continued, playing on the undeniably guilt-inducing tension between Clinton’s protection objectives and the immediate impact of interdiction. Ultimately this opposition persuaded the President to modify the practice. More importantly, it led him eventually to take military action that ousted the Haitian coup leaders, restored President Aristide, and thus created better human rights prospects inside that country – protection with far wider reach than a boat flow could have accomplished. Clinton’s actions also helped sustain the political space to introduce calm and sound reforms for our overwhelmed asylum program during those years, in a way that avoided overreaction and ultimately headed off drastic limits on asylum that came close to enactment as part of the harsh 1996 immigration acts.
To sum up, Immigration’s Enigma Principle is this: Protection must observe limits, sometimes painful and counterintuitive limits, in order to maximize protection strategically. But a corollary also applies. The Enigma analogy must not be seen as an excuse for inaction – that is, for nations to refuse to use protection tools at all. During World War II, Enigma was often used to warn or defend potential victims. The whole point of those early choices to withhold action, painful as they were, was precisely to maximize the long-term capacity to protect.
The Enigma Principle is not just a matter of short-sighted or unsympathetic government leaders. It is a structural feature that constrains even the most humanitarian government leaders. German Chancellor Angela Merkel is learning this reality – I’ll say a bit more about that in a moment.
Some people might object to my Enigma analogy, because they view the refugee treaties as a broad legal bulwark against such a strategic and calculating stance. In my experience, that is an exaggerated expectation about what law can do, although the treaties, and courts applying them, certainly have played and will play an important role. The treaties do provide a fulcrum for pushing nations toward setting any equilibrium on a higher plane than ordinary policy debate might produce. That is important. But courts cannot by themselves create and sustain the real-world operational space for optimizing protection. They are most effective only if political strains are kept within manageable range, and it usually takes circumstances or actions beyond refugee adjudication – that is, beyond the direct scope of the treaties – to achieve that end.
What sorts of actions? Least controversial would be diplomacy or humanitarian intervention to end the war or persecution in the home state. We talk a lot about the need to address root causes – and that is undeniably important. But let’s not kid ourselves. Truly eliminating root causes is extraordinarily difficult and costly. As the opening decades of the twenty-first century have painfully taught us, even the commitment of tens of thousands of ground troops may not succeed – and especially not in a way that leaves behind a new governance structure that both functions effectively and protects human rights. Because root-cause corrections are so difficult, the limitation imperative often finds expression in other ways – namely, imposing restrictive conditions or detention on waiting asylum seekers as a mode of deterrence, and sometimes in erecting barriers to access, such as maritime interdiction or higher razor-wire fences.
We should remember that the drafters of the primary refugee treaties held a pragmatic outlook consistent with the Enigma Principle. They were quite sensitive to the need to observe limits on the protection pledges they were crafting. To start with, the drafters did not provide for legally mandated shelter against all harms, especially not against the risk of violence as a result of armed conflict. More explicitly, the 1951 Convention limited its coverage to persons displaced as a result of events occurring before 1951 – a dateline that in principle marked out a largely known and finite population already present in the West European countries leading the drafting effort.
More importantly (and less obviously), the 1951 Convention, though it has important guarantees against returning refugees already present, is pointedly silent about legal obligations governing access to national territory. The drafters sent clear signals that, although they were adopting deliberate improvements in humanitarian protection, they wanted to keep their protection commitments in balance with the traditional sovereign right to make deliberate decisions about inbound migration. Numerous statements by government representatives and even international organization leaders at the conference emphasized that they were not writing, and I quote, “a blank cheque.” The drafters set forth rules about treatment of people already present. They deliberately did not outlaw rejection at the frontiers of contracting states, nor did they provide a right of access to the nation’s territory. They acknowledged that it would be best to do more than the treaty would require, including access for and acceptance of new asylum seekers when possible, but they left the “more” in recommendations appended to the treaty and meant to inform ongoing policy decisions, not to set inflexible legal mandates.
I acknowledge, however, that critics of the “legal bulwark” persuasion may feel that they have an unanswerable refutation these days. Whatever the initial intentions of the treaty framers many decades ago, some courts, particularly in Europe, have deployed so-called “dynamic treaty interpretation” to issue rulings greatly restricting government authority to use interdiction or other deterrent measures. For example, the 2012 ruling of the European Court of Human Rights in Hirsi Jamaa v. Italy imposes severe limitations on any maritime interdiction. I agree with these critics’ initial observation on this score: those courts do want to impose a more absolute understanding of the logic of protection and consequently squeeze out most government discretion along the lines I have mentioned. But as Justice Holmes reminded us, “the life of the law has not been logic; it has been experience.” The current European refugee crisis is providing and will continue to provide a good experiential testing ground of whether legal rulings of this type impede or facilitate the achievement of a healthy, protective, and workable new equilibrium.
In that vein, I offer further reflections on the current refugee drama playing out in Europe. And here I want to build on some insightful comments from David Miliband earlier this month. As most of you know, Miliband is now the head of the International Rescue Committee, based here in New York, and he served for three years as the foreign secretary of the United Kingdom in its last Labour government. Remarking on the tragic chaos of the European response to Syrian refugees, he stated: “People want compassion and competence … [If] you have compassion without competence, then there is a danger of a backlash.” Deploy your protection tools carefully and thoughtfully, in other words, or you may do more harm than good. It’s not quite the Enigma Principle, but it reflects similar thinking.
In that light, let’s reflect for a moment on Germany’s role over the last several months in responding to the plight of Syrian refugees. As a starting point, one has to give Germany, and particularly Chancellor Merkel, high marks for compassion. It was a genuine surprise when she staked out her resolutely compassionate humanitarian stance in August. She indicated that Germany would accept very large numbers of Syrian refugees and would not impose the usual Dublin Convention rules that treat asylum seekers as the responsibility of the European state where they first entered Europe. Whatever Europe eventually does to overcome its current disorganized crisis, the result will hold much more for the welfare of Syrian refugees than if Merkel had not taken that position. She has moved the world community’s response to a higher level of humanitarian action. She absolutely deserves considerable credit and praise for that achievement.
Nonetheless, the manner of announcement and the subsequent steps may have unnecessarily aggravated the risk to refugees and the harm to interstate relations – in ways that might have been avoided had more careful and competent thought been given upfront to actual implementation.
First, some of the problem may derive from unexamined assumptions that Syrian refugees are going to stream in great numbers anyway. Observers hear about barrel bombs and ISIS atrocities in Syria and think: of course, the desperation is so great that everyone would flee. Dozens of commentators and even many government officials repeat this mantra. But as much solid scholarship has cautioned, including many pieces published in the International Migration Review: simple push-pull analyses are simplistic. Migration is a far more complex and intricate phenomenon. We need to look a good deal more closely at this well-intentioned misunderstanding about the inexorability of refugee flows.
Refugees are not just particles in a flowing stream. As was emphasized in a comment from the audience this morning, they are people, uprooted from normal, competent lives by extraordinary events – and they remain strong, competent actors in choosing actions that seem likely to protect their families. They look at risks at home, but they also keep shrewdly alert to the possibilities available in other countries. This is especially so in the era of Twitter and Facebook and instant communication. I recently received an intriguing email sent to supporters of the International Rescue Committee, Miliband’s organization. It recounted the 10 most frequently asked questions posed by arriving refugees to IRC staff on the Greek island of Lesbos. First question: “Where are we?” – they want to be sure they have made it to Greece and are no longer in Turkey. Then the second question: “Do you have WiFi?”
Moreover – and this is overlooked by the “inexorable flow” commentators – the current stream toward Europe is composed overwhelmingly of people who already had some form of refuge in camps and settlements in the region. In that light, what accounts for the major increase in departures this summer?
One highly important element, which has not gotten much attention in the popular press, was deteriorating conditions in the refugee camps in the region. In early 2015 the world community seemed to have lost interest in the welfare of the people housed there. UNHCR appeals for absolutely necessary funding were falling woefully short. By June, the world was meeting only 35% of the UNHCR budget needed for Syrian refugees in the region. In response, the UN was forced to make drastic cuts in food rations and basic health care facilities. The UN High Commissioner, Antonio Guterres, called the situation “beyond irreparable” and suggested that malnutrition, illness, and otherwise deteriorating conditions in the camps were prompting the then more modest uptick in dangerous Mediterranean crossings. This was a gross failure of both compassion and competence.
And then came Chancellor Merkel’s August announcement that Syrian asylum applications would be accepted in Germany – without the Dublin limitations. Germany, the economic powerhouse of Europe. Offering what? A status that would provide for full security, employment, education for the children. No wonder tens of thousands, marooned in the resource-starved camps, began moving northwest in late summer. Refugee flows are not products of nature – they are dynamic, influenced by many calculations.
I am also convinced that Syrian refugees have a very well-honed appreciation of the Immigration Enigma Principle – that protection must and will observe limits – though they of course would not articulate it that way. Germany’s openness, they perceive, cannot last – at least not in the expansive form suggested by the Chancellor’s August remarks. Signs of reaction and political backlash are already virulently present, in Germany and in many parts of Europe and indeed, sadly, in the United States. Having glimpsed that open door, Syrians – and also other nationalities – want to get to Germany before the opening is narrowed or closed.
Another unfortunate feature of the German offer as it was originally manifested is its implicit rules about who will qualify. As one Greek professor commented to an American group of scholars visiting Lesbos: “Why do people have to walk 3,000 kilometers? … Only the fittest and the strongest will make it.”
If that self-help requirement, crudely, was Germany’s default method for limiting the intake, we can say many things about how it scores under the competence criterion. First, it is not working very well to keep numbers down. Second, it is both capricious as a selection principle and potentially quite cruel, even lethal – because the travel is not just a matter of walking. The trip usually involves treacherous boat rides and sometimes life-threatening packing in the back of a truck. Third, and of deep importance on a regional level, it is hard to imagine a process more likely to exacerbate relations with the other European states along the route – and thereby push politics toward an exaggerated backlash. One must not absolve those other states, particularly Hungary, of blame for harsh and inhumane responses. But one can understand a serious level of frustration on the part of nearby governments with Germany’s policy, which was announced without much prior consultation or warning, despite its predictable massive impact on transit countries. And so we have had those astounding scenes – in countries that were not the intended destination – of fatigued masses trudging along one lane of a superhighway, or being herded in thick columns through pastures and cornfields.
Germany’s approach reflects a sharp difference in the instinctive ways in which Americans and Europeans initially think about responding to refugees. Europeans focus on a reactive asylum model, adjudicating claims by people who arrive on their own power. American refugee policies have many shortcomings, but once activated to address a refugee crisis, we do tend to think, rather quickly, of a wider array of proactive policy tools for response. Historically this means not only financial support to first-asylum settlements, but also a major focus on organized resettlement programs, flying people from the region of origin after a selection process. We don’t typically make them walk across a continent.
We are now seeing the beginnings of policy changes in Europe that build on some of these lessons from the last few months, in at least partial fulfillment of the Enigma Principle – or, in Miliband’s terms, as a way of infusing more competence into the compassion. First, the neglect of funding for the camps in the Middle East region is being remedied. The EU and other donors are stepping up to meet UNHCR funding needs more completely. Perhaps, if sustained, this change will reduce the numbers leaving the region. There is also apparent movement, by European powers and the United States, to take more vigorous military action to address the root threats inside Syria. That too is welcome, though the obstacles to success are enormous, and we certainly cannot expect any early impact on refugee flows.
Moreover, a Brussels summit meeting last weekend reported steps to set up new reception centers in various places along the main routes to Europe, especially in Greece and the key Balkan states. This policy change may someday bring Europe to something like an Orderly Departure Program, or ODP, a Vietnam analogy which many in this room may recall vividly. The departures would start not within Syria, but from camps in Turkey, Lebanon, or Jordan, or elsewhere along the transit route, where refuge-seekers would be interviewed, adjudicated and, if accepted, assigned to a receiving country in the EU. Indeed, the whole situation might have unfolded with less confusion and trauma if Germany had channeled its compassionate impulses from the beginning toward an ODP-like program.
A viable ODP, however, would have to be bolstered with systematic action to slow or block alternative migration routes; the Brussels report obliquely acknowledges this much. I suspect that government planning did not turn in that direction at first because it is not clear how much room is left for such steps after European Court rulings like Hirsi Jamaa. Tragically, expansive judicial requirements meant the situation had to become much worse, in terms of deaths and drownings, worsened relations among European receiving states, and the strengthening of virulent anti-immigrant parties, before European leaders would start thinking seriously along lines that might promote orderly departure and a more manageable process.
I want to be clear. I do not favor access barriers or harsh reception conditions. But in my experience, government leaders – even or perhaps especially well-intentioned government leaders – sometimes find them necessary as they struggle to head off backlash that can predictably lead to far more troubling measures. Therefore opposition to barriers is most productive, not when it talks in the inflexible language of legal absolutes, but when it is policy-based, context-specific, cognizant of the wider political environment, and focused on alternatives that seek to address the government’s genuine worries while nudging toward the protective side. As Reinhold Niebuhr reminded us: “[T]here is no purely moral solution for the ultimate moral issues of life; but neither is there a viable solution which disregards the moral factors…There are no simple congruities in life or history.”
We will see whether the troubling political reactions building in Europe over the last few months cause some tempering of judicial logic and greater realism about the need to observe carefully implemented limits, while still holding true to the protection core of refugee law.
 Sale v. Haitian Centers Council, 509 U.S. 155 (1993).
 United Nations Convention relating to the Status of Refugees, done July 28, 1951, 189 U.N.T.S. 137.
 The recommendations appear in the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (Appendix to the 1951 Convention).
 Application no. 27765/09, Eur. Ct. H.R. 10 (2012).
 Oliver Wendell Holmes, The Common Law 1 (1881).
 Adam Taylor, David Miliband: The refugee crisis is here to stay, Wash. Post, Oct. 5, 2015, https://www.washingtonpost.com/news/worldviews/wp/2015/10/05/david-miliband-the-refugee-crisis-is-here-to-stay/ (emphasis added).
 Matthew Holehouse, Germany drops EU rules to allow in Syrian refugees, The Telegraph, Aug. 24, 2015, http://www.telegraph.co.uk/news/worldnews/europe/germany/11821822/Germany-drops-EU-rules-to-allow-in-Syrian-refugees.html.
 Tyler Jump, What refugees ask when they arrive in Europe, Oct. 16, 2015, https://medium.com/uprooted/what-refugees-ask-when-they-arrive-in-europe-e09c72c80ea9#.67elo3y59.
 Harriet Grant, UN agencies ‘broke and failing’ in face of ever-growing refugee crisis, The Guardian, Sept. 6, 2015, http://www.theguardian.com/world/2015/sep/06/refugee-crisis-un-agencies-broke-failing.
 Elizabeth Ferris, They just keep on walking: Syrian refugees in Greece, Brookings Blog, Sept. 17, 2015, http://www.brookings.edu/blogs/order-from-chaos/posts/2015/09/17-syrian-refugees-greece-interviews-ferris.
 Angelique Chrisafis, EU and Balkans agree plan for 100,000 places in reception centres for refugees, The Guardian, Oct. 26, 2015, http://www.theguardian.com/world/2015/oct/26/eu-and-balkan-leaders-agree-migration-plan.
 Reinhold Niebuhr, The Irony of American History 40, 62 (2008 ed.).