A Syrian Asylum-Seeker’s Case Reframes Migrant Abuses as Enforced Disappearances

Fady roamed the bus depot in Didymoteicho, Greece, in November 2016, holding up his phone to waiting strangers, showing them a photo of his missing 11-year-old brother, Mhamad. After about an hour with no luck, he was approached by three Greek police officers. Though Syrians like Fady were frequent targets of various European authorities, Fady thought he was safe: He was a legal asylee in Germany, with a German ID card, passport, and papers to prove it. Backing him up against a wall, the officers asked who he was, where he was from. When he told them he was from Syria, they took his German ID and didn’t give it back. Then they put him in a van.

Fady repeatedly explained to the officers that he had a German passport and was legally in Greece, but the officers couldn’t understand his broken German. They took him to a detention center, where they strip-searched him in front of a female guard, took his cellphone, passport, keys, and all of his other personal effects, and then deposited him into an empty cell. The cell soon started filling up.

Later that night, Fady and about 50 other detainees were handed over by the police to a group of German-speaking commandos, armed, masked, and clad in all black. As the detainees were loaded into trucks, Fady, in German, begged to be released. One of the commandos hit him with a nightstick, first in the back, then on the left leg, leaving bruises that lasted for months. When Fady persisted, another commando unholstered a pistol and leveled it at his face.

The group was driven a few hours to a narrow strip of forest on the bank of the Evros River, known in Turkey as the Meriç River, the increasingly militarized border between Turkey and Greece. Blistered with detention centers, police stations, watchtowers, anti-tank moats, and minefields, the border zone is closed to civilians, journalists, and humanitarian organizations. (Fady’s attorneys requested that his last name be withheld for fear that the Greek or other governments could retaliate against him.)

It was the middle of the night and very cold. The commandos loaded Fady and the others onto a rubber boat, six at a time, and ferried them across the swift river. Most of the others in the group were men, but there were also women and children, some as young as 1 or 2 years old. “I was terrified,” Fady told me. “I couldn’t swim. I still can’t. I thought we were going to capsize and drown.”

As the group was shuttled across the river, the commandos beat anyone who looked at them, finally leaving all the detainees on the muddy riverbank in Turkey. Stranded in the cold, Fady and some of the others scrambled up through the thick poplar and willow brush and began walking through the forest, searching for help. That night, for the first time in his life, Fady felt a yanking pain in his chest as he stumbled over rocks and puddles, snapping past branches, pressing aimlessly on into the unknown. “It was heartache, a pain that is very, very, very painful,” Fady said. About 90 minutes later, the group was picked up and arrested by Turkish soldiers. It was the first night of a three-year ordeal: failed attempts to cross back into Europe, detention, privation, and neglect from the European authorities who had already pledged to protect him.

The yearslong havoc his life was thrown into — illegal deportation, confiscation of his documents, and lack of protection or even recognition under the law — amounts to what Fady’s lawyers claim is an enforced disappearance. It is a novel legal argument that his attorneys are currently presenting before the United Nations Human Rights Committee, an effort to bring attention to the series of abuses he and other asylum-seekers suffer. “Framing migrant detention in unknown places as enforced disappearance is important because it highlights the egregiousness of these crimes,” said Itamar Mann, an associate professor of law at the University of Haifa and legal adviser at Global Legal Action Network, a nonprofit that pursues legal action to promote accountability for human rights violations.

Amanda Brown, a legal researcher for GLAN and lead author of the complaint submitted to the Human Rights Committee, pointed out the importance of how “pushbacks need to be understood as a racial project,” in that they keep nonwhite people from accessing Europe. She noted that the Greek officers at the bus station didn’t take Fady’s ID until they learned that he was Syrian. Brown added that calling a migrant “missing” simply doesn’t capture the gravity of the offense: “Using ‘disappeared’ puts the onus on the state.”

I asked Fady if he felt like he had been disappeared during those three years. “That was exactly what it felt like,” he told me. “I felt like I didn’t exist, that I was nothing.”

In the three years after the pushback, Fady would be stuck in legal limbo, lost in a foreign country without any documentation, unable to return home to his legal residence in Germany, still desperately seeking to find his young brother. He tried 14 times to return to Greece: 11 attempts at crossing back over the Evros River, once at a more remote land-crossing, and once by sea. During each of these 13 attempts, he was subjected to summary expulsions by Greek and Turkish officials, during which he was repeatedly detained, beaten, threatened, and robbed.

His experience is not unique. A report from the Border Violence Monitoring Network found that 85 percent of the nearly 900 people whose testimonies appear in the report, all of whom suffered similar pushbacks, were subjected to torture or to inhuman or degrading treatment by border guards.

After Fady’s fourth attempt, he considered heading back to Syria, but his parents, especially his mother, warned him that it was too dangerous. His attempts to find work and help from the German consulate came up empty. Eventually, in exchange for room and board, he spent a month cooking and delivering meals for a local charity, but Turkey offered him no refuge or stability.

Earlier in the year, in a bid to stem the tide of refugees into Europe, the European Union and Turkey signed an agreement that saw the EU pledge to pay 6 billion euros in exchange for Turkey taking refugees, mostly Syrians, from Greece. Human rights groups objected to the deal: As Fady and other asylum-seekers’ cases demonstrated, Turkey was not a safe place for refugees.

Fady, for his part, kept trying to return to Europe. On his 14th attempt, he made it into Greece, but he still struggled to find safety and security and, once he made it to Athens, convince authorities of his legal status. At the German consulate, officials were negligently slow to reissue his visa. His precarious existence dragged on: Fady slept rough, found a squat, struggled to find food, and worried about his missing brother. At one point, he was hospitalized after a xenophobic attack left him with a broken jaw and a stab wound in his leg, requiring dozens of stitches.

By pressing Fady’s case before an international body, his lawyers hope he can win justice: not least, remuneration, but also a basic recognition of what happened to him from the powerful states that took years of his life and inflicted staggering pain. “I want them to know about what happened at the borders with the refugees and immigrants,” Fady said. “I want them to know about what the commandos do to them and how they treat them.”

The pushbacks Fady experienced at the hands of Greek officials and German commandos are an increasingly common tactic of keeping migrants and refugees out of southern and eastern Europe. In 2019, the U.N. high commissioner for refugees wrote that the agency “remains seriously concerned over continued allegations of ‘push-back’ (informal forced returns), which appear to affect hundreds of third-country nationals summarily returned without an effective opportunity to access procedures or seek asylum.” The U.N. was almost certainly grossly undercounting the number of pushbacks: Independent watchdogs have recorded tens of thousands of such events in southern and eastern Europe. In November 2019, Turkey’s Ministry of the Interior reported that Greece pushed back 25,404 migrants just in the first 10 months of 2019, though the figure is difficult to corroborate.

The commandos assisting the Greek officials are also a common sight — and may be members of the EU’s border enforcement agency, Frontex, which is increasingly involved or complicit in pushbacks in both Greece and Croatia. In 2010, Frontex began deploying Rapid Border Intervention Teams along the Greek-Turkish border. (Neither Frontex nor various Greek agencies replied to requests for comment on this article.) A spokesperson for the German Federal Ministry of the Interior, while explaining that they could not comment on individual cases, said that “the German Federal Police supports the Greek authorities to protect the Greek border.” German officers, the ministry said, “comply with German, European, and international law.”

Last March, European Commission President Ursula von der Leyen referred to the Greek border as “our European shield.” Turkey has also become something of a shield to Europe, blocking hundreds of thousands of Syrian refugees last year. Not only has the Turkish “shield” consigned fleeing Syrians to persecution and death, Turkish border guards have directly killed hundreds.

Estimates of the number of migrants who die while trying to cross borders are always complicated to nail down. It’s even harder to count the disappeared. In just a five-year span between 2014 and 2018, the Associated Press counted 56,800 migrants who had died or been disappeared worldwide.

Valentina Azarova, a legal advisor for GLAN and one of Fady’s attorneys, described the Evros-Meriç border region between Turkey and Greece as “a death trap” for migrants, explaining that it epitomized the “weaponization of the border.” Médecins Sans Frontières called EU-supported Greek aggression against asylum-seekers “some of the most restrictive and punitive measures against people seeking protection in the world.” Given these deliberately imposed dangers of the Evros-Meriç border, the illegal deportation and the repeated pushbacks, Fady’s attorneys saw that a novel legal framework was necessary to capture the horrors he suffered as well as state culpability. While historically enforced disappearances have been understood to be committed by authoritarian regimes, GLAN attorneys argue that border violence itself has acquired “a fundamentally authoritarian aspect.”

Enforced disappearance is a legal term of art that consists of three elements. First, it is a deprivation of liberty; second, the act that deprives liberty is carried out by state authorities or those authorized by the state; and lastly, the act is followed by a refusal to acknowledge the fact or concealing the fate or whereabouts of the disappeared. The definition comes from Article 2 of the International Convention for the Protection of all Persons from Enforced Disappearance and Article 2 of the Inter-American Convention on Forced Disappearance of Persons.

Traditionally, such enforced disappearances referred to acts of violent dictatorial repression. Legal scholars, though, have begun to argue — and in Fady’s case, are taking up the argument in court — that the definition of enforced disappearance applies to a host of strategies by certain states to halt migrants at international borders. In the migration context, arbitrary detention and the stripping of the protection of the law, as well as denying access to asylum procedures, are also key elements in understanding the notion of enforced disappearance.

As Azarova explained, in Fady’s case, the “black-ops and clandestine nature of the violations,” lack of paper trail, and concealment of facts, as well as the denial of justice and the breakdown in the rule of law, cumulated into an enforced disappearance. Ayten Gündoğdu, an associate professor of political science at Barnard College who has studied enforced disappearances, came to the same conclusion: “When I read this case, it seems like a straightforward case of disappearance.”

Pushbacks are not isolated to Europe. In the late 1980s and ’90s, tens of thousands of Haitians were pushed back as they sought asylum in the United States — a practice blessed by the U.S. Supreme Court in 1993. Many of the pushbacked Haitians were temporarily detained in Guantánamo Bay. Australia has been turning boats of asylum-seekers away for years, and Thailand pushes back Rohingya refugees. In Europe, many of the people summarily expelled from Italy end up in dangerous detention centers — or even in slavery — in Libya.

Though the United States is not a signatory to either convention establishing the definition of enforced disappearances, the emergence of the legal label to address border and migration abuses is shining a new light on former President Donald Trump’s harsh immigration enforcement policies. Some scholars and activist groups claim that the Department of Homeland Security is disappearing migrants at the U.S.-Mexico borderlands. In just the last year of Trump’s rule, more than 300,000 migrants and asylum-seekers were summarily expelled from the United States, often into dangerous northern Mexican border towns where they face kidnapping, robbery, rape, death, and sometimes disappearance.

The Migrant Protection Protocols, or “Remain in Mexico” program, a Trump-era policy that forces asylum-seekers to wait out the proceedings of their cases in Mexico, pushed around 70,000 asylum-seekers outside U.S. jurisdiction, subjecting them to what can amount to bare existence in ramshackle refugee camps. (The Biden administration suspended new enrollments into the program.)

Trump’s family separation policy has garnered the most attention for the application of the enforced disappearance label. Alonso Gurmendi, an assistant professor at Universidad del Pacífico in Lima, Peru, who specializes in international humanitarian law, said that enforced disappearances occur not only when the government deliberately conceals the fate of a disappeared person, but also when they lose track of them through “refusal or incapacity” to locate them, such as what happened with at least 506 children still separated from their parents.

“The Trump administration’s family separation policy violated several international human rights norms and U.S. treaty obligations,” Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, told The Intercept. The zero-tolerance policy under which the children were separated, Dakwar added, and “especially the failure to fully acknowledge the fate or whereabouts of migrant kids, coupled with the failure to reunite families, may have also contributed to cases of enforced disappearances as defined under international law.”

Other experts have also expounded on the broader application of the term: “The family separation policy,” wrote Grażyna Baranowska, a Polish expert on enforced disappearances, “meets all the elements of enforced disappearance.” Baranowska also noted that family members are considered victims of enforced disappearance, not only the direct victims: “Enforced disappearances are chosen as a means of violence precisely because they affect not only the disappeared person. The perpetrators are aware that such a disappearance has a devastating effect on the family members of the disappeared, who are purposely kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty.”

The family separation policy was implemented precisely for that reason: not to punish the children — though that certainly was an effect — but to deliver consequences to the parents. As the architects of the policy have repeatedly stated, the policy’s aim was to deter parents, and all migrants, from trying to seek refuge in the United States. “Border violence,” said Mann, the GLAN legal adviser, “often amounts to a systematic attack against families.”

One of the hopes Fady’s attorneys have for his lawsuit is that a ruling from the U.N. Human Rights Committee could end the “denial charade,” as Azarova put it, that Greek officials are still engaged in: denying that they conduct pushbacks and disappearances. Article 18 of the enforced disappearance convention stipulates informational remedies — ordering authorities to name the culpable authorities and enumerate time, place, and location of the disappearance — to families of people who have gone missing. Mann said, “Framing these losses as enforced disappearance will help families get a measure of closure.”

Gündoğdu, the Barnard expert on enforced disappearances, said that any kind of restitution is going to fall short for Fady, but it is not unimportant. “None of the legal remedies will be sufficient to address what Fady went through,” she said. While the complaint to the Human Rights Committee asks for redress for specific pecuniary damages — 13,227.63 euros, a total that includes 150 euros in cash stolen by commandos and 119.62 euros for heart medication — it also implies an admission of wrongdoing on behalf of the state. I asked Fady what recompense he sought for his suffering. His answer was simple: “Finding my brother.”

What Fady’s lawyers are describing as a disappearance to international authorities began with an undisputed one: that of his brother. Fady originally fled Syria after the Islamic State took over his native city, Deir al-Zour, one of the first Syrian cities to fall to the extremist militant group that seized control of a swath of the Middle East. Fady described laws imposed by the Islamic State as “very strict and weird.” They completely outlawed smoking, for instance, and one day, Fady was caught smoking by fighters inside one of the gas stations his family owned; they burned his left forearm multiple times with cigarettes. He sent me a photograph of about a dozen concentric burn scars, still clearly visible more than six years later.

Fady had been married only two months at that point, in early 2015, but he decided that if he stayed in Syria, he would be forcibly conscripted or killed. “The situation on the ground was very, very bad,” Fady said. “Our lives became meaningless.” He escaped by foot to avoid blockades and, a few days after he had crossed the border into Turkey, called his family to tell them he had left. A week later, his older brother followed.

As things deteriorated in 2016, Fady pressed his family to send his 11-year-old brother Mhamad toward Europe. The Islamic State had been recruiting young men and forcing them to fight. “I made the decision for my brother to leave,” Fady told me. Through a network of guides and smugglers, Mhamad fled Syria, crossed Turkey, and on November 22, 2016, made it to the bus station in Didymoteicho. It was Mhamad’s last known sighting. Six days later, having flown from Munich, Germany, to search for Mhamad, Fady was accosted by the Greek police.

That was the first of Fady’s 1,266 days of being stripped of his identity, his liberty, and his security — of being disappeared. “It was a horror movie, to be honest,” Fady told me. “It is hard to express or talk about it. I was constantly filled with horror and fear.” Self-harm became a focus: “I tried to cut myself or get on some roof or something and throw myself off.” The whole time, on top of the physical pain and unending anguish, he still worried about his younger brother. “I know nothing about him,” he said. “I was always thinking about him. I still am.”

In early January, Fady’s wife made it to Germany after a four-month ordeal of her own, which included two pushbacks from Greece, multiple robberies, threats, and leering from border guards, as well as detention, desperation, and constant stress. They hadn’t seen each other in over five years. Though he is relieved that she’s safe, Fady said, his family is still suffering. That’s what a disappearance does: It persists, resists closure. It’s a crime that, according to one scholar, “multiplies the horrors of violence.” In Argentina, the mothers of children who were disappeared by the military dictatorship in the late 1970s, almost a half a century later, are still looking for their children.

“It is something that feels like an unending disaster,” Fady said of his brother’s disappearance. “I made the decision for my brother to leave,” he said, noting that he had urged his family to send his brother into his care in Europe. “I told them to send him out of the country and —” Fady sighed, struggling to finish his sentence.