Protection for the persecuted as a lesson of history

One person seeks protection, another can offer it. Or does one person claim asylum and the other have to provide it? Is asylum an act of mercy? Or a right? The rising numbers of people fleeing to 
Europe are forcing us to clarify these questions. This subject leaves no one unmoved. The fate of refugees can tomorrow overtake those who grant them refuge today.

Escape and expulsion are an integral part of the history of peoples and states. Today, however, the dialectic between refugee and host country is different, more difficult than it was in the historical past. Asylum was considered an act of generosity on the part of sovereign princes. Those who received it were protected against “sylon”, which meant rape and pillage in ancient Greek. The Egyptians also granted refuge to potential victims, as did the Hittites in Asia Minor. The Old Testament says that Moses should have chosen “free cities” as places of refuge. And the Prophet Mohammed found sanctuary in Medina.

Temples, churches and monasteries – these places indicate the religious foundations of asylum as a heavenly counterforce to earthly rule. Historically, asylum also offered refuge to outlaws. It saved offenders from the consequences of blood feuds and made court proceedings pos­sible – a first step towards the modern era.

Today, we speak of persecution and inti­midation rather than rape and pillage. Nonetheless, asylum has also retained its criminological aspects. Society’s increasing mobility following the advent of the railway and the steam ship made it pos­sible for criminals to move abroad more easily. Rules had to be agreed on who should be taken in and who should be extradited. The transnational context that determines today’s asylum debate and the need for inter­national and supranational ­solutions existed long before the foundation of the Euro­pean Union.

Nevertheless, we had to wait until the 20th century and geno­cide, the terror of the National Socialists and devastating wars before the human rights and individual rights aspects of asylum emerged. The global catastrophe of the Second World War made millions of people stateless. The tra­gedy that many in need did not find any­where to go is reflected in the origins of 
the appropriate article in Germany’s ­Basic Law. Never again were asylum ­seekers to be reduced to the status of supplicants. That is why the following has been written into the Basic Law since 1949: “Persons persecuted on political grounds shall have the right of asylum.” This wording was long disputed. Shouldn’t there be a more precise definition of who “persons persecuted on political grounds” actually are?

The liberal position proposed by the SPD politician Carlo Schmid won out. In prin­ciple, it was based on the traditional characteristics of asylum, on protection as an act of state generosity. Schmid’s argument against those who pointed out the dangers of abuse has become legendary: if you want to be generous, then you have to take the risk of misjudging people’s character.

Therefore, Germany’s modern, constitutionally anchored basic right of asylum, a global rarity in this form, hazarded the consequences of error right from the start. Since it promised the right to entry and the provisional right to remain in the Federal Republic’s increasingly developed welfare state, the asylum debate increased during the 1970s and 1980s as the numbers of applications rose, while the proportion of those recognised remained the same. In 1993, the necessary two-thirds majority was found in the Bundes­tag to amend the Basic Law. The wording was kept, but limited by the idea of “safe third countries”: refugees entering Germany from states where they effectively face no danger can be sent back without their applications being considered.

This so-called asylum compromise has remained a subject of criticism until today – not least, because it clashes with the humanitarian right to protection. The question has also been raised about asylum’s relationship with the inviolable protection of human dignity, which is guaranteed by Article 1 of the Basic Law. The Federal Constitutional Court ruled in favour of parliament and declared the changes constitutional. It said that although the basic right of asylum is also influenced by aspects of human dignity that does not prevent legislators from removing it if they wish.

The national administration of the right of asylum is increasingly merging into the ­international and European legal superstructure. The central element here is the Convention relating to the Status of Refugees, which prohibits sending persons who have been personally and specifically subjected to persecution back to the countries where they were persecuted. The United Nations Convention against Torture and the European Convention on Human Rights oppose deportation to states in which there is a threat of torture. Above all, however, it is the EU that has been pressing ahead with the development of a common asylum system since The Hague Programme of 2004. In addition to individual guidelines covering minimum standards of protection for refugees, this process has been characterised by the Dublin Regulation, which is meant to ensure that every asylum application is ­examined thoroughly by an EU member state – by the state in which the refugee first entered the EU.

It is clear the present streams of refugees and migrants are beginng to shake the Dublin Regulation. At the same time, EU member states remain obliged to offer protection when those concerned are threatened with harm in their home countries. Europe, that union of generosity, must now agree how generous it wants to be – and where its borders should run in the future. In the end, this could lead to a levelling of the standard of protection and support for asylum seekers. Whether a new asylum compromise is required, which possibly means an amendment to the constitution, remains uncertain. ▪