Ernst Hirsch Ballin: ‘The ability to see ‘us in them’ is decisive for the whole issue of migration’
by Narin Idriz and Pascal Messer
source: Hilko Visser
He has been a state councillor, a politician, the longest serving minister of Justice in the Netherlands since the early 19th century, president of the T.M.C. Asser Institute, centre for International and European law, but above all, he is a legal scholar and a jurist. Later this month, Ernst Hirsch Ballin will say farewell as a professor of Human Rights Law at the UvA. His farewell seminar at the Asser Institute will focus on Global Migration, a topic close to his heart. We interviewed him prior to the seminar. Ernst Hirsch Ballin: “Sadly, there is the widespread misconception that you can take wind out of the sails of populist parties by not speaking out clearly against their ideas”.
When we speak with him, over a Zoom call, Ernst Hirsch Ballin looks relaxed. At the wall behind him, we see a 1930’s litho by French Belle Epoque caricaturist Adrien Barrère, called ‘Passing the Bar’. Underneath it, a full bookcase with neatly arranged stashes of colourful books and a small bottle with fragrance sticks. He has not slept well, he says. Later in the conversation, he will hint at having sleepless nights over the crisis in Afghanistan, an ‘inconceivable tragedy’.
Ernst Hirsch Ballin has extensively published and engaged in academic and public debates in the field of migration. He has written on migration law and policy, on the human rights of asylum seekers and migrants, and on issues of civic integration and citizenship. In short: he has explored issues covering the whole chain of migration, culminating in novel ideas on migrants’ obtaining of citizenship.
But his engagement was much more than an academic endeavour. As a Minister of Justice, Ernst Hirsch Ballin has contributed to the shaping and implementing of both Dutch and EU policies on asylum and migration. The topic has never left him. After his term of office, he continued writing and speaking about it – always with human rights law as an anchor point.
You have worked on the theme of asylum and migration, both as an academic and as a Minister of Justice. How has the responsibility of managing the migration and asylum policy of a country affected the way you see these issues?
“It certainly has affected me, profoundly. It has contributed to my understanding of migration as a topic of legal development, and of legal research, of course, as well.
Maybe I should say something about my own background. I am the son of a refugee. My father came to the Netherlands as a refugee from Nazi Germany, after having survived the winter in the concentration camp Buchenwald in 1938-39. He was deported before the extermination programme started, but he suffered a lot there, and it damaged his health. At the time, the policy of the Nazis was to pressure the Jewish German nationals – who were already reduced in their citizenship – to leave the country, forcing them to leave behind most of what they possessed.
Back then, there were many people in the Netherlands who said: ‘We can't take in too many of ‘these people’, and so on. But my father was among the few Jewish refugees from Nazi Germany that were admitted. And, with the help of some good people, he managed to survive the Nazi occupation. One of these good people was a young Roman Catholic woman from Amsterdam, with whom he would marry after the war. And that is why I am here today (laughs).
I always thought that I grew up in Amsterdam in a very protective environment. And of course, my parents did protect me. With hindsight, however, it was not a protective environment as such. Because of my father’s experiences, we, as a family, always had this sense of being in danger. Being in danger as humans, just like all other people have felt who went through an ordeal like Buchenwald. I now realise that this sense of danger was always present throughout my youth in Amsterdam, every day, but without me, young as I was, being able to fully grasp it yet.
I think my background has given me an awareness that all these essentialist criteria that we use for distinguishing between human beings, – criteria like ‘origin’ or ‘ethnicity’, are just racist concepts that have no scientific validation, whatsoever.
However, they continue to be a ground for discrimination. We have racism without races. Ethnicity, languages, nationality, these are all man-made lenses of distinction, like borders between states. That does not mean that states are superfluous; we need states as the commonwealths in which we arrange things with each other, under the law. But we must realise that every border has another side.
I think that this basic understanding, that I’m now able to frame by using the words ‘Every border has another side’, has been with me since my youth. And it has taught me something very profound about humanity as such. In 1968, when I was seventeen years old, we had to write a paper for our final examination at the Amsterdams Lyceum. The subject that I chose was ‘the history of human rights’, in Dutch: ‘de geschiedenis van de mensenrechten’. I think this was not by accident.
What I’ve learned in the 8 ½ years of being a Minister of Justice is, in the first place, how important it is to see both the necessity of bringing order in processes around migration, but also to not get caught up in the prejudices of the substantiation of borders. With the word borders, I mean not only state borders, but also language, nationality, and other borders. That is why we framed our policy as being ‘strict but humane’.
I experienced how difficult it is to always keep in mind the relativity of man-made distinctions between human beings, and I especially learned how much effort and convincing power is required to convey this message to those people – and there are many of them – who do not have the privilege of having had such experiences themselves. Although it does not make life easier, and it is something that you have to deal with, I now call it a privilege, that I have been able to learn the relativity of these artificial distinctions between human beings. I think that as a Minister, that is what I tried to learn and put into practice, and which also helped me to better understand the subject of migration and migration policy.”
With hindsight and years of additional experience, do you have regrets about your political career? Is there anything that you would have done differently as a Minister?
Ernst Hirsch Ballin’s eyes show a mischievous glint when he retorts: “How many hours do we have for this conversation?!” He laughs before he folds his arms before his chest and continues, serious again. “As far as the main lines of what I did in this capacity, I have no reason for regret. I know what my standards were, and I have no reason to regret these. However, something that I do regret, is that I had to, of course, agree to a lot of compromises during my political tenures. In my view, compromises are acceptable if they are a step in the right direction, and not if they are in the wrong direction. However, during my third and last period as Minister of Justice, the situation became more complicated in this field.
Nebahat Albayrak, who was Deputy Minister of Justice at the time, and I were convinced and determined to continue with our migration policy, which was strict and humane. We made a lot of progress. We concluded important directives and regulations in this field in the Council of the European Union, which was an important part of our work. I was happy and contented with having the freedom to continue with these policies – so far, so good – but the support of colleagues for these and other fields of policy was already waning at that time.
With hindsight, I see that we underestimated how strong the forces were that started to emerge in Dutch politics from the right, including the far right and the populist far right, and which worked in the opposite direction. We did what we thought that we had to do, but some of the people with whom we had to work were much more inclined than we were to make compromises with the populist far right, with respect to migrants and strangers.
I now think that I should have said in a more compelling way: ‘I need your full support’. I should perhaps have exerted more pressure on my colleagues to not only tolerate our strict but humane policy, but to also give the clear message: ‘We will not accept the growing animosity towards migration and migrants’. That is one thing that comes to mind.
What I also regret, but I do not think that we could have done any better, is the incompleteness of the Common European Asylum System. The adoption of the directives that we agreed upon in the EU Council of Ministers, was an important part of our work – for the Deputy Minister, myself and for the civil servants that accompanied us in these endeavours.
We have adopted the directive on the formal aspects of the asylum procedure and, meanwhile, about the quality of the judicial function. But within the EU, we were unable to agree on how people would be received as refugees or other migrants in the member states. This was left to the discretion of the member states.
Now we see enormous differences in the quality of the reception facilities, and of the integration into society of asylum seekers. Think of Greece, for instance, and the slightly better Italy on the one hand, and, on the other hand, EU countries with better or at least acceptable quality facilities like the Netherlands. I think Germany has done an admirable job during the so-called ‘migration crisis’ in 2015, with accepting many more – both relatively and absolutely – migrants than other European member states.
Shared, comparable standards with respect to the treatment, temporary housing and integration of refugees into our society, is a cornerstone of an effective European asylum system that we are still missing. I am not blaming myself; shared standards were impossible to achieve back then, as much as they are today, but still, it is something that we were not able to accomplish.”
While there seems to be little public support for accepting big numbers of migrants in the Netherlands, last year we did see a big coalition of support from civil society and more than half of all Dutch municipalities for bringing over five hundred children from the overcrowded Greek refugee camps. The Dutch government, however, refused to do that and decided to send financial support instead. How do you see and interpret the Dutch Government’s stance?
“Well, there are two aspects at play here. I think there is a lack of clarity and a lack of courage to speak out clearly about political principles, which has pervaded the political system in the Netherlands, and other countries as well.
I was among those who have not been frightened to speak out against the populists. But too many people nevertheless do not dare to speak out, because they are afraid to lose voters to the populist parties. That is, I think, an important explanation why the current government coalition did not dare to assist these children, - notwithstanding the fact that, indeed, there was a lot of public support for assisting and resettling minors from the Greek islands.
I think we could also partly see this decision as political hard play within the Dutch government coalition itself. The largest party within the coalition, the VVD (a conservative-liberal party - ed), in particular, is always afraid to lose voters to the far right. This fear spills over into other political parties, including parts of the Christian Democratic political party, (Christen Democratisch Appèl, CDA, ed), of which I am a member. Support for Greece, upon which they agreed, is certainly a good thing, but not enough.
Sadly, there is the widespread misconception that you can take wind out of the sails of the populist parties by not speaking out clearly against their ideas. I think it is the other way around. By more or less legitimising what the populist parties are saying, you are playing into their hands. Meanwhile, the political discourse in the Netherlands has been reframed, not only by populist parties, but also by the people who are trying to accommodate part of the populist’s views into their own dealings.
And this is not something happening amongst politicians only. There are also people with an academic education who present themselves as ‘having a nuanced view’ on these subjects and who ‘understand’ the misgivings with respect to them. Of course, we have to understand, and I want to stress this, that part of this understanding is legitimate; there are people in the Netherlands who are vulnerable and who are living in a precarious situation and cannot find affordable houses. These are serious problems. But it is not justified to put a blame for these problems on migrants and migration. We have to be serious about both issues, and we should not exchange one issue for the other.”
Recently, the decision of Dutch State Secretary Ankie Broekers-Knol to no longer automatically reunite under-age asylum children with their parents (meanwhile revised) was trending. These children temporarily live with extended family in the Netherlands, awaiting to be reunited with their parents. What do you think about this decision?
“Obviously the most important aspect of human rights, as we understand them today, is what they mean for children and for future generations. Recent case law on climate issues rightly addressed this. We should not only look at our own situation – that of the people who are voting and living right now – but we should also look into the consequences for the minors of today – those who do not have voting rights yet – and for future generations. That was a core consideration in a decision delivered in April by the German constitutional court, and I think that is correct.
Also under the UN Convention on the rights of the child (UNCRC), there is the obligation to take foremost into account the interests of children. So this, in the first place, should have been a reason not to apply this change in policy.
I am afraid that this decision is much more of a so-called ‘solution’ for a political problem, rather than a solution for a substantive problem. It is another phase of the problem of the lack of determination to speak out against the demands of the right-wing populists, and the tendency to give in just a little bit with the intention to, well, prevent the populists from getting more votes.
As I said before, I don't think that this is working. We could see the same thing happening, when a right wing Dutch Member of Parliament recently said, in a debate about the evacuation of Afghan people who worked for the Netherlands military in Afghanistan, that ‘baking an egg for the Netherlands’ should not be a reason to give these people protection here.
From this person’s point of view, his statement probably resounded very well in the news media. But you can imagine what feelings one can evoke, using such a phrase in a parliamentary debate. The response should have been: “The question is not whether you say that baking an egg is not that important, the question is whether the Taliban says that it is important to have baked eggs for Dutch military personnel”.
I must emphasize, not only in respect to this question, but also to the whole issue that we're discussing here: it is important to see migration questions from two sides. Every border has another side. There is, of course, the viewpoint of the welcoming country. But there is also the viewpoint of the others, and the absence or presence of alternatives for them. The ability to see ‘us in them’ is decisive for the whole issue of migration, - our own and everyone else’s ability to see ‘us’ in ‘them’.”
Just two weeks prior to the withdrawal of the American troops, the Netherlands, together with a few other European countries, lobbied in Brussels, to make it possible to return Afghan citizens to Afghanistan. There is an informal agreement on this between the EU and Afghanistan. The crisis in Kabul is unfolding right before our eyes, in real time, while in the past, we usually learned about atrocities like this long after they happened. Many people experience an immense feeling of frustration, of helplessness, disappointment. What was your experience when you were watching this? Are we so helpless?
“I cannot keep it out of my mind. What unfolds in Afghanistan is very much on my mind, day and night so to say, and sometimes even literally. It is such an inconceivable tragedy. Not only the chaotic ending of the Western military and development presence in Afghanistan, but also the helplessness of the people who are struggling to arrive at the airport. I am in touch with a colleague of mine at the University of Amsterdam, and his neighbour is trying to get his wife and children out of the country. For many days, they have been struggling now to get to the airport in Kabul. They are on the list for evacuation to the Netherlands, but they have to reach the airport first, and that is hardly possible under these circumstances.
During my last term as Minister of Justice, I visited the Dutch military and development presence in Uruzgan. So I have a vivid image of the country, and of how people worked there and did their best, and so on. Already back then, many people knew how difficult, hardly possible it is to achieve better results in a deeply tribal society like Afghanistan. In that sense, Afghanistan is not comparable to societies in the Middle East, which have their ethnic differences, but not the deep tribalisation that is present in Afghanistan, and also partly across the border with Pakistan. This tribalisation partly explains why it was so inconceivably difficult to achieve better results. We now see though, how policymakers in the West profoundly misunderstood the situation, at least until recently. I am puzzled at how that could happen. But I do not have the answer to that question.”
I was discussing the developments in Kabul with a guy selling vegetables on the market in Turkey, and he said, exasperated, “But how can this happen?! There is something called human rights!” People are invoking human rights, and yet, at the time that people are most vulnerable, it seems like…
“….. Yes indeed, like there is an inability to see human rights as what they are supposed to be… It is clear, if you hear the Dutch expression ‘rechten van de mens’, or the German word ‘Menschenrechte’, or the French expression ‘Droits de l’homme’, that it is the right of humans as such. It means that in the very understanding, the very idea of mensenrechten or droits de l’homme is the right of humans as humans.
The notion, the idea of human rights or rechten van de mens or droits de l’homme as such, is like a mirror for our legal development. It always questions: “Do you have any acceptable reason for making a distinction between humans?” That is, I think, the essence of human rights, of rechten van de mens. That is also the reason why human rights are not limited to certain areas of law and some people.
Many jurists appear to believe human rights are a separate branch of law next to other branches of law. But it is not. It is about law as such, human rights are about law as such.
The distinctions that we have, and that we need to have in all the various branches of law - be it labour law or civil law or family law or criminal law - or whatever it is which applies distinctions between individuals, between groups of individuals, - these distinctions have to be justified. And if they are not justifiable, then they have to be confronted with the very idea of the rights of humans as such.”
Distinctions should not exist if there is no justification for them. However, we see - not just in Western societies but in any country with big numbers of refugees - less and less empathy with people escaping wars and poverty. What do you think is at the source of this lack of empathy and solidarity with others?
“Well, this is the most important, but also the most profoundly difficult question to answer. In the diary that she wrote in the Achterhuis (the Secret Annex – ed) in Amsterdam during the Nazi occupation, Anne Frank wrote: “The time will when we will be viewed as humans and not just as Jews.”
In his speech for the Dutch May 4 commemoration of the victims of war in 2020, Dutch author Arnon Grunberg rightly said that words are important, and that words are relevant. Grunberg recently published a book with the title ‘Als ze het over Marokkanen hebben’, and we, as readers will immediately fill in the rest of the sentence, ‘dan hebben ze het over mij…’ - which would translate as ‘When they are talking about Moroccans… they are talking about me’. Grunberg has the ability to see himself in the others. This ability to see ourselves in others is something that I think should be part of our educational efforts.
Earlier, I referred to the experience of my own family. There are other families and other people from other nations who have other experiences. All these experiences are relevant for our understanding and our ability to see ourselves in others, and this experience is important for being able to question the distinctions between humans.
It is present in all kinds of racism to make distinctions between humans. And it appears to be easier to make these distinctions if you believe that there are features you can see. Today, if you cannot see it, you apply insignia or documents, or something else, to create distinctions between people, - without good reason. So one of the things that we have to go into more profoundly, and that was also one of the things that I discovered step-by-step, are those distinctions that on the surface seem acceptable, but that, if you look closer into them, are really not justifiable distinctions; distinctions in position, in equipment, and in entitlements between people.
In his book ‘Poverty and Famines: An Essay on Entitlement and Deprivation’, Amartya Sen explained that famines are not the result of a shortage of food, but of inequalities built into mechanisms for distributing food. Famines stem from entitlement systems, and the different availability of entitlements to food. Access to food rights, is often deeply rooted in societal structures, and it depends on distinctions according to ethnicity, gender or nationality, or other man-made distinctions that we apply to people. I think that we have to apply a critical approach to legal systems – the Dutch and other European legal systems – to uncover the hidden distinctions. They come to the surface, sometimes in the form of economic inequality, but more often in the form of things that people try to justify as ‘facts of life’, but that are, as a matter of fact, not facts of life, but the result of previous decisions.”
At the EU level, there is a stalemate on migration issues. Member states are only able to agree on the external dimension of the EU side of migration policy but not on the internal issues such as the distribution of asylum seekers among the member states. What do you think will be the long-term consequences of these externalisation policies of the EU and, in general, the rich countries of the North. As long as they are able to shift the burden to poorer countries in conflict regions, is there a realistic chance of finding a fair burden-sharing solution at the global level?
“This is a two-sided problem. On the side of the European Union, we have a very serious problem of coherence, more specifically, of value coherence. We have seen that some member states have actually endorsed some sort of ‘mental exit’ from the European Union, which is even worse than the Brexit. On the domestic side of the European member states, there is a lack of willingness of accepting responsibilities. Some years ago, the Advisory Council of International Affairs gave the recommendation to confront these member states with financial consequences.
Obviously, this lack of willingness stems from the political situation within those member states, where it has become more and more difficult for politicians, who are weak at the knees, to stand up against populist sentiments. These politicians are not inclined to pay the price for standing up. If you say that you understand the housing shortage, you will have to put in money to solve the issue. So, the reluctance to deal with migration issues may also be a ‘cheap solution’: one simply puts the blame on the others.
On the other side, we have the even more serious problem of the refugee camps. What does it mean for people to be deported to, or be kept into refugee camps within a neighbouring country? There is no reason to think or say that it is better for refugees to remain ‘within the region’ than being in Europe.
Here, in the West, we seem to have a rather extended understanding of ‘the region’ as a concept. In the Netherlands, for instance, we think that the city of Utrecht is situated in a ‘different region’ than the city of The Hague, while these cities are 70 kilometres apart. In the international discourse, we think that, for instance, Turkey is in the same region as Somalia, - which is absurd, of course. It is egregious, and a very ‘white’ understanding of ‘the region’. So in that sense, we can all see that it is not an advantage for anyone to be kept ‘in the region’.
When I was Minister of Justice, I made an impressive visit to one of these city-sized refugee camps of the UNHCR in Kakuma, Kenya. There I saw how an enormous number of people, I think it was approaching the 200,000 at the time, was living in this huge sea of barracks and tents. Indeed, the people in these refugee camps are safe. They are no longer being tortured. Healthcare and education are certainly better than in their countries of origin. So far, so good. But what these people, who are being kept there for years, do not have - and most of them never will - is the possibility to make plans for their future, for life projects for themselves and for their children. That is the inhumanity of keeping people in a refugee camp, endlessly, in another part of the world.
This is something that should be pronounced more clearly in the debate in the Netherlands. If you really want to protect refugees, you should not have this limited sense of safety, where you merely create a situation in which refugees are not being tortured or bombarded. You should think about human security as well. You should give these people a chance to live with their children, with the next generation.”
We, as EU citizens, with our passports, can travel all over the world. We can live and work not only within the Union, but in other countries as well, as the EU has agreements with third states. People from the Global South cannot travel freely. Some scholars call this division the ‘bifurcation of law’ and even speak of ‘global apartheid’ when it comes to the free movement rules that apply to the citizens of the North versus those of the South. Do you find this trend worrying or do you think it is inevitable given the growing gap of wealth between the North and the South?
“This is certainly a correct description of realities: the limited ability to migrate, or move across borders for people that need visas or proof that they will leave the country once they temporarily enter it, compared to those people with ‘high quality’ passports who can travel freely. There are serious differences, but we cannot solve the underlying differences through legal methods. There is simply a huge gap in resources between the global North and the global South.
This is also why the Global Compact for Safe, Orderly and Regular Migration is a huge task. You cannot reduce the negative consequences of socio-economic realities for people from the global South, with a simple measure, a treaty, or a declaration of the United Nations. This is a long process of diminishing the differences in standards of living, and of applying new forms of exchange between various parts of the world.
During my last term in the Ministry of Justice, we tried to make a step in the right direction, by developing new forms of exchange. In Africa, borders are man-made, they were created by the European powers of the 19th century. For the largest part of Africa, migration is a natural condition of living. Throughout life, you temporarily have to move to a different country to earn money, or to get food, or to acquire resources for your family at home.
In this part of the world, however, we too often view migration as a ‘once-in-your-life’ experience, whereby you move from one country to another, and then you give up everything that connects you with the past, with the country you come from.
That is also the reason why so many people here do not understand the importance of having dual citizenship. It is natural for people to maintain links, family bonds, and feelings for their country of origin. And when you have two citizenships, one citizenship will be active within a certain period of your life, while the other is not.
It is one of our tasks as lawyers to recognise the relation between the different anthropological understandings of what it means to be human, and the way in which we organise the law. Mind the plural here: different cultural and historical developments.
In my book ‘De stille revolutie van 1917’, I point to a work of a German sociologist, Gunter Weidenhaus, who describes different understandings of human biographies - the linear understanding of a biography that we often have, in which people stay in the same place, or maybe once in their lifetime change from one place to another.
Migration is not only what many people in the Netherlands think that migration is; a one-directional movement, in which you will never get back to where you came from, in which you forget the place where you came from, stop speaking its language, and learn to eat haring and boerenkool (herring and kale, ed). It is of course possible that some people try to reinvent themselves, but it is not human to compel people to think about themselves and their future in this way.
There is also a more networked understanding of human biographies, and circular migration, in which people temporarily move between countries, or between regions within a country for work, fits very well in this understanding.
So, in 2009, we decided to start an experiment with circular migration as a new possibility of dealing with borders and different places of working and living. However, a year later, in 2010, the next government was formed supported by the PVV (a nationalist, right wing populist party - ed). You can imagine the waning enthusiasm for the experiment. With a lack of political support, the circular migration experiment as one of the possibilities for future regulation policies, was concluded, unfortunately, without having the chance to learn from it.
In some recent publications, I have advocated for expanding our legal creativity and a better understanding of the multi-faceted realities of a world on the move. There is a need for legal migration channels that permit temporary labour migration. Next to asylum migration one could think of the introduction of new legal instruments, such as a contractual form of migration, which would be suitable not only for circular migration, but also for other forms of migration. I think these ideas are relevant and important, and we should include them in the application and understanding of what we mean by bringing truth to international relations.”
To conclude then, on a lighter note. “You are saying farewell from the Asser Institute and the University of Amsterdam, and you will also leave Tilburg University later this year. Looking back on your time at Asser, what did you enjoy most about the Institute and what will you miss the most?”
“The openness. The researchers and other staff at the Institute are a very diverse group, which is good and a value in itself. A diverse group has some built-in stimulus for creativity. Legal, societal, and political creativity. Compared to many other places in which I’ve seen people doing research on international and European law, this diverse group has developed a much greater capability to come up with unusual questions and unusual approaches for finding an answer, or an intermediate answer.
Not so long ago, for instance, and this is still true in many places for international research, it would be inconceivable that the ‘city’ would become a subject of research at a research centre for international and European law. The same with respect to the topic of Memory laws, and of intermediate forms of regulation. Back when I was a student, it was either ‘it's law’ or ‘it is not law, and merely a policy’.
I think the richness of the diversity of humankind, including the possibility to conceive ideas that are new, that are yet to be discovered and developed, is unlimited. This doesn't mean that we can be and conceive all things at the same time, we are not gods. But we have, as Aristotle and Thomas Aquinas have accentuated in their works on the soul - the anima - the capacity to conceive, in some sense, everything. And at the Asser Institute, I have noticed this human capacity of unlimited creativity in dealing with European and international law, - an unlimited creativity that nevertheless has accepted to be disciplined, in the orderly form of publications and courses.”