On the 2. February 2022 the bodies of 19 migrants were found on the border between Greece and Turkey. They had been stripped of their clothes and shoes. They had all frozen to death.

Greece has since been accused by Turkey of forcing the 19 migrants back across the border, to prevent them from applying for asylum in Greece. This narrative has been rejected by Greek authorities, who maintain that it is Turkey who turns a blind eye to the people who attempt to cross the border, and bear the responsibility for the deaths.

The story of the 19 dead migrants on the border between Turkey and Greece is not the first of its kind. When refugees and migrants are forced back in this manner, back to the countries or the waters from which they came, it is called pushbacks – and it is a practice that has been documented on the border between Greece and Turkey for many years.

But pushbacks do not only occur on the border between Greece and Turkey. It is also happening in the English Channel, on the border between Poland and Belarus, and in the waters between Italy and Libya.

NGO’s and experts agree - they say that pushbacks violate international human rights law.

In spite of the critique raised against pushbacks, the EU Commission is currently in the process of expanding the controversial practice, through a proposal that would change the rules governing the Schengen Area.

The Commission is proposing, amongst others, to limit the number of border crossings, increase border controls, and allow Member States of the EU to send people on the border back in emergency situations. These changes will improve the governance of EU’s external borders, the Commission argues.

NGO’s and human rights experts see it very differently.

Martin Lemberg-Pedersen, Head of Policy and Society at Amnesty International in Denmark, fears that the proposed changes of the rules governing the Schengen Area will lead to more pushbacks.

“We fear that the changes would essentially institutionalize the possibility for pushbacks”, says Lemberg-Pedersen, who has formerly researched Western asylum, border, and deportation practices, and is one of the leading experts in this area.

Widespread practice 

Pushbacks have, since the refugee crisis in 2015, become a widespread practice at European borders.

One of the explanations for the widespread use of this practice is that European states – according to international human rights law – are required to give foreign citizens the opportunity to apply for asylum, when they have first cross the border to a European country.

“This is something European states have agreed to and committed to, but do not like anymore. And now they think they can escape from their responsibility, and reduce the number of refugees on their territories, simply by pushing people away”, Matteo de Bellis, a researcher in migration and asylum from Amnesty International, explains.

A pushback commonly occurs with refugees and migrants being met with threats, force, harassment, or violence by border- or coast guards, when they attempt to cross a European border, or try to reach European waters.

Another pushback method that has been documented, is the removal of refugees and migrants from motorboats onto dinghies without motors, and thereafter leaving them to drift at sea. 

Pushbacks can also occur with refugees and migrants being picked up at sea, and thereafter brought back to where they came from before they attempted to cross the border.

There are several actors involved in pushbacks. First and foremost, there are the EU Member States, who themselves manage their external borders on both land and sea.

Beyond that, the EU is itself involved by, amongst others, entering into agreements, that are associated with pushbacks.

The EU has entered into and supported a number of deals, where economic benefits are given to non-EU countries, who in exchange agree to stop migration flows to Europe. The EU has signed such agreements with countries like Turkey and Libya, two countries that refugees and migrants commonly travel to the EU from.

Finally, the European border- and coast guard agency, better known as Frontex, has also been accused of pushbacks. Frontex is responsible for the governance of the Schengen area, where they patrol borders and coasts. NGO’s have documented that the agency has been implicated in pushbacks of at least 957 asylum seekers in the Aegan Sea.

The Turkish Coast Guard rescue a group of refugees and migrants in the Aegean Sea on the 2nd July 2021. The Turkish Coast Guard say they were pushed back out to sea by Greek border guards.

Photo: Ivor Pricket/New York Times/Ritzau Scanpix

A problem of considerable size

Human Rights Watch, Amnesty International and the Danish Refugee Council, all state that the practice of pushbacks is a problem of considerable size.

Pushbacks have been documented on the border between Greece and Turkey, in the English Channel between England and France, on Croatia’s borders, between Italy and Libya, in Hungary, between Spain and Morocco, on the border between Poland and Belarus, and in Tunisia.

It is difficult to state exactly how many pushbacks occur along European borders, as many of them go unreported. Nonetheless, estimates gathered by a range of NGO’s and newspapers give an indication of the size of the problem.

  • In a report from 2021, Amnesty writes that more than 1.000 refugees and migrants experienced pushbacks on the Greek border between November 2020 and April 2021.
  • The Italian government signed an EU-sponsored agreement with the Libyan government in 2017. This agreement led to more than 32.000 refugees and migrants being pushed back to Libya only in 2021, says Matteo de Bellis, from Amnesty International.
  • According to an investigation by The Guardian, Frontex has been involved in pushbacks on European borders of at least 40.000 asylum applicants since the beginning of the Corona pandemic. These pushbacks are linked to the death of more than 2.000 people.

In the last few years we have seen European member states persisting with a policy of exclusion that is designed to keep refugees and migrants out at all costs.

Matteo de Bellis, researcher on asylum and migration at Amnesty International

Deterrence

It is with the above underpinning that experts and human rights organizations agree that pushbacks along the European borders are both widespread and systematic. And there is even much to indicate that pushbacks have become an integrated part of EU’s migration policy.

In fact, in a research article, Thomas Gammeltoft-Hansen argues that the European approach to refugees and migrants is based on deterrence. Gammeltoft-Hansen is a professor with expertise in migration and refugee law, from the Faculty of Law at the University of Copenhagen.

The deterrence happens in numerous ways. For example, through the pushbacks that European states, the EU and Frontex are involved in.

It also happens by decreasing the number of legal border crossings, to criminalize those who attempt to cross the borders to a greater extent. 

In the past couple of years, pushbacks have also in certain contexts happened in conjunction with pullbacks, another form of deterrence. This is the case in the territorial waters between Italy and Libya, where the Libyan coast guard pull back refugees and migrants who attempt to cross the sea to Italy.

All of the methods listed above, have as their ultimate aim to decrease the number of refugees and migrants that cross European borders, Gammeltoft-Hansen writes in the article.

Martin Lemberg-Pedersen from Amnesty similarly argues that there is, amongst certain governments, an idea that the above methods have a deterrent effect on the people who are considering crossing European borders.

“However,” says Lemberg-Pedersen, “basing one’s migration policy on deterrence is an extremely dangerous, cynical and human rights abusive road to go down”.

Background

Schengen-Rules

  • The Schengen Area was established in 1955. It abolished border checks at EU’s internal borders. This means, for example, that as a Danish citizen, you do not need to show your passport when flying to Italy. The Schengen Area is considered one of the most important initiatives from the EU in terms of European integration. Within the Schengen Area free movement is guaranteed for citizens of all EU Member States. This means that citizens can live, study and work in any of the countries encompassed by the Schengen area.
  • Today, the Schengen Area encompasses 26 countries. All EU countries, except for Ireland, Bulgaria, Croatia, Cyprus and Romania, are part of the Schengen Area. However, four non-EU states, Norway, Switzerland, Iceland and Liechtenstein, have joined Schengen.
  • As a counterpart to the free movement within the Schengen Area, border controls are tightened at the external borders. The Schengen countries therefore agree to establish more or less similar rules in relation to border control, and to increase their cooperation to fight illegal migration.

Changing the Schengen rules

There is not much to indicate that the EU’s current approach to migration will change anytime soon. On the 14th of December 2021, the European Commission released a proposal to update and reinforce the rules governing the Schengen area.

The Commission states that the aim of the proposed changes is to improve the governance of the external borders of the Schengen area. They want to increase efficiency and deal with the “instrumentalization of migrants”.

The term “instrumentalization of migrants” is used by the Commission to refer to those situations, where migrants are taken advantage of for political purposes. Specifically, to put pressure on EU’s external borders.

This specific phenomenon has been documented recently on the border between Poland and Belarus, where Belarus has been accused by Poland of using refugees and migrants as a political instrument against the EU, by attempting to escort a large number of refugees and migrants to the Polish border.

To address the “instrumentalization of migrants”, the Commission proposes decreasing the number of border crossings, treat asylum applications at the border, and additionally, the Commission wants to open for the possibility of imposing a fast-track procedure for returns in emergency situations.

The Commission’s proposal now lies with the European Parliament, who will decide whether the changes will be implemented.

Amnesty has warned against the Commission’s proposal. They say that deviations from normal asylum-standards based on a vague term about “instrumentalization”, will only increase the risk of illegal pushbacks along European borders. They furthermore maintain, that the possibility of imposing a fast-track procedure could violate the rights of asylum seekers.

Danwatch has been in contact with EU’s Department of Home Affairs and asked them to respond to the critique from Amnesty. In their written reply they state that the term “instrumentalization” demands a certain degree of flexibility, to be able to encompass different scenarios. They furthermore assess that several of the proposed changes simply clarify what can already be done under the current legal framework, and that Member States continue to be obliged to comply with high standards of asylum law.

Martin Lemberg-Pedersen, from Amnesty, nonetheless evaluates that the proposal hollows out existing EU-responsibility and increases the risk of pushbacks.

Background

UN Conventions

  • The UN Convention relating to the Status of Refugees was adopted in 1948. The Refugee Convention defines who can be given the status of a refugee, and the rights refugees have. The Refugee Convention defines a refugee as a person who, due to a well-founded fear of being persecuted for reasons of race, religion, political views or similar reasons, is seeking protection outside their country of origin. Countries who have signed the Refugee Convention must assess applications for asylum individually, to decide whether or not the person that is seeking asylum is a refugee. The Refugee Convention prohibits countries from returning a refugee to a country where there is a danger that the refugee will be persecuted, or where their life or freedom is in danger. This is called the principle of “non-refoulment”.
  • The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted in 1948. It prohibits all forms of torture. Torture is defined as any act that is intentionally inflicted on a person and causes severe pain or suffering. The Convention prohibits any of the signatories to the convention to return (“refouler”) a person to another state, where there is reason to believe that the person would be in danger of being tortured.
  • The UN Convention on the Law of the Sea was adopted in 1982. The Convention regulates nearly everything that is related to the ocean, be it fishing, or oil and gas industries, environment, or maritime traffic. Under the heading of maritime traffic, is the duty of seafarers to perform search and rescue if a person is in danger at sea, and to come to their aid as fast as possible.

Violation of UN Conventions?

Concurrently with the EU possibly paving the road for pushbacks to become even more widespread, experts in migration and asylum law warn that pushbacks constitute a serious violation of human rights.

First and foremost, there is the principle of “non-refoulement” in the UN Refugee Convention. This principle compels states to assess all asylum applications individually, to ensure they do not send asylum seekers back to a country where there is a risk the person will be subjected to persecution, torture, or other serious violations of their human rights.

The UN Special Rapporteur on Migration, Felipe Gonzáles Morales, asserts in a comprehensive report on pushbacks, that because pushbacks occur without consideration being given to the individual situation of the people who attempt to cross the border, pushbacks violate the prohibition of “refoulement”.

Martin Lemberg-Pedersen also states that pushbacks violate the prohibition of sending refugees back to persecution or other degrading treatment. Furthermore, he adds, it violates the prohibition against collective expulsion.

In addition, in certain circumstances, those pushed back are also exposed to violence, and even torture, in the countries they tried to leave, Lemberg-Pedersen explains. This violates the UN Torture Convention, which prohibits governments from returning people to a country, where there is a risk that they might be tortured or exposed to other inhuman or degrading treatment.

Danwatch has previously written extensively about how refugees and migrants are exposed to human rights violations, including torture and rape, in Libyan detention centers. Matteo de Bellis, the migration researcher from Amnesty, explains that this entails that the EU and Italy are violating international human rights law, specifically the principle on non-refoulment in the UN Conventions, when they are complicit in refugees and migrants being pushed back to Libya.

In addition to the above Conventions, there is also the UN Convention on the Law of the Sea. According to this Convention, ships have a duty to conduct search and rescue operations for persons in danger at sea.

This means, for instance, that if the English Coast Guard detects a boat with refugees and migrants within their so called “SAR-Zone”, who are in danger, they have a duty to come to their rescue. Ignoring a call for help in such a situation, would therefore be a violation of the UN Sea Convention.

Accused of human rights violations

It is not only in the press that EU countries are accused of being at odds with international human rights law.

A number of cases are currently pending before different international and regional courts, where a number of EU countries are accused of violating international human rights law.

In June 2019, the International Criminal Court (ICC) were asked to investigate the possible complicity of the EU in crimes against humanity, due to their treatment of migrants in the Mediterranean Sea.

In 2022, the ICC has furthermore been asked to investigate the involvement of Malta and Italy in pushbacks of asylum seekers and migrants to Libya. The claim before the ICC refers to comprehensive reports, which show that refugees and migrants who are returned to Libya have experienced torture, abuse, and sexual assault – and in some cases, been murdered. 

In 2018 a case was brought before the European Court of Human Rights against Italy. In the case, Italy is accused of sharing responsibility with Libya for violations of human rights, by assisting the Libyan Coast Guard in stopping asylum seekers and migrants from crossing the waters to Italy.

There are also several cases pending before the European Court of Justice on the issue of pushbacks. In one of these cases, Frontex itself is accused of violating the human rights of asylum seekers who have been exposed to pushbacks in the Aegean Sea.

There has not been a final judgment in any of the cases above, yet. However, Matteo De Bellis expects there to be a decision in the case made before the European Court of Human Rights against Italy this year. And he stresses how important it is that European states are held responsible for their actions in courts of law.

To reach global climate goals and halt the loss of biodiversity, it is essential to protect the areas that absorb and store CO2, as well as host the majority of the world’s biodiversity – forests, and especially, rainforests.

This has also been acknowledged by the EU, who have proposed a new regulation, which will give European companies increased responsibility in ensuring that they do not contribute to deforestation. The legislation will require that companies do not import products like coffee, cocoa, and beef, from areas that have been cleared of forest.

This is an important step, as the EU is the second largest importer of deforestation globally, explains Margrete Auken, a representative from the Green party in the European Parliament.

There is just one crucial element which the European Commission has forgotten in the draft regulation: the indigenous peoples, who according to research, experts, and the UN, are best at protecting nature.

After the regulation was proposed, 22 indigenous groups sent an open letter to the EU, where they made it clear that the proposal as it stands, does not protect their rights – and without that, the law will fail in its aim to end deforestation, they warn.

In the open letter, the EU is urged to change the regulation, so European companies are obliged to respect indigenous peoples’ land rights. Additionally, they request that the EU acknowledge the important role that indigenous peoples play in protecting the worlds forest, and the threats that companies pose to indigenous peoples livelihoods.

The open letter has received support from a host of NGO’s who work with promoting indigenous peoples rights.

According to Stefan Thorsell, an expert in climate and environment at IWGIA, an international organization fighting for indigenous peoples interests, European countries firstly need to live up to the content of the declarations, that they themselves have been part of creating and adopting in the UN, that seek to protect indigenous peoples.

“But additionally, in a cynical way, we also need to acknowledge that we will not be able to end deforestation, if indigenous peoples rights are not protected”, Thorsell emphasizes.

  • The UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on the 13th September 2007. The Declaration sets out a framework which establishes both individual and collective rights for indigenous peoples.

  • The Declaration emphasizes that indigenous peoples have the right to maintain and strengthen their own institutions, cultures and traditions. The Declaration also prohibits any discrimination against indigenous peoples. It furthermore gives increased protection for indigenous peoples unique cultures.

  • The Declaration also strengthen indigenous peoples opportunity ability to decide over their own territories and resources, and it emphasizes that indigenous peoples have a right to be involved in all matters that concern them.

Protectors of nature

Indigenous peoples have a unique relationship to nature and to their territories, Stefan Thorsell explains to Danwatch – it is their livelihood, as well as an essential part of their culture.

“However, this unique relationship, is something that is constantly under pressure”, he continues.

Indeed, there are numerous examples of indigenous peoples territories being encroached on, and their rights violated, by companies who want to use their land for agriculture and extractive purposes.

It is these types of threats to indigenous peoples livelihoods, which paved the way for the adoption of a UN Declaration on indigenous peoples rights.

“This declaration is unique in comparison to all the other UN declarations and human rights conventions, because it focuses on indigenous peoples collective rights. They have, as a people, collective rights to self-determination, which includes the right to autonomy and self-government on their territory”, Thorsell explains.

The UN Declaration also includes the principle that indigenous peoples are to give their free, prior and informed consent, prior to any decision being taken, which affects them and their territory.

The principles enshrined in the UN Declaration are significant because indigenous peoples own land in a different way than others. They seldom have a title to the land, as most do when they have a right to the land.

Nonetheless, through the UN Declaration, it is internationally acknowledged that one cannot displace indigenous peoples from the territories that they have traditionally lived on, and rely on for their livelihoods, without their free, prior, and informed consent.

The Member States of the UN have committed to upholding the principles in the Declaration. “But, in spite of this, the challenges and the fight continue every single day for indigenous peoples all over the world”, says Thorsell.

Violations of indigenous peoples rights is thus, first and foremost, in violation of the UN Declaration and their human rights.

But violations of indigenous peoples rights are also a massive problem in relation to the global loss of biodiversity.

Indigenous peoples only make up around 6% of the world’s population, but in spite of this, they protect almost one fourth of the world’s surface – “and this is typically tropical forests and other entirely unique ecosystems”, says Thorsell.

Indeed, research from the World Bank shows that indigenous peoples protect almost 80% of the world’s biodiversity.

In addition to the repercussions for biodiversity, violations of indigenous peoples rights also have detrimental effects on the climate.

Emissions from deforestation are, second to fossil fuels, the main cause of climate change, according to the IPCC. This is, amongst others, because forests are essential for storing and absorbing CO2. And when forests are cleared, large amounts of CO2 are released into the atmosphere.

A new report from Forest Declaration Platform, a collaboration between the UNDP and three organisations with expertise in climate solutions, conclude that it will not be possible to reach the goals in the Paris Agreement, if indigenous peoples rights and territories are not protected. In fact, the report establishes that, in countries like Brazil, Colombia, Mexico and Peru, areas that are controlled by indigenous peoples, absorb more than double the amount of CO2.

FAO and IPCC similarly report that combatting climate change and reaching climate goals depends on recognizing and protecting indigenous peoples territories.

Anne-Sofie Sadolin Henningsen, advisor for the organisation Verdensskove with expertise in climate, points out that as these studies show, that in the areas where indigenous peoples live, forests are far more biodiverse and better protected.

“And the forests are essential. We are inherently dependent on forests being protected if we are to, in any way, ensure that we do not get global temperature increases with very serious consequences”, Henningsen continues.

  • The European Commission presented their draft regulation on deforestation free products on the 17th of November 2021. The proposed regulation gives European companies responsibility for ensuring that their import of the following commodities: soy, beef, palm oil, wood, cacao and coffee, does not come from land that has been cleared of forest after 2020.

  • Companies will be required to collect geographic coordinate of the land where the commodities they place on the market were produced. The EU will in this way be able to ensure that only deforestation-free products enter the EU market.

  • The European Commission expects that the regulation will contribute to decrease CO2 emissions and halt the loss of biodiversity.

A flawed regulation

The EU have also come to recognize that it is essential to halt deforestation if global biodiversity is to be protected and CO2 emissions are to decrease.

On the 17th November 2021, the Commission presented the draft regulation, “Regulation to minimize EU-driven deforestation and forest degradation”.

The draft regulation gives companies responsibility for ensuring that their import of soy, beef, palm oil, cocoa and coffee, does not come from land that has been deforested after 2020.   

The draft regulation is part of a broader strategy that was first outlined in 2019: Commission Communication on Stepping up EU Action to Protect and Restore the World’s Forests”.

In this original strategy, the Commission emphasized that protecting indigenous peoples rights was essential to halt deforestation.

In spite of this, the final draft regulation from the Commission is limited, to say the least, when it comes to indigenous peoples rights – indigenous peoples’ rights is only referred to one time in the draft.

This has caused a reaction from many indigenous peoples and NGO’s working to promote indigenous peoples rights – resulting in, amongst others, the open letter sent to the EU.

The 22 indigenous organisations, who signed the open letter, represent hundreds of thousand indigenous peoples from all over the world – from Bangladesh to Brazil, Congo to Indonesia, the Philippines to Tchad. In addition to this, 161 environmental- and human rights organizations have signed the letter.

Stefan Thorsell, from IWGIA, also reacts strongly to the lack of reference to indigenous peoples in the draft regulation.

In the draft it says that European companies must:

  • Comply with national laws in relation to rights
  • Cooperate with third countries in promoting indigenous peoples rights

But, the national laws in many of the countries where deforestation is a severe problem, often provide very limited protection for the rights of indigenous peoples. And the draft regulation does not mention international rights and standards at all.

This is very problematic, Thorsell explains to Danwatch, and adds that there are many states who do not see themselves as obliged to protect the rights that are included in the UN Declaration on indigenous peoples rights.

For example, there has been a disturbing development in Brazil over the past years. Between 2016-2018, the FAO reports that deforestation on indigenous peoples territories in Brazil increased with 150%.

This situation has deteriorated even further since Jair Bolsonaro became president in 2018. According to critics, Bolsonaro is promoting the “death agenda” against indigenous peoples.

“This is exactly why, it is not sufficient that the EU is saying that companies must comply with national laws”, Thorsell cautions.

Thorsell still sees potential in the draft regulation from the EU, because it at the very least raises the current standards. “However, it is essential that the text on indigenous peoples rights is strengthened in the regulation”, he continues.

Margrete Auken is similarly sceptical of the current reference to national – rather than international – law. Auken sits in the European Parliament, the body who initiated the work of seeking a European solution to deforestation, and who will also decide whether the draft regulation is adopted.

“The draft regulation from the Commission is very poor in comparison to what we first tabled in the Parliament. It is much weaker than what we initially suggested”, Auken tells Danwatch.

Companies’ interest is first and foremost profit. Also in the instances where the rights of indigenous peoples are on the line.

Stefan Thorsell, expert in climate and environment for IWGIA

Lives on the line

​​Already in September 2021, the two NGO’s Global Witness and Client Earth released a report where they warned the Commission against disregarding the people who live in, depend on, and protect the forests, in the regulation.

Anne-Sofie Sadolin Henningsen, who works for the organization Verdensskove, emphasizes that the EU bears a large responsibility in this matter – “EU is the second largest importer of deforestation, and deforestation is, unfortunately, very often tightly connected to violations of indigenous peoples rights”.

Thorsell from IWGIA says that, in some instances, we are talking about a lack of understanding from companies when it comes to indigenous peoples and their territory. But, there are also many examples of deliberate violations, he emphasizes.

“In the past six years, companies from the EU have been either directly or indirectly connected to around 10% of all documented attacks by companies on rights defenders around the world”, Thorsell explains to Danwatch. 

Concurrently with the severe consequences that deforestation has on global biodiversity and our climate, deforestation is thus also connected to violence and violations of indigenous peoples rights.

A number of companies have today agreed to and signed international initiatives such as the UN Guiding Principles on Businesses and Human Rights (UNGP). The UNGP sets out a framework for companies’ responsibility in ensuring that they do not violate human rights. Similarly, many companies have set up large CSR-departments, who work on companies’ social responsibility.

“In spite of this”, Thorsell says, “on indigenous peoples territories, far away from the public’s eye, the reality is a very different one. This is obvious by, amongst others, the number of human rights- and environmental defenders, who are attacked and killed”.

In a recent report from Global Witness, it was documented that in 2021 alone, no less than 227 human rights- and environmental defenders were killed. And out of these, over a third were indigenous peoples. The report furthermore showed that a significant number of the murders were connected to deforestation and agriculture.

This is exactly why it is essential that the text concerning indigenous peoples rights is strengthened in the draft regulation, says Thorsell, “the EU must use their position of power to support and promote the global declarations, that the European countries themselves have adopted in the UN”.

“Indigenous peoples rights must be respected”

The draft regulation that the Commission proposed now lies with the European Parliament and the European Council, where it is expected that a decision will be made, in relation to potential changes made to the regulation, in June this year.

Margrete Auken from the EP says it is essential that the Parliament pushes for a number of changes in the regulation before it is adopted.

“First and foremost, there are human rights and there is nature that has been completely ignored in the draft regulation”, she tells Danwatch and adds that indigenous peoples rights have been disregarded:

“Their rights are not included in the draft. This means, that it will be all too easy to come and force them away from their territories”.

In the final regulation, it should therefore be clear that indigenous peoples rights must be respected, and that one must look to international standards, Auken emphasizes.

“One should not toss away the draft from the European Commission, but one needs to acknowledge that at present, it is too flawed to be able to do what it set out to do meaningfully”, she concludes.

No amount of green electricity, good press or generous development projects can outweigh the
violation of a nation’s constitution by politicians or corporations.

This was the message of Justice Peter Muchoki Njoroge’s verdict, issued on October 19 from
a modest courthouse in northern Kenya. The judge knows his subject well, since he has heard testimony and received evidence from the opposing parties on numerous occasions over the course of the last seven years.

The conflict concerns the land on which 365 gigantic windmills now stand. On one side is the Lake Turkana Wind Power Project, which took possession of the land, and the politicians that gave it to them. On the other are local tribal communities, who say they had never heard of the Lake Turkana Wind Power Project before their land was taken from them.

The case may end up providing a lesson as to how green energy projects should be undertaken in the rest of the world. And in the middle of it all is the Danish company Vestas, which built the wind turbines and owns a 12.5% stake in the consortium known as the Lake Turkana Wind Power Project.

Seven years have passed since, in 2014, the residents of Laisamis and Marsabit in northern Kenya sued their local politicians, public prosecutor, the national land commission and, chiefly, the Lake Turkana Wind Power Project, calling for a halt to the 620 million-euro project.

The consortium behind Lake Turkana Wind Power Project consist of:

Source: Lake Turkana Wind Power

The money behind the project comes from several international investors,including: 

  • Finnfund
  • Norfund
  • The Investment Fund for Developing Countries (IFU)
  • The Export Credit Fund (EKF)
  • Vestas, the constructers of the wind turbines and owner of 12,5 percent of the shares in the project. 
Sources: Lake Turkana Wind Power

In spite of Justice Njoroge’s stern words, the wind farm will remain standing after the verdict, since the green energy it provides is in the public interest of the Kenyan people. But the deed to the land is “irregular and unlawful,” according to the judgment of Justice Njoroge and his two colleagues on the bench.

This means that the politicians responsible now have one year to ensure that the sale of the land is legitimate. In addition, the consortium behind the Lake Turkana Wind Power Project must ensure that future risk assessments – so-called due diligence – are much more “careful and foolproof”, according to the decision.

The case is not completely closed yet, since it is unclear whether the consortium will mount an appeal. In an email to Danwatch, its administrative director, Phylip Leferink, wrote:

“LTWP is still in the process of studying the ruling. We are, therefore, not yet in a position to determine the next steps”.

Vestas declined to comment on the court’s decision, but referred Danwatch back to the Lake Turkana Wind Power Project.

March 2016 – The Vision

The view stretches over kilometres of barren, stony desert, interrupted only by small clusters of acacia trees huddled against the strong winds. Along the line where the sky meets the desert, a cloud of dust rises as nomads lead a flock of camels to pastures farther up the mountain, where the rock-strewn cliffs give way to verdant grassland.

I visit Lake Turkana with a photographer in 2016 because I have heard that something has
gone awry with a widely-praised green energy project: one that Vestas, the Danish Investment Fund for Developing Countries, and Denmark’s Export Credit Agency have promised millions to and have celebrated in the press. We decide to visit the four local tribal communities to try to get to the heart of the matter: What did they know about the wind farm project, and when? Perhaps they just want a share of its profits…or perhaps they were never consulted to begin with.

Read the investigation: A people in the way of progress

The sun beats down upon us, but we don’t feel it because of the wind, which blows stronger
here than anywhere else in Kenya. Here, in 2005, in the corridor between an extinct volcano, Mount Koulal, and the blue-green Lake Turkana, two Dutchmen had a flash of inspiration. The friends, Harry Wassenaar and Willem Dolleman, saw potential; they undertook analyses and discovered that the wind in this corridor could increase Kenya’s energy production by 15
to 20 percent. Clean, green energy, no less.

At that time, only 26 percent of the total population of 35 million in Kenya had access to electricity. It was not long before governments, international investors and corporations got on board with Wassenaar and Dolleman’s vision: on April 3, 2007, the Lake Turkana Wind Power Project writes to Marsabit County, asking to take possession of twelve square kilometres of land along the shores of the lake. In August the same year, Marsabit County transfers the land to the consortium. The vision will be a reality, and the Danish firm Vestas will build the windmills.

Eight years later, on October 20, 2015, Vestas writes in a press release that Alphabet Inc., the parent company of Google, will purchase the 12.5% stake belonging to Vestas in 2017, when the project is expected to be completed. The Global Wind Energy Council, an international forum for the wind power industry, calls it a “leading example” of how businesses invest in green energy in order to obtain advantageous economic returns and scale up sustainable energy production.

2021 – The gifts the majority didn't want

Today, 365 enormous windmills dot the rocky landscape beside Lake Turkana like monuments to a lost civilization. Every day, these turbines deliver green energy to between eight and nine million Kenyans, accounting for 16-17% of Kenya’s total energy consumption, according to Phylip Leferink, the administrative director of the consortium.

Since its inception, public and private investors have contributed more than 4.6 billion Danish crowns to the project, and the Lake Turkana Wind Power Project has won several prizes for innovation, sustainability, and for being “best in class” among energy and infrastructure deals. The project quickly became part of Kenyan President Uhuru Kenyatta’s Vision 2030, a program promising to deliver Kenyans a “high quality of life” before the end of the current decade.

Vestas not only built the windmills; the company is also present through CSR projects in Loiyangalani, a small village close to the project. Over the years, the windmill project’s foundation, called Winds of Change, has built schools with solar panels enabling children to go to class in the evening, wells to water livestock, and a significant expansion of local road networks. Before this, the desert was nearly impassable. Today, 350 kilometres of roads provide a paved path for the heavy trucks ferrying windmill parts through the desert from Laisamis-South Horr to the shores of the turquoise lake.

On the surface, all seems well; but upon closer inspection, problems begin to appear. From the beginning, the Lake Turkana Wind Power Project promised 2000 new jobs. Unfortunately, this proved to be somewhat of a mixed blessing. Rumours of the new positions spread throughout the region, and new arrivals began streaming into an area that
was accustomed to making do with little. Foreign governments and NGOs had distributed food aid to the region for years, and pressures exerted by the increasing numbers began to reignite old conflicts. Livestock theft, in particular between the Turkana and Samburu tribes, had long been a source of tension, and was not improved by the new arrivals. The wind power project hired guards to deal with these issues, but this seemed to cause only new problems when locals accused the guards of abuses. For his part, Phylip Leferink maintains that the arrival of the guards brought order to the region.

Local residents are not unequivocal in their gratitude for the work done by Winds of Change, according to Mali Ole Kaunga, director of IMPACT, an NGO working to advance the interests of the various tribal communities in the area.

To begin with, the green energy produced by the wind farm is not for them, but is transmitted via huge power lines to Suswa, 428 kilometres away, he says.

“The vast majority of them are unhappy with the windmill project. All the households in Marsabit run on dirty energy, and yes, there are roads and health clinics, but that’s because the consortium needs them to transport windmills and care for their own employees,” says Ole Kaunga.

Mali Ole Kaunga recognizes that local residents value the new schools in the area, but in reality the CSR projects are part of the problem, he believes. They distract from the issue that has led the inhabitants to sue the consortium and their politicians: the wind farm is on land that local tribes believe they have rights to.

“Health and education are the responsibility of the government. CSR projects cannot compensate for the value that corporations are deriving from being here, and they shouldn’t be used to pacify the residents into giving up their rights,” says Ole Kaunga.

He identifies the right to be heard and compensation for the surrender of land claims as examples of these rights.

March 2016 - The Conflict

The chairs before the judge’s bench are filled with men and women in suits, seated close together in row after row. The air is heavy and stagnant, even though all windows are wide open behind their protective grates. The court session is delayed a moment while the
judge weighs whether my photographer colleague and I may observe. I am permitted to stay, but the photographer is sent out, and a few more people find seats in the last rows. In the open doorway, women in traditional necklaces, jewellery and wrap dresses stand alongside men in work clothes and suits. Behind them, a line of local tribal members stretches far down the street.

They squat on a slope outside. Some hold walking sticks; they have walked for as much as three days to get to the courthouse in Meru for this moment, they say. For centuries their tribes have lived side by side in northern Kenya. Their coexistence has not always been peaceful or without conflict, but today they are united. They are suing the Lake Turkana Wind Power Project and the county council in Marsabit for giving their land away without consulting them.

The plaintiffs are from the Rendille tribe, but they claim to represent the tribes of the entire area: Rendille, Samburu, Turkana and El Molo. They are nomads who have lived in the region for thousands of years, settling wherever the climate and provisions were best for man
and beast. They live off the land and use it for ceremonial and spiritual purposes, which they
say makes them the “original and true owners” of the land.

In the courtroom, everyone listens to Justice Njoroge. The parties are exhorted to find a solution, and court is adjourned.

Outside the Meru Land and Environmental Court stands Abdi Hassan, a lawyer for the consortium behind the Lake Turkana Wind Power Project. A group of men in shirts, trousers and red shawls shout and wave their telephones at Hassan, but he dismisses all their accusations. The consortium has repeatedly insisted that the project proceeded after careful consultations with the four tribal communities. Abdi Hassan says that the lawsuit is merely “camouflage.”

“What they want is revenue that is accruing from [the windmill] project,” he says, as the last part of his sentence is drowned in the sounds of protest from the men around him.

I cross through the crowd outside the courthouse to find Roger Sagana, the prosecutor in the case, to ask if Hassan is right. Sagana dismisses it.

“No, actually the issue of revenue is not an issue at all in this particular dispute,” says Sagana.

“This was community land that belonged to the greater part of Marsabit County, with the Rendilles traditionally inhabiting the land. And there is a process that Kenya has in the Trust Land Act for the conversion of community land into private lands. And this process involves quite extensively public participation, it also involves compensation, and it is an elaborate process that was not followed at all,” he insists.

The promises made regarding jobs, health clinics, schools and wells for livestock in the parched regions cannot outweigh a central point: that the tribes do not believe they were consulted before their land was given away to the wind farm project.

Danwatch lavede i 2016 undersøgelsen "A people in the way of progress".

 A few days later - March 2016 

We sit in the broad shade of a group of trees in the town of Loiyangalani, by the shores of the Lake Turkana. Behind Christiana Saiti walks a man in a hat and shawl. A boy wearing nothing but trousers runs behind the man down to the lake, where the waves rise with the wind. The lake’s fishery provides food to the area’s fishing families, who live in domed clay huts along the lake, putting their boats and nets in the water every day for centuries.

This is where the El Molo people have lived since they began to migrate here from Ethiopia around 1000 BCE, says Christiana Saiti, spokesperson for El Molo Forum, which represents the El Molo people. Today, the town has approximately five thousand residents and very
few tourists.

“There was no free, prior and informed consent on the issue of land especially,” says Christiana Saiti about the wind farm project.

“We didn’t agree to that size of land to be given to the consortium. And yet, attached to that parcel, there is another extra parcel, which they say is private.
Private belonging to whom? Our land is never private, it is public land. The land belongs to the communities. It is communal land, and it is in our constitution,” she says.

Farther in from the coast live the Rendille, Turkana and Samburu peoples, nomads who have lived in the region for centuries following their herds of goats and camels. Over the course of ten days, we interview 24 members of the local tribal communities. All say independently of each other that they had never heard of the windmill project until after 2007.

At that point, in August 2007, the Town Planning Committee for the region of Marsabit had already gathered around a table in the principal town of Marsabit and crafted the agreement that gave the land to the wind farm project.

But Marsabit is 264 kilometres from Lake Turkana, where the local tribes had no idea what
had just happened. Fourteen years later, this will prove decisive.

In 2016, Danwatch interviews representatives from several nomadic tribes i the areas around  Lake Turkana. Photo: Shafiur Rahman / Danwatch.

2017 - Costly Delays

The windmill project is ready on schedule in 2017, ten years later. The transmission lines needed to convey the power from the turbines to Suswa and onward to the citizens of Kenya, however, are not. Ketraco, the national power company, is charged with the construction of the transmission lines, so they must pay penalties for the delay to Lake Turkana Wind Power.
As a public utility, however, the bill is really being paid by Kenyan taxpayers. In other words, consumers that in many cases lack electricity to begin with are now paying for green energy that never makes it to the outlets in their walls.

Read: Danskstøttet vindmølleprojekt giver ekstraregning til kenyanere

The delay eventually costs the Kenyan taxpayers 1.2 billion Danish crowns in all during the years when the power generated by the windmills is unusable. The expense is financed by making electricity more expensive.

The delay has other consequences, too. Alphabet Inc. withdraws from its pledge to buy Vestas’ one-eighth stake in February 2020 because of the setbacks with the transmission lines, Vestas tells Reuters.

Pressure had been mounting on Alphabet on another front, however. The company’s CEO, Sundar Pichai, received a letter from 38 “concerned investors” who read the Danwatch investigation “A People in the Way of Progress” about local tribes’ resistance to the wind farm and want Alphabet to drop its investment in the project.

“I think Danwatch’s report should make Google seriously reconsider their plans to buy out Vestas,” says Steve Heim of Boston Asset Management, an Alphabet shareholder. “Google should not be associated with violations of indigenous people’s rights in Lake Turkana.”

Whatever the reason, Vestas is forced to seek other potential buyers. Today, Vestas still owns 12.5% of the shares in the consortium.

It is not until two years after the completion of the project, in July 2019, that President Uhuru Kenyatta can declare the wind farm open, accompanied by congratulatory speeches and a gigantic brass band.

“The successful implementation of Lake Turkana Wind Power demonstrates Kenya’s outstanding credentials as an investment destination in Africa and is a perfect example of the immense potential of the public private partnership model of implementing development
projects,” says the president.

Just over two years later, this “successful implementation” is found by a court to be in violation of the country’s constitution.

October 2021: The Verdict 

Back at the Meru Land and Environmental Court on an October day in 2021, seven years after the case was filed, the final verdict is rendered. The three justices, Peter Muchoki Njoroge, Jemutai Grace Kemei and Yuvinalis Maronga Angima, have once again listened to
arguments and witness testimony.

They have voted, and their decision is unambiguous.

The land was transferred unlawfully. A divisional board consisting of local and national politicians and members of the local communities was never established to ensure that all parties were heard. There were no notices posted in the Kenya Gazette, a government publication disseminating information to the citizenry, business community and public institutions as required by law regarding legislation and other matters of public interest.

Adequate public hearings were not held, and the relevant government minister did not take action to correct any of these matters. Therefore, write the justices in their decision, the consortium’s titles to the land are declared “irregular and unlawful.”

The politicians responsible have one year to renegotiate the rights to the land. If their efforts do not succeed, the property “shall revert to the community,” say the justices.

The Lake Turkana Wind Power Project does not escape blame, either.
“As an investor in a project involving billions of shillings, it should have undertaken careful and foolproof due diligence. The court has, however, taken into account that the impugned project is already complete and is supplying a substantial portion of the national electricity needs,” the verdict says.

In a statement to Danwatch from Lake Turkana Wind Power Project, its administrative director, Phylip Leferink, says that the company is studying the verdict, and that time will tell whether any of the parties seek an appeal.

“It would appear that the judges sought to strike a balance between ensuring strict compliance with the law, and preserving a national government and Vision 2030 project. It will be interesting to see how the rectification will be done or if any of the parties will seek to appeal the judgment,” he writes.

Companies have a responsibility, too

Steve Heim at Boston Asset Management supports the Kenyan court’s verdict, because “it provides access to remedies for the impacted Indigenous Peoples.”

He believes that the directness of the court’s statement demonstrates that investors and companies need to ensure that indigenous peoples grant “explicit consent” before they move into new areas.

“The Court stated it well: ‘[Lake Turkana Wind Power Ltd.] should have undertaken careful and foolproof due diligence’,” writes Heim in an email to Danwatch.

At the Danish Institute for Human Rights, Birgitte Feiring, head of the Departement for human rights and development, likewise emphasizes the need for businesses to investigate possible problems ahead of time and ensure that consultation takes place with indigenous peoples before their land is appropriated for infrastructure projects.

“The decision illustrates how you will run into huge problems if you don’t follow the proper procedures for acquiring land, especially in cases where indigenous peoples are involved. If you don’t identify the correct people and groups as owners or users of the land, then you might for example not identify the right camel routes, and so the risk increases that you violate people’s rights. And this represents an increased risk for businesses as well,” she said, calling attention to the need for due diligence from both governments and companies.

In this case, the justices chose to place blame with the local politicians instead of the consortium, but their decision included a reprimand to the wind farm project as well.

“We often see that courts choose to acquit companies and convict governments instead, since the state has the primary responsibility to uphold human rights. But businesses also have a responsibility to investigate whether their projects are in conflict with human rights. That is why the court asserts that the consortium behind a project worth billions ought to have exercised greater vigilance,” says Feiring.

Vestas declined to comment for this article.

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