The Law of Hospitality An Analysis of the Case of Salah Sheekh

2
The Law of Hospitality
An Analysis of the Case of Salah Sheekh
Faculty of Law
Master Thesis M.C. Stronks
Supervisors: mr. dr. H. Battjes and Prof. dr. W.J. Veraart,
31 March 2009
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Table of Contents
1.
Introduction ..................................................................................... 5
I.
II.
III.
2.
Outline .................................................................................................... 5
This Endeavour ....................................................................................... 6
His-tory and Our-story............................................................................ 8
The Metamorphosis......................................................................... 10
I.
Introduction .......................................................................................... 10
I.1
Asylum Procedure ...................................................................... 10
II.
The Interviews with Salah Sheekh ...................................................... 11
II.1
The his-tory of Abdirizaq Salah Sheekh..................................... 11
II.2
Salah Sheekh’s Identity and Travel Route ................................. 12
II.3
Salah Sheekh’s Age .................................................................... 14
III.
The Case of ‘the Applicant’ ................................................................. 16
III.1 The Letter of Intention ................................................................ 16
III.2 The Metamorphosis into ‘the Applicant’.................................... 18
III.3 The Decision ............................................................................... 19
III.3.1 The Credibility of ‘the Applicant’ ................................... 19
III.3.2 Should We Consider ‘the Applicant’ as a Refugee? ....... 21
III.3.3 Can We Send ‘the Applicant’ Back? ............................... 22
IV.
Conclusion: the Subject is ‘the Applicant’ and his Our-story.......... 22
3.
The Court’s Assessment of Our-story................................. 24
I.
Introduction .......................................................................................... 24
II.
The Case of Salah Sheekh .................................................................... 24
II.1
General Principles....................................................................... 24
II.2
Application of the General Principles to ‘the Case’ ................... 25
III.
Conclusion: A Different Perspective? ................................................. 25
4.
Hospitality .............................................................................. 27
I.
Introduction .......................................................................................... 27
II.
De l’hospitalité ...................................................................................... 27
II.1
Question d’étranger: venue de l’éntranger ................................. 27
II.2
Pas d’hospitalité .......................................................................... 31
III.
Différance ............................................................................................. 33
4
IV.
The Other .............................................................................................. 35
IV.1 The face of the other ................................................................... 35
IV.2 Infinity and the Third .................................................................. 36
V.
Conclusion ............................................................................................. 40
5.
The Language of Hospitality ................................................ 41
I.
Introduction .......................................................................................... 41
II.
Absoluteness and Balancing in the Case Law of the Court .............. 41
II.1
Indeterminacy ............................................................................. 42
II.2
‘The Absolute Prohibition’ ......................................................... 43
II.2.1The Structure of the Convention ........................................ 43
II.2.2 Fundamental Values and Jus Cogens ............................... 44
II.2.3 The Absolute Prohibition of Refoulement......................... 45
II.2.4 Founding Fathers .............................................................. 46
II.3 ‘The Balanced Prohibition’ .............................................................. 47
III.
Absoluteness and Balancing as Aspects of Hospitality...................... 50
III.1 Patterns of Justification .............................................................. 50
III.2 Article 3 and Hospitality............................................................. 51
III.3 The Pattern of Absoluteness in the Case of Salah Sheekh ......... 52
IV.
The Metamorphose Reassessed: Our Procedure and Hospitality.... 53
6.
Conclusion: The Other Language of the Court ................. 57
7.
Bibliography .......................................................................... 59
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1.
Introduction
The story which will be narrated here, has as subject a sort of duel. It is a duel between two very unequal
opponents; between an extraordinary powerful, strong and callous state and a small, anonymous, unidentified
individual (…) He finds himself constantly in defence. He wants nothing more than protect that what he, as
difficult as this can be, sees as his own personality, his own life and reputation. The state, in which he lives and
with whom he is in conflict, constantly attacks him with excessive cruel and unsubtle means.
1
S.Haffner, Geschichte eines Deutschen – Die Erinnerungen 1914-1933, p. 1
I.
Outline
11 January 2007. The European Court of Human Rights (further: Court or ECHR) holds in the
case of Abdirizaq Salah Sheekh, that ‘the applicant’s expulsion to Somalia would be in
violation of Article 3 of the Convention’.2 This judgement caused a lot of uneasiness in the
Dutch migration scene.3 One of the reasons for this distress was the fact that the Court
declared the case admissible for its own proceedings while the Dutch government had
stressed that the domestic remedies were not exhausted.4 Another reason was that the Court
seemed to create clarity in a long, technical discussion relating to the risk standard of Article
3.5 However interesting these aspects of the judgement are, they are not the subject of this
endeavour. In this essay I have taken the case of Abdirizaq Salah Sheekh as a starting point
for a discussion of the role of Abdirizaq Salah Sheekh’s story in our asylum procedure in The
Netherlands as well as in the case-law of the Court.
After some preliminary remarks in this chapter, I will in chapter two endeavour to
grasp the relation between the story of Abdirizaq Salah Sheekh and the story we make of it in
our procedure. Therefore I will scrutinise what happens with Abdirizaq Salah Sheekh in our
asylum procedure6. In chapter three I will have look at his subsequent case before the Court.
In chapter four I will discuss the philosophy of the French philosopher Jacques
Derrida on hospitality, which I believe to be illuminating for ‘the case of Salah Sheekh’ and
the broader case law of the Court. According to Derrida the question of hospitality beholds an
unsolvable antinomy. He distinguishes ‘The Law of Hospitality’ and ‘the laws of hospitality’.
The laws, in the plural, of hospitality, are the conditional rights and duties as laid down in
treaties and domestic laws. The Law of Hospitality however, enshrines an unlimited,
unconditioned form of hospitality. In order to gain a better understanding of these aspects of
1
Translated from Dutch by ‘the author’ of this essay: ‘Het verhaal dat hier verteld zal worden, heeft als
onderwerp een soort duel. Het is een duel tussen twee zeer ongelijke tegenstanders: tussen een buitengewoon
machtige, sterke en meedogenloze staat en een klein, anoniem, onbekend individu. (…) Hij bevindt zich steeds
volledig in het defensief. Hij wil niets anders dan datgene beschermen wat hij, zo goed en zo kwaad als het gaat,
ziet als zijn eigen persoonlijkheid, zijn eigen leven en zijn persoonlijke reputatie. Dit alles wordt door de staat,
waarin hij leeft en waarmee hij het aan de stok heeft, voortdurend onder vuur genomen, met uitermate wrede, en
weinig fijnzinnige middelen’, The title of the Dutch translation is ‘Het verhaal van een Duitser 1914-1933’, the
English translation is called ‘Defying Hitler: A Memoir’.
2
ECtHR 11 January 2007, Salah Sheekh v The Netherlands, no. 1948/04, p. 48.
3
See for a discussion Spijkerboer 2007.
4
Which is a prerequisite for admissibility see article 35, paragraph 1 of the Convention and footnote 64.
5
See for an overview of this discussion Spijkerboer & Vermeulen 2005, p. 76-81.
6
I use in this essay ‘asylum procedure’ for the assessment of an asylum request before our official authorities,
(e.g. the Immigration and Naturalisation Department, the District Court, the Council of State). I do reckon that
the European Court of Human Rights is technically part of our ‘asylum procedure’, but I keep them within the
‘borders’ of this endeavour separated. I make this virtual division because I want to make the distinction between
us (within our borders) and them (the alien, the asylum seeker, the applicant, Salah Sheekh etc.) as obvious as
possible. Since the Court is a regional (thus not national) institute I have separated them from our procedure, in
order to make the distinction not more complicated then it already seems to be. Furthermore I will try to show in
this endeavour that the way they deal with Abdirizaq Salah Sheekh is crucially different.
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hospitality this will be related to the work of the Lithuanian and French philosopher
Emmanuel Levinas and his notions of the other and the third.
In chapter five I will demonstrate that it is possible to get a better understanding of the way
the Court’s case law and the ‘case of Salah Sheekh’ if understood from the perspective of
Derrida’s notion of hospitality. Therefore I will first discuss the case law of the Court on the
prohibition of refoulement, as has been read into Article 3 of the European Convention on
Human Rights7 (further: Convention). It will be shown that the Court has two distinct lines of
argument in this case law which are seemingly contradictory. On the one hand the Court
stresses that the prohibition of torture as laid down in Article 3 of the Convention, and
therewith the prohibition of refoulement, has an absolute character enshrining one of the most
fundamental values within the Convention. On the other hand the Court underlines that
inherent in the whole Convention is a search for a fair balance between the demands of the
community and the individual. According to the Court the provision is thus at the same time
absolute and relative, a position which seems for the majority of the legal practice
problematic.8
Subsequently I will relate the ‘absoluteness’ position within the discourse of the Court
to the Law of Hospitality and the ‘balancing’ position to the laws of hospitality. With
discussing the procedure relating to Abdirizaq Salah Sheekh one gets a better insight in the
way we deal with the singular alien. Moreover, it provides us insight in the relation between
the singular alien at our border and our general laws which apply on him, another important
feature for Derrida. The tension between these two aspects becomes apparent in the way we
change the story of Abdirizaq Salah Sheekh during the procedure to our version of it.
In combining these discourses and situating the story of Abdirizaq Salah Sheekh and
‘the applicant’ (we shall see that these are distinct figures) within these schemes I hope to
illuminate both the case law of the Court relating to its prohibition of refoulement in Article 3,
as well as the way we deal with people like Abdirizaq Salah Sheekh in our asylum procedure.
The central question of this endeavour is therefore: Can I find, drawing on the work of the
French philosopher Jacques Derrida, an analytical framework to understand the way Dutch
authorities have dealt with Abdirizaq Salah Sheekh in the Dutch asylum procedure and
subsequently the way the Court has dealt with him and the Dutch procedure in its case-law?
II.
This Endeavour
So far I have used the ‘first person singular’ in this introduction. One of the objectives of this
essay is to make the dichotomy between us and the singular alien at our borders apparent.
This dissimilar relation between us and the singular alien is paradigmatic for field of
migration law. In the migration sphere we decide whether someone can become part of our
society9.10 But not only do we decide upon his entrance, we also force him to adjust to our
language.
7
Convention for the Protection of Fundamental Rights and Freedoms, Council of Europe 4 November 1950,
entry into force 3 September 1953, available at
http://www.echr.coe.int/ECHR/EN/Header/Basic+Texts/Basic+Texts/The+European+Convention+on+Human+
Rights+and+its+Protocols/ (visited 11 November 2008).
8
See e.g. Terlouw 2008, but also the dissenting judges with the ECtHR 27 May 2008, N. v. United Kingdom, no.
26565/05.
9
It goes too far to problematise the word society within the context of this endeavour, we denote with ‘society’
(the land between the fixed borders of )‘The Kingdom of the Netherlands’. For a radical criticism of notions
such as society see Schinkel 2007.
7
To understand the problematic character of this latter point, it might be helpful to use
some insights borrowed from the French philosopher Paul Ricœur, who’s thinking is familiar
to Derrida’s (and Levinas’). According to Ricœur every interpersonal relation we (or I)
undertake with the other is framed in the institution of language. This language is however
more than a shared set of common rules to distinguish one language from another. Ricœur
stresses that it also encompasses a ‘rule of certainty’ which denotes that I expect that
everyone will ‘mean what he or she says’.11 Since the alien does not speak our language, he is
the moment he arrives at our border already in a disadvantaged position: he does not fall
under our rule of sincerity. In this situation the alien is thus subject to our laws and rules
relating to migration law12, but not to our rule of certainty.
Derrida also sees this problem and underscores that requesting from the alien that he
should speak our language, is the first violence upon his otherness. This is, according to
Derrida, where the question of hospitality begins. This dissimilar relation we have towards the
alien is thus not only given by the circumstances of adjudication in general, or the migration
sphere in particular, it is moreover given by the question of language. To make this
dissimilarity clear during this endeavour, I will write in the plural when discussing the ‘case
of Salah Sheekh’ in chapter two. Beside the rationale described above, this can also be
understood as an attempt to take away the suggestion that this essay is written from an
outsider (or alien) perspective, because that it exactly what it is not. This essay starts from the
premise that such an Archimedean perspective is not available. This endeavour is therefore in
itself part of the discourse it wants to discuss: it is one of our perspectives.
In the remainder of this essay I will use the first person singular, not only because of
the dichotomy with the ‘we’ of the migration chapters, but also to stress that I take the full
responsibility for what I put to the fore here. I mention this point, which might seem quite
obvious, in particular, because Derrida, the author on whom I lean the most in this endeavour,
is often accused of nihilism and not taking any standpoint. Whereas he would himself
probably not agree upon this13, I do understand that people have read his work in such
manner.
In chapter three Derrida’s perspective on language will be discussed and it will turn out that
he believes that the relation of signifying reference in language is endless, there is thus no
essence to concepts. He further states that essentialist thinking harms the text and its
meanings and even oppresses it. The free play of signs will then be locked within one
meaning. Whereas such a perspective is in itself complex enough, Derrida obfuscates this
further by writing in a quite unclear manner. Instead of making a transparent argument with a
10
The model of spheres has been developed by Michael Walzer in his influential ‘Spheres of Justice’. Walzer
distinguishes between different spheres and upholds a principle of ‘complex equality’ which, to put it simply,
denotes that justice in one sphere may not influence justice in another. Linda Bosniak has however convincingly
argued that such a strict separation of spheres is simplistic as it comes to migration law. The migration sphere
seems to follow someone into other spheres, Bosniak 2006, pp. 40-49. For a nice discussion and overview of
Bosniak’s book see Van Melle 2008. The statement I footnoted here does therefore not serve to say that there
are no other spheres which have influence on membership, I only denote that the migration sphere is an
important one.
11
Ricœur 2000, p. 5.
12
The difference with other fields of law (which are also necessarily obfuscated by the problem of the third) is
that there it is easier to uphold the democratic fiction that the subjects of (those who are subjected to) law are
also the drafters (in an indirect fashion) of these laws. In migration law however, the subjects of law have no
influence whatsoever on these laws.
13
In ‘Force of Law: The Mystical Foundation of Authority’, a lecture held at the Cardozo Law School in 1989,
Derrida even stressed that deconstruction is justice. Justice is however an experience of the impossible, because
it reminds us that justice is to come, that one should remember the future, remembers that justice has not yet
arrived, Derrida 1992, p. 67-68.
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head and a tail, his writing is very evocative and fragmented. It seems that he wants to
underscore his perspective on language by showing the endless signifying possibilities
language has to offer. He thus takes ample opportunity to make use of ambiguity of certain
concepts in order to dismantle a certain field of oppositions.14 Whereas this nicely fits into
his perspective, it often makes it hard to follow his argument (or it takes at least many
readings). It also leads to the idea that not only notions and concepts seem to be hard to pin
down, but also Derrida himself. He is often been accused of merely provocation and
undermining a certain field of scholarship in a very ambiguous manner.15 Moreover, Derrida
has often been blamed for merely criticising a certain field of oppositions without taking an
ethical standpoint. Whereas I do not believe that Derrida’s writing is unethical, his point of
view is often mystified by his manner of writing. In order to make my own standpoint as clear
as possible I will in the last chapter use the I-form and try to overcome the difficult and
obfuscating jargon Derrida uses.
III.
His-tory and Our-story
As soon as I started with research, I encountered several conflicting stories around Abdirizaq
Salah Sheekh. In order to conceptualise this and make it easier to write about it in this essay, I
will use two neologisms: his-tory and our-story. If I write about the story of Abdirizaq Salah
Sheekh, or other singular persons who come to our ‘borders’16, I will use the word his-tory17.
When I discuss the story which is constructed in the process of the asylum procedure, I use
the word our-story. This is an analytical distinction which I use to clarify through this whole
essay the dichotomy between the story of Salah Sheekh and our conception of it. Before I use
this however, this distinction has to be problematised in order to understand that we can never
grasp any conception of the his-tory of Abdirizaq Salah Sheekh which is not affected by ourstory.
First of all, I believe that there is no such ‘thing’ as ‘the real story of Abdirizaq Salah
Sheekh’. Even the his-tory Abdirizaq Salah Sheekh would tell (or maybe even think) is an
interpretation (namely his-interpretation) which has been affected by the circumstances of the
moment. This is illustrated by the ‘fact’ (as a matter of speech) that his-tory will change
depending on the given circumstance of the audience, the moment, his feelings etc. The history of Abdirizaq Salah Sheekh will not remain the same even if he would, without
interrupting tell it to a different audience at a different moment.
Secondly, one cannot think, speak or write of a version of his-tory which is not
affected by our-story. The discourse of our migration policy is in our language (ours is Dutch,
I mean Nederlands, I mean Algemeen Beschaafd Nederlands18) and therefore Abdirizaq Salah
14
A nice example is, as we will see in chapter four, his use of the French word ‘hote’ which both denotes guest
as well as host.
15
E.g. ‘the Cambridge affair’ when a proposal to award Derrida a honorary degree at the University of
Cambridge lead to ferocious protest, see Smith 2005, p. 4-8 (with a nice statement: ‘charges Derrida above all
with failing to meet accepted standards of clarity and rigour’).
16
Border is already a word which can only be understood in the context of our migration procedure. The point
here is that we want to generalise the singular persons we would like to address with the word his-tory.
17
Tory is story in Surinam. I have chosen to use his-tory instead of his-story for two reasons. First the usage of
his-story could be confused with a feminist approach in which the word is used to stress that history is in the
strict sense the story of ‘great’ men (his story), thus neglecting the historically unrepresented women, see e.g.
Elam 1994, p. 35. The second reason is that he Surinam word ‘tory’ represents better the alien and ungraspable
aspects of the story of the asylum seeker, Surinam, or better Sranan Tongo, is a stranger language for us than
English, the Western lingua franca.
18
General Decent Dutch, this is the so-called decent use of our language. One could wonder who actually uses
this ABN (GDD), but that is another form of a distinction between his-tory and our-story. We will however not
9
Sheekh must make himself understandable by either addressing us in our-language or ask for
a translation. One has to understand, in more or less the same way, that this translation,
however excellent it may be, necessarily remains a translation. This denotes, as Derrida has
pointed out when he addressed an audience in the United States in English, while his text was
originally written in French and than translated to English, that a translation is ‘an always
possible but imperfect compromise between two idioms’19. In this way his-tory in our
procedure is always already influenced by our-language.20 Derrida links this question of
language with the question of hospitality, which we will discuss in greater extent in chapter
four. According to Derrida it is ‘more just to speak the language of the majority, especially
when, through hospitality, it grants a alien the right to speak’21. Without getting into the
connection between language and hospitality at this point, it is interesting to note that if there
is such a relation, this essay might in itself be a hospitable endeavour, since it is written in
English instead of the primary language of the migration procedure in question22
This is however, not the only way in which his-tory is being influenced by our-story.
The ‘fact’ that Abdirizaq Salah Sheekh is requesting for asylum in The Netherlands makes
that he wants a residence permit and will adjust his-tory in such a manner that he deems it
most likely that we will grant him this permit. Thus his-tory is adjusted in order to enhance
his chances in our procedure. Then in our procedure the his-tory is structured by the actual
questions we pose. These questions structure the aspects of his-tory which Abdirizaq Salah
Sheekh thinks to be relevant for his-tory. Furthermore, the environment in which the initial
hearing is taken can be of great influence for the way he arranges his-tory. The sometimes
harsh and direct way of interrogation in the procedure can be of great influence. Finally (this
is obviously not an exhausting list) our translation of the spoken words of Abdirizaq Salah
Sheekh into the written procedural documents is another layer of (our) interpretation. It has
been shown that there can be a great difference between the words expressed in the interviews
and the words which can be found in the procedural documents. 23
touch upon this within this endeavour, for an interesting discussion of such a dichotomy in the integration sphere
see Schinkel 2008.
19
Derrida 1992, p. 5. According to a research of Nienke Doornbos translators are important and active
participants in the interaction between asylum seeker and government official. One of the reasons for this is that
translators often try to make the procedure more efficient (for the IND), Doornbos 2003, p. 196-227.
20
Or if the translator is English, then our interpretation of the English of the interpreter who interprets from the
‘original’ language.
21
Derrida 1992, p. 5.
22
and the native language of ‘the author’. Obviously one should not overestimate this point, since English can be
seen as the lingua franca of the European asylum procedures. However, the asylum seeker from Somalia, the
Dutch migration practitioner and ‘the author’ have in common that they are not at home in the English language.
This implies that a certain hospitality is present from the moment this endeavour commences.
Where possible ‘the author’ has used the available English translation of cited books, articles, policy documents,
laws and other documents. Such translation did however not always exist (e.g. the first interview and detailed
interview, the letter of intention, the decision of the Salah Sheekh file, etc.), in such instances this has been
translated by ‘the author’, which makes Derrida’s remark on the imperfection of the compromise even more
accurate. Occasionally ‘the author’ has used the original German or French citation if the proper English
translation was unavailable. See on ‘the author’ and ‘signatures’, Derrida 1982a, pp. 327-330.
23
See for an interesting sociological analysis related to these points Doornbos 2003 en Doornbos 2006.
Doornbos distinguishes in an interesting chapter on the ‘construction of the asylum dossier six different phases.
The story is being transformed to a statement which is being used for the decision. The different phases are
subsequently: 1. From occurrence (‘gebeurtenis) to memory (‘herinnering’), from memory to story (‘verhaal’),
from story to statement (‘verklaring’), from statement to report (‘verslag’), from report to dossier and from
dossier to decision, Doornbos 2006, p. 39-51.
2.
The Metamorphosis
I.
Introduction
In this chapter we have a look at the case of the Somalian asylum seeker Abdirizaq Salah
Sheekh who applied for asylum at 12 May 2003 (we will see that this is our date and not his).
We will analyse what happens with Abdirizaq Salah Sheekh’s story, or better his-tory, in our
asylum process in the Netherlands. Therefore we will, after having made some brief remarks
on the asylum procedure in the Netherlands, scrutinise the his-tory in the different phases of
the procedure. First we will have a look at the initial and detailed interviews with Abdirizaq
Salah Sheekh in the beginning of ‘his’ asylum procedure. In this phase we will see that
something interesting happens relating to Abdirizaq Salah Sheekh’s identity, travel route and
age. We will therefore follow these aspects of his-tory with greater attention in the subsequent
phases of the asylum procedure, the letter of intention and the decision. After the decision we
will analyse how the ‘case of Salah Sheekh’ further evolves before the European Court of
Human Rights.
As mentioned before, we get to know Abdirizaq Salah Sheekh via his (or maybe more
accurate, our) asylum procedure which we find in the Abdirizaq Salah Sheekh file.24 Before
we will have a closer look at the ‘case’ of Salah Sheekh, we will first briefly introduce the
way our asylum procedure is structured for those of us who are not familiar with our laws of
hospitality.
I.1
Asylum Procedure
The Dutch asylum procedure commences the moment the alien requests for asylum.25 After
this request the asylum seeker has to be available for the investigation at a therefore specially
appointed place.26 As soon as possible a first interview (eerste gehoor) takes place.27 In this
interview the alien is not yet questioned about his motive for asylum, but merely about his
identity, nationality and travel route.28 After this first hearing, a decision is being made as to
whether the case can be dealt with within the accelerated asylum procedure (48-hours
procedure).29
Subsequently the asylum seeker is being subjected to a detailed interview which
mainly focuses on his motive to leave his country of origin and on the results of the
investigations into the alien’s identity, nationality and travel route.30 The alien receives a copy
of the report from the detailed interview and can submit corrections and additional
information within a limited period of time. If the Minister consequently intends to reject the
application, he has to provide the alien, before he rejects the application, a letter of intention.
24
Thanks to the hospitality of Flip Schüller, attorney with Böhler, Franken, Koppen, Wijngaarden law firm, we
were able to scrutinise the dossier of Salah Sheekh. We actually brought the dossier home, which might be the
ultimate form of domesticating the his-tory of Abdirizaq Salah Sheekh.
25
Kuijer et al. 2005, p. 259.
26
Article 31, paragraph 2, under b Vreemdelingenwet 2000 (Alien Act 2000, further Vw 2000). See Kuijer et al.
2005, p. 261. This is a euphemistic way of saying that the alien will be detained for the time of the investigation.
27
Article 3.110 Vreemdelingenbesluit 2000 (Alien Decree 2000, further Vb 2000).
28
Article 3.110, paragraph 2 Vb 2000, see also Kuijer et al. 2005, p. 261.
29
There is currently a new proposal for the Alien Act which should change the legal protection for asylum
seekers, we will however not deal with this proposal in the course of this endeavour, Kamerstukken II 2006/07,
30830, nr. 1. See for a very precise description of the Dutch accelerated asylum procedure Slingenberg 2006.
30
Article 3.111 Vb 2000, see also Spijkerboer & Vermeulen 2005, p. 209-211.
11
This letter of intention should provide the alien with an opportunity to give a substantial
reaction to it.31 The alien can express this in a written view on the letter of intention.32 Finally
the Minister will give a decision.33 If the Minister rejects the application, the asylum seeker
can appeal this with the District Court of The Hague (which also sits at other Districts Courts
of the Netherlands) and subsequently against an adverse decision by this Court it can lodge an
appeal with the Council of State.34
II.
The interviews with Abdirizaq Salah Sheekh
II.1
The his-tory of Abdirizaq Salah Sheekh
As everyone who applies for asylum in The Netherlands, Abdirizaq Salah Sheekh is first
subjected to an interview in order to gain more information about his identity, date of birth,
nationality and travel route. As mentioned earlier, this first part of the procedure is explicitly
not meant for an inquiry into Abdirizaq Salah Sheekh’s motive to apply for asylum.
Apparently the separation between this initial interview, which is for the identity, nationality
and travel route, and the subsequent detailed interview, for the motives or reasons behind the
application, is quite strict. The Alien Circular even states ‘In practice it often happens that the
alien already during the first interview, without being asked, commences with his asylum
story. In that case the alien is being informed that his motives for asylum will be addressed
not earlier than in the detailed interview’35. The rationale behind this distinction is, according
to the travaux préparatoir of the Alien Decree, that the alien is granted a period of rest before
he puts forward his-tory.36 Apparently this is so important that we grant the alien this period
of rest even if he starts of with his asylum story himself.
There is however more to say about this rigorous distinction in the procedure. We also
see an interesting separation between the asylum story of Abdirizaq Salah Sheekh and his
name. We first ask for his name and identity before we are interested in what he has to say
about his asylum request. So he first has to make himself known in our language, or at least
after a translation into our language. This denotes that he tells us in our language what his
name, age, date of birth and nationality are, but it also means that we only understand what he
says if he objectifies this with documents. So part of our language, part of our procedure is
that we want to ‘objectify’ his-tory and thus already his-name, his-age and his-nationality For
now it is enough to note that this distinction in the procedure is not only for the benefit of
Abdirizaq Salah Sheekh, but fits very well in our procedure with our objectives. But let us not
go too fast, we will get back to this point in chapter five.
In our endeavour we will not use this distinction between the initial and detailed
interview as strict as the IND does. For our purposes it is not necessary to isolate the ‘facts’
about Abdirizaq Salah Sheekh’s identity, his nationality and travel route from the rest of history. We will rather structure his-tory in order to illuminate the metamorphosis Abdirizaq
31
Article 39, paragraph 1 Vw 2000, Spijkerboer & Vermeulen 2005, p. 213-215, Slingenberg 2006, p. 6.
Article 39, paragraph 2 Vw 2000, Spijkerboer & Vermeulen 2005, p. 215-216.
33
Article 42 Vw 2000.
34
Spijkerboer & Vermeulen 2005, p. 238-256, see also Slingenberg 2006, p. 7.
35
Vreemdelingen Circulaire 2000 C 12/1.1 (Aliens Circular 2000, further Vc 2000). In chapter three we will
discuss this use of the word ‘alien’.
36
Nota van toelichting bij het Vreemdelingenbesluit 2000, Stb 2000, 497, p. 175. It seems however unlikely that
this is the only rationale behind the separation. The so-called ‘proces-beslissing’, the decision as to whether the
application should be dealt with under the AC-procedure (48-hours procedure), is taken on the basis of
information out of the first interview. Whereas this is a very important decision, with a massive effect on the
asylum procedure of the alien, we will not get into this in the course of this essay. For an extensive discussion
see Slingenberg 2006.
32
12
Salah Sheekh seems to undergo. Therefore we will first listen to Abdirizaq Salah Sheekh’s
own summary of his-tory as we find it in the extensive interview:
‘I was five years old when the war started in Somalia. I lived with my family in Mogadishu. We
had to flee to the village Nuuh. We have encountered several problems since the moment we
arrived there. I belong to a minority tribe. We were too powerless to protect ourselves. We have
lost our valuable belongings, we have been robbed. During our stay in the village we have been
threatened with death, we have been assaulted. ‘We’ is the whole family and myself. My sister is
raped. My mother is almost raped. She has been harassed by men. A year ago my brother has
been killed while he was working in his grocery store. He was assaulted by armed militia. That is
almost a year ago. My mother has always tried to sell goods on the market for our maintenance.
She has been harassed by armed militia who were in power. She has been robbed and assaulted
on the market. Or even at our home. The militia came to our home for money. Life was just
harsh, we could not protect or defend ourselves. Sometimes we slept without eating and
drinking, because my mother’s daily profit was stolen by the militia. When they visited us times
were really hard, it were times of intimidations. They had weapons, we were held at gunpoint. At
one of those occasions my younger brother Ali has been tortured by the militia in such a grave
manner that his arm was broken. During this visit I have also been tortured. I received a tough
blow. They hit me with the butt of a gun. My forehead has been injured. It left me with a scar.
Life is rough in these days since the fall of the government. There are no public authorities who
protect the civilians and minorities. We were helpless against the aggression of the militia who
attacked people every day and night. To our dismay I lost my father in 1995. He passed away.
Times became even harder for us by then. There was no hope to stay any longer. My life was
threatened. I ran a great risk of being killed by the militia who haunt for minorities. It became
unsafe. There was no order. Because of these facts and circumstances and problems, my mother
and I have discussed the possibilities of leaving the country.’37
This story of Abdirizaq Salah Sheekh was told by himself without interruption and without
specific questioning by government officials. It is actually one of the few moments in the
initial and extensive hearing that we have the impression that Abdirizaq Salah Sheekh is free
to express his own view on his-tory (we already noted in chapter one that his view on his-tory
is also being affected by our-story). In the remainder of this paragraph we will analyse how
we have restructured and reconstructed our conception of Abdirizaq Salah Sheekh’s his-tory
in the initial and detailed interview. As mentioned earlier we do not understand Abdirizaq
Salah Sheekh’s version of his-tory as the only ‘real’ story and the rest of the interviews as our
‘fictional’ version of ‘it’. We are not that much interested in this ‘realism’ question, we are
rather fascinated by the differences between these stories and the way these differences are
being used in our asylum procedure. But before we go to the next paragraph we would like to
make another adjustment to his-tory of Abdirizaq Salah Sheekh. For reasons of readability we
will make a ‘first’ infringement to his-tory of Abdirizaq Salah Sheekh, from now on we will
only dub him by his ‘surname’ (‘Salah Sheekh’). This is the ‘commencement’ of a
metamorphosis which will not end before the last word of the next chapter (or even last word
of this essay). From now on we will denote Abdirizaq Salah Sheekh as Salah Sheekh.
II.2 Salah Sheekh’s Identity and Travel Route
“ ‘Also’ sagte der Untersuchungsrichter, blätterte in dem Heft und wandte sich im Tone einer Ferstellung an K.
‘Sie sind Zimmermaler?’ ‘Nein’ sagte K., ‘sondern erster Prokurist einer großen Bank.’ ”
Franz Kafka, der Prozeß, p. 39.
According to standard policy the government official will in the first interview question the
‘asylum seeker’ in any case about his name, date of birth, place of birth, nationality, ethnic
37
Salah Sheekh, Report of the detailed interview (nader gehoor), p. 3, the quotations around ‘we’ are from the
original.
13
origin, the date of his departure from the country of origin, the date of his arrival in The
Netherlands, his possible stay in other countries, his travel documents and documents to
establish his identity.38 It goes to far to discuss all the questions the government official has
for Salah Sheekh, in this paragraph we will however, focus on some particular aspects of the
interview.
At the beginning of the interview the official makes some statements. He stresses that it is
important to check whether Salah Sheekh’s name appears clearly in the document, that the
interpreter is impartial and that this initial interview is meant for the determination of his
identity, nationality and travel route.39 He furthermore emphasises that Salah Sheekh can
speak freely40, that everything he says will be used confidentially and that it is important that
he speaks the ‘truth’. Especially these last statements strike our attention. What does it mean
to speak freely, that his statements are safe with us and that he should speak ‘the truth’?
The first two statements should probably be understood as being interrelated. It seems
plausible that these statements are meant to bring Salah Sheekh at ease with the situation and
to convince him that he has, contrary to the situation where he came from, nothing to fear for
as long as he is with us. In other words, he can trust us and tell us everything as long as it is
‘the truth’. The question remains however in which truth we are interested. We already
acknowledged in the first paragraph of this chapter that we deem it difficult to find ‘the story’
of Salah Sheekh or ‘the truth’ about Salah Sheekh. What are we saying then when we stress
that he should speak ‘the truth’? Do we mean that he should not willingly withhold
information which is relevant for our-story or for his-tory? In other words, does ‘the truth’
denote our version of it, or his? And if he should only speak our-truth, what does this say
about our former statement that his statements are safe with us and more important that he can
speak freely? Is this our-free speech? And is Salah Sheekh safe with us then? We will leave
these questions for what they are now and get back to it when we discuss our-story, in
paragraphs III and IV.
In the remainder of this paragraph we will discuss the questions relating to his passport, travel
documents and travel route. It appears that Salah Sheekh has used a Kenyan passport, which
he used, according to himself, to travel from Kenya to Istanbul and from Istanbul to
Amsterdam. He had to give back the document to the travel agent every time he had passed
customs. In the interview the government official seems a bit surprised that Salah Sheekh did
not keep the documents for himself in order to prove his travel route as soon as he arrived in
The Netherlands. Salah Sheekh subsequently declares that the travel agent arranged
everything and decided that he should use this false passport. The travel agents also provided
for a Somalian passport to get from Somalia to Kenya. Salah Sheekh furthermore declares
that he never had an authentic passport (nor any other identity document) in his possession,
since it is impossible to get such a document in Somalia.
This brings the government official to ask: ‘How do you think to convince the Dutch
authorities that you are who you say you are when you do not have any documents with you?’
Salah Sheekh answers: ‘I speak the truth. When the former regime was in power, I was really
38
Article 3.44 Voorschrift Vreemdelingen 2000 (further: VV 2000).
As we saw even his-name is already being influenced by our-story, this is further illustrated by the fact that in
one of the early documents he fills in his name in his own alphabet and also with the use of our letters (which is
totally distinct).
40
In Dutch it is literally ‘that he can speak in freedom’, we have translated this with ‘freely’ as in the Dutch
‘vrijuit spreken’. We think this is the connotation the official might had in mind (or the drafter of the
questionnaire). It would be really odd if we would have used the word freedom here since Salah Sheekh is held
detained at the border and it is not particularly free at that moment. Furthermore one could hardly think of a
more vulnerable and dependent situation than that of a person who asks for asylum.
39
14
young. I did not have a chance to get hold of those documents’41. We already see a divergence
between our-truth and his-truth here. Salah Sheekh states that the government officials should
be convinced by his-tory because he is telling ‘the truth’, or because it ‘is true’. At the same
time we see that the government official equates convincing arguments or ‘the truth’ (we
assume that ‘the truth’ is convincing enough for the government) with the documents which
‘prove’ certain statements. If those documents are present and we are convinced that they are
‘official’ (which denotes that the document is produced by the authority which issued it and
that this authority was authorised to issue it42), we hold these statements, or ‘these truths’, to
be self-evident.43 So at the beginning of the interview we instructed Salah Sheekh to speak the
truth, but apparently the truth of Salah Sheekh, his-truth, is not convincing enough for us. We
need a truth which is based on ‘official documents’, in other words our-truth.
There is however another aspect of Salah Sheekh’s his-tory we are suspicious about: his travel
route. Related to his travel route Salah Sheekh makes the following statement in the first
interview:
‘My uncle and mother have arranged everything for me. I went to Mogadishu on 1 May 2003
with a truck. My uncle accompanied me in this truck. I stayed one week with my uncle in the
district of Abdulaziz. My uncle arranged the Somalian travel agent. The agent asked for a
passport photograph in order to arrange a passport for me. The agent, myself and Abduqadir took
the plane from Mogadishu to Nairibi (sic). We flew with a small plane which transported
narcotics, Qat-Chat. We arrived in Nairobi Airport from where we took a taxi to the hotel, from
where the travel agent arranged the documents for our journey to Europe. Where exactly we
were heading to in Europe was unknown.’
Upon one of the question of the government official Salah Sheekh furthermore states that he
and the travel agent could not speak the same language and were therefore unable to
communicate (properly) with each other. Whereas the government official does not ask too
many questions specifically relating to his travel route, Salah Sheekh’s lack of travel
documents seems to puzzle the official. We will see in paragraph III that we hold Salah
Sheekh responsible for this lack of official documents.
II.3 Salah Sheekh’s Age
Another interesting aspect which we find in the initial interview, relates to the age of Salah
Sheekh. The initial interview commences with Salah Sheekh’s statement that he is 17 years
old and born on 23 February 1986. The government official asks how he knows that he is of
this particular age. Salah Sheekh subsequently states that he believes that he must have been
born in 1986, since he knows that there was a three-year difference between himself and his
brother. It turns out that Salah Sheekh does not know any precise date of birth of one of his
family members, nor does he know the date of the death of his brother or his father.
On the base of this information the government official decides that there are serious
doubts about the age of Salah Sheekh. He therefore proposes that Salah Sheekh undergoes an
41
Salah Sheekh, Report of the first interview (eerste gehoor), p. 6.
Boeles 2003, p. 16. Boeles points out that it is not necessary the case that these official documents reflect the
true or real facts. Whereas we do agree with his obfuscation of the necessary link between official documents
and ‘truth’, we do not however share his premise that there is one unambiguous truth (after all). The point here is
rather that we can distinguish between our-truth and his-truth and that these official documents are part of ourtruth and our-procedure.
43
According to the Afdeling a legalised document is an official foreign document which we hold to be genuine
in order to use it in our legal order. Such a legalised document has evidential value and the facts which are
mentioned in such a document are held to be correct, see Boeles 2003, p. 28.
42
15
examination to ‘determine his ‘real’ age.44 The official acts hereby in accordance with the
policy which states: ‘When the involved asylum seeker asserts to be minor, but does not
succeed to prove his age with documents or make it plausible in another manner, the hearing
official of the IND has to determine whether there (…) are so many doubts about the alleged
age that the involved should be in the opportunity to prove his age with the help of an
examination to establish his age’45. The question remains however, why the government
official has these doubts about the age of Salah Sheekh. Is it just because he does not have
official documents to prove his age? That would mean that we are again faced with a
divergence between his-truth and our-truth.
Anyhow, Salah Sheekh agrees with the offered examination of his age. According to the
results of this examination it is established, with a certainty of 95% or higher, that Salah
Sheekh is 21 years or older (and with a certainty of 99,9% that he is 20 years or older).46
Therefore the government official commences the detailed interview with some question
related to Salah Sheekh’s age. Salah Sheekh restates that he is 17 years old and that he
believes his date of birth to be 23 February 1986. He states that his mother told him that he
was born on this date when he was 10 or 13, because he had to inform his teacher in his
Koran lessons about his age. She told him that he was five years old when the war in Somalia
started. The following conversation unfolds:
- Government official: ‘On 19 May 2003 you have, on your own request, undertaken an
examination of your age. Contrary to your testimony that you are born on 23 February 1986,
it appeared that you are 20 years or older. What do you think of this?’
- Salah Sheekh: ‘I do not trust these results. I rely on the age and the words my mother told
me.’
- G.O.: ‘Do you stick with your statement that you were born on 23 February 1986?’
- S.S.: ‘Yes. Again, the doctor has examined me. He does not know my date of birth. I have
an age of my own. That is the date of birth I have been given by my mother.’
- G.O.: ‘I, rapporteur, explain to the person involved that he is given the date of birth 1
January 1983, since it appeared that he is 20 years or older’
-S.S.: ‘I do not agree with this. That I just get another age. I have an age of my own. That is
the date of birth I have been give by my mother.’47
Let us have a closer look on what is exactly happening here. First of all, we denote that the
government official says that the examination was held on Salah Sheekh’s own request.
Earlier in the dossier we found that it was the government official who had doubts about the
age of Salah Sheekh (contrary to Salah Sheekh himself, who is determined that he is 17 years
old). Because of these doubts of the official the policy is that ‘an examination to determine
the real age is offered when there are doubts about his age’48. So first we doubt his-tory and
44
In the words of the Alien circular ‘an examination to determine the real age is offered when there are doubts
about his age’, VC 2000 12/1.3 [emphasis added]. As if we do him a favour by not believing him and instead
give him the opportunity to prove our truth.
45
VC 2000 C 12/1.3. It is however not explicated what ‘make it plausible in another manner’ could denote.
46
Apparently there seem to be more ‘scientific doubts’ about these results possible than the IND wants us to
believe. There are several rapports of the National Ombudsman which criticise the results of the IND (e.g.
Nationale Ombudsman 30 September 2005, 2005/299; Nationale Ombudsman 6 June 2001, 2001/156).
Furthermore it has been argued that the IND neglects to incorporate anthropological conditions, such as the
ethnic origin of the person who is being examined, his or her sex, nor does it take into account whether someone
has suffered from a disease.
47
Salah Sheekh, Report of the detailed interview (nader gehoor), p. 3, emphasis added.
48
VC 2000 C 12/1.3.
16
than we offer him a possibility to take away our-doubts. Who are we doing a favour then,
Salah Sheekh or ourselves?
But in the detailed interview it goes even further, the government official states ‘you
have, on your own request, undertaken an examination’. How can we understand this
statement to be in accordance with the statements of Salah Sheekh that he does not have any
doubts about his age? We did see that he agreed upon an examination, but that is obviously
something different than requesting for such a test. Is the government official confused?
Furthermore, we notice that Salah Sheekh on his account doubts the results of the
examination. He questions the possibility that someone else, who does not know him, let
alone his-tory, knows his ‘real’ age. He states ‘I have a date of my own’. The official is
however not convinced by Salah Sheekh’s conviction and ‘provides’ him a new date of birth.
Now we have two conflicting stories about Salah Sheekh’s age, his-tory and our-story. We
give priority to our-story since this is based on ‘facts’ and ‘reliable’ research and therefore
replace Salah Sheekh’s age by an age, which happens to be in our favour49. We will however
see in the following that this is not the only consequence of Salah Sheekh’s new birthday.
III. The Case of ‘the Applicant’
‘You have in former times, during mental breakdowns, believed in it, but now you do not believe it anymore.
You only persist, because you are in a tight corner. What do you think to achieve with this? The judicial
authorities have done everything to assist you. Kilo’s and kilo’s of paper have been used for your case. And this
in times which such a shortage of paper. The files are stacking.‘
Hermans, The Darkroom of Damocles, p. 31850
As described in paragraph II.1 the next phase of the asylum procedure, after the first and
detailed interview, is the decision of the Minister. If the Minister intends to reject the
application for asylum, he will however provide the asylum seeker with a letter with his
intention. In this paragraph we will discuss both this letter of intention as well as the decision
of the Minister related to Salah Sheekh’s request for asylum.
III.1 The Letter of Intention
The letter of intention of Salah Sheekh is dated on 3 June 2003, three weeks after his request
for asylum. The letter of intention seems to be an automatically generated document in which
the Minister can choose from several possibilities on which grounds the request can be
rejected.51 Referring to Article 31 Vw 2000 the Minster states that the alien has not made a
plausible case that his application is based on circumstances which constitute a legal ground
for the issue of the permit. According to standard case-law of the Afdeling
Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the
Council of State, further: Council of State) this provision should be read as a procedural rule,
which states that the alien should make a convincing argument that there are grounds to grant
49
It is much easier for us if Salah Sheekh ‘turns out to be’ an adult, because of all the different legislation for
unaccompanied minors.
50
‘Je hebt er vroeger, tijdens geestelijke inzinkingen, in geloofd, maar nu geloof je het niet meer. Je blijft alleen
volhouden omdat je in het nauw zit. Wat denk je daarmee te bereiken? De justitie is je op alle mogelijke
manieren ter wille geweest. Kilo’s en kilo’s papier zijn er in jouw zaak verwerkt. En dat in en tijd waarin er zo’n
gebrek aan papier is. De dossiers blijven zich opstapelen.’.
51
This might just be our impression, let us for now just denote that it is apparently, from the perspective of the
government, possible to deduce the singular his-tory of Salah Sheekh into a standardised form (only in case there
is an intention to reject the request obviously).
17
him a residence permit.52 In paragraph 2 of Article 31, to which the Minister subsequently
refers, we can find ‘facts’ which shall be taken into account, among other things, in the
screening of the application of the asylum seeker. If ‘facts’, as described in these paragraphs
have occurred, the alien is faced with a heavier burden of proof.53 So the Minister will not
merely on the base of these ‘facts’ come to the rejection of the request, but we do expect from
the alien a great effort to make his case convincing.
In his letter of intention to Salah Sheekh the Minister refers to Article 31 paragraph 2
sub f Vw 2000 as one of the ‘facts’ which should be taken into account in the assessment of
the request. This article states ‘in support of his application the alien is unable to produce a
travel document, identity card or other papers necessary for assessment of his application,
unless the alien can make a plausible case that he is not to blame for their absence’54. The
form furthermore states ‘(x) Travel route a/o no verifiable coherent statement concerning
travel route’55. This statement leaves us a bit puzzled, apparently the story of Salah Sheekh
fits into this ‘category’. But the form also provides us the reasons why the lack of documents
is applicable to Salah Sheekh:
‘The statement of the applicant that he has been accompanied during his journey by a travel
agent, who kept all the travel documents in his possession, is insufficient to exonerate him from
the absence of any travel documents. Neither has the applicant grounded his travel route with
detailed and verifiable statements. The fact that his travel route finally has been determined, and
that became clear which travelling documents he used to travel to the Netherlands, does not
change this case since this information has not been determined with the assistance of the
applicant.’56
So first we do not believe Salah Sheekh’s statement that he was not responsible for his travel
documents, or at least if we would believe it, it is not enough to exonerate him from the lack
of travel documents. Subsequently we do not believe his-tory of his travel route at all, since it
was not detailed enough and hard to verify. And finally we stress that the fact that we have
determined which travelling documents he used, and that we found out which route he used,
does not change the situation, since he did not help us to come to this conclusion. So first we
do not believe his-tory since it does not comply to our standards of ‘truth’ and ‘objectivity’.
But when we establish, in accordance with our standards, what Salah Sheekh’s travel route
‘was’ and which travelling documents he used, we blame him for not helping us to reach our
conclusion.
The next argument of the Minister relates to the credibility of his-tory. The form states
‘Contradictory/no/false statements relating to: (x) age: found to be adult after age
examination’. Again a mysterious sentence which seems to come from an automatic
generated form, it becomes however interesting if we have a look at the explanation:
‘Applicant has given false statements as to his age and also persisted, after he was confronted
with the results of the age examination, that he was born on 23 February 1986 and thus currently
17 years old. The above is severely detrimental to the overall credibility of his asylum story.’57
52
Spijkerboer & Vermeulen 2005, p. 147. E.g. ABRvS 27 January 2003, RV 1974-2003, 57.
Spijkerboer & Vermeulen 2005, 147-149, see also Kamerstukken II 1999-2000, 26732, nr. 3, p. 41.
54
Interestingly enough the alien will also have these problems if he has travel documents which are not his. So
we make a big problem of the ‘fact’ that Salah Sheekh gave the travelling documents to the travel agent, but if he
would have had these documents we would make, on the base of article 31 paragraph 2 sub e Vw 2000, the same
argument, see next paragraph.
55
In Dutch: ‘(x) Reisroute e/o geen verifieerbare coherente verklaringen inzake reisroute’.
56
Salah Sheekh, Letter of Intent, p. 1.
57
Ibid.
53
18
In paragraph II.3 we concluded that there was gap between his-tory and our-story of the age
of Salah Sheekh. Salah Sheekh thought that he was 17 years old, we however, ‘established’
that he was 20 years or older. In this phase of the asylum procedure we see that we have gone
further than determining that there seems to be a gap between the different stories. We say
that Salah Sheekh ‘has given false statements as to his age’. Not only do we prioritise ourstory above his-tory, we also declare his-tory to be false and incredible. Technically this is not
strictly necessary, one could imagine a situation in which we believe our-story to be true and
thereby give priority to it within our asylum procedure, but leave his-tory for what it ‘is’. In
the letter of intent we can see however, that we have gone further, we accuse him for making
statements which we deem false, and we do not only accuse him of this, but also hold him
accountable: his overall credibility has vanished. In paragraph III.4 we will have a look at the
decision of the Minister and touch upon some more aspects which are dealt with in the letter
of intention as well. Before this we will however shortly discuss what has happened to Salah
Sheekh so far.
III.2 The Metamorphosis into ‘the Applicant’
“Als Gregor Samsa eines Morgens aus unruhigen Träumen erwachte, fand er sich in seinem Bett zu einem
ungeheureren Ungeziefer verwandelt.”
Franz Kafka, Die Verwandlung, p. 1
One of the first things that strikes us when we read the decision falls under the paragraph
‘subject of the decision’. First it is stated that this decision applies to an asylum request by an
alien which is filed on 13 May 2003. Subsequently we read who this alien is:
‘Abdirizaq SALAH SHEEKH
born on 1 January 1983 (assigned date of birth after age examination)
with the Somalian nationality.
Mister Salah Sheekh shall further be defined/indicated as ‘applicant’.’
Something remarkable has happened here. It reads like a birth certificate: we are very happy
to announce that we have given birth to an alien, his name is Abdirizaq SALAH SHEEKH,
but we will dub him from now on ‘applicant’. This can be understood as a substitution of the
initial his-tory of (Abdirizaq) Salah Sheekh by the our-story of ‘the applicant’.58
From this moment onwards we no longer see Salah Sheekh, or at least his name
(which is already a substitution as we saw), as the subject of our proceedings, but the abstract
word ‘applicant’. Apparently we have to move away from the personal his-tory and replace
this by a more general, maybe ‘more factual’, more ‘objective’ story. This means that we are
encountered with the surreal situation in which the government official informs Salah Sheekh
who he is, what his age is and how he travelled to the Netherlands, but more important this
does not correspond at all with his own version of these ‘facts’. In the following we will see
that we go even further, we add that this ‘applicant’ is incredible. We can thus rightly say that
58
We have already encountered ‘the applicant’ a couple of times in the letter of intent, but his appearance
becomes most apparent at this moment. Furthermore, the ordering of events in written pieces is a construction
anyway, or to quote my favourite novelist José Saramago ‘Writing is an extraordinary difficult endeavour, a
whole responsibility, imagine the work it takes to order events chronologically, first this, then that, or, if this
provides a better effect, the occurrence of today before the episode of yesterday and other, no less daring magic
tricks, the past as if it where present, the present as a continuum without beginning or end, but whatever efforts
writers undertake, one trick they will never control, namely the simultaneous inscription of two simultaneous
events’, translated from José Saramago, Het Stenen Vlot (The Stone Raft), p. 12.
19
one morning Salah Sheekh found himself transformed into a hideous ‘applicant’. From that
moment onwards he has totally removed Salah Sheekh from the proceedings.
In chapter four we will further discuss the birth of this mystical entity, for now we only
register his birth and have a further look at the aspects of the decision which relate to the
applicant and deserve our attention.
III.3
The Decision
After the birth of ‘the applicant’ we are immediately encountered with the outcome of the
present decision, in line with the letter of intention we inform ‘the applicant’ that his request
for asylum is rejected. In the following we will focus on some specific aspects of our
motivation. We will have a look at our conception of the ‘facts’ of the case and will see how
we conceptualise these ‘facts’ in the light of the refugee definition of the Refugee
Convention59 and the prohibition of refoulement as enshrined in Article 3, the prohibition of
torture, inhuman and degrading treatment or punishment, of the Convention. Whereas the
analysis of the relation between ‘the facts’ and Article 3 of the Convention plays an important
role in the case before the Court, we will only have a look at the Refugee Convention to
illuminate the way we understand Salah Sheekh’s his-tory.
First the Minister deals with the question whether ‘the applicant’ could receive a residence
permit because of his alleged refugee status.60 According to the Refugee Convention an alien
who is outside the country of his nationality owing to a well-founded fear of persecution for
reasons of race, religion, nationality, membership of a particular social group or political
opinion and is unable, or owing to such fear, is unwilling to avail himself to the protection of
that country, is deemed a refugee within the meaning of the Refugee Convention.61 According
to the Minister there is, bearing in mind everything that has been said and raised, no
suggestion at all that ‘the applicant’ has well-founded reasons to believe that he will fear
persecution in his country of origin within the meaning of the Refugee Convention. This is a
clear statement, whereas we are not saying that it is impossible that ‘the applicant’ has a wellfounded fear, we stress that with the information we have do not have any indication to
believe it. To reach this conclusion the Minister has two arguments. Firstly, the asylum story,
or better the his-tory of ‘the applicant’ is incredible and secondly, even if this story were
reliable, it is deemed insufficient to qualify for a refugee status. Let us discuss these two
arguments as such and start with the credibility.
III.3.1 The Credibility of ‘the Applicant’
Then, on the fourth day, on a moment nobody was there, Basini came to him. He looked deplorable, his face was
pale and skinny, a constant fear reflected in his eyes. While nervously looking around he hurriedly stammered:
‘You got to help me! You are the only one who can! I can no longer stand it, they torture me so much. All the
previous I could bear…but if this continues, they will beat me to death’ Törless found it difficult to respond to
this. Finally he said: ‘I cannot help you. Everything what has happened to you is your own fault.’
Robert Musil, The Confusions of the Young Torless, p. 13762.
59
Convention relating to the Status of Refugees, UN 28 July 1951, entry into force 22 April 1954, available at
http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (visited 11 November 2008), Trb. 1954, 88.
60
Article 29, paragraph 1, section a Vw 2000.
61
Article 1(A) Refugee Convention.
62
This is a very imperfect translation from a Dutch translation of the original German text. The Dutch translation
states: ‘Toen, op de vierde dag, op een ogenblik dat er net even niemand aanwezig was, kwam Basini naar hem
toe. Hij zag er erbarmelijk uit, zijn gezicht was bleek en mager geworden, in zijn ogen flikkerde de koorts van
een voortdurende angst. Zenuwachtig om zich heen kijkend bracht hij haastig en hortend uit: ‘Je moet me
20
Most of the questions relating to the credibility of the his-tory of the applicant have been
discussed in the letter of intention already. We will however reiterate these different aspects
in this paragraph.
In the finding whether the request for asylum should be granted or rejected it is, according to
Article 31 section 2, under f Vw 2000, important that the alien does not have any documents
to base his-tory, or more in particular to base his identity, nationality and travel route on. The
Minister stresses that ‘the applicant’ has a responsibility of his own to prove his identity and
nationality by providing relevant documents. The ‘fact’ that he does not possess these
documents is his responsibility. Since ‘the applicant’ has to provide full cooperation to
establish his identity and nationality, his statement that he had to hand over the documents to
the travel agent does not take away this responsibility.
Interestingly enough the Minister would have made the same argument if ‘the
applicant’ would have provided the identity documents with which he travelled. Since these
documents were ‘false’ the Minister would then have raised objections against the his-tory of
‘the applicant’ on the base of Article 31 section 2, under d or e Vw 2000. In other words, we
demand from ‘the applicant’ that he provides us not only with documents to establish his
‘identity’ and ‘nationality’, but with ‘verifiable’ or ‘official’ documents to establish this. We
do not accept false documents nor do we accept the lack of such paperwork. ‘The applicant’s’
statement that it is ‘in fact’ impossible to get hold of the documents we demand from him,
does not alter the opinion of the Minister (or is not even taken into account).
Furthermore, as a more abstract point, one could argue that it is a bit odd to demand
from someone, who alleges that he cannot receive the protection of the country of his origin,
but on the contrary might even be persecuted by the government in this country of origin63,
that he proves his identity with documents which are being issued by this same government.
From this perspective it could even be argued that the lack of documents makes the story of
‘the applicant’ even more reliable. But apparently that is not the way we look at it.
Obviously this is not an argument which can be made in every case, but it raises a legitimate
question. Of course one could argue that it is still possible for ‘the applicant’ to make his
argument as long as he comes with convincing evidence. But for our endeavour it is important
to denote that we already start doubting this part of ‘the applicant’s’ his-tory as soon as he is
unable to provide us with documents we deem necessary to establish if something is reliable.
Because of the lack of the documents we deem his-tory beforehand not genuine, despite ‘the
fact’ that it could be seen as evidence for the sincerity of his-tory.64
helpen! Jij bent de enige die het kan! Ik hou het niet langer uit, zij martelen mij zo. Al het vroegere heb ik
verdragen…maar als het zo doorgaat, slaan ze mij nog dood!’ Törless vond het pijnlijk hierop te moeten
antwoorden. Ten slotte zei hij: ‘Ik kan je niet helpen. Alles wat er met je gebeurt is je eigen schuld’. The original
German title is ‘Die Verwirrungen des Zöglings Törleß’.
63
This is the case when one speaks of the state as the persecuting agent. The problem gets however slightly more
complicated if not the state agents persecute ‘the applicant’ but when either the state tolerates or condones
persecutory behaviour or when the state is unable to offer protection from persecution. See Bem 2007, p. 148153.
64
According to Boeles this is due to what he calls the ‘administrative approach’. Such an approach is not
directed at fact finding, it is meant to prevent fraudulent foreigners to provide from our public services.
‘Therefore the minister has given the burden of proof to the foreigner en described in very precise manner which
evidence can be used in which circumstances’, Boeles 2003, p. 213-214. In other words we are using our
documents to find our-facts on which we decide the case of ‘the applicant’ for our purposes.
21
As we saw in the letter of intention and the earlier interviews there is however another aspect
which we deem relevant in the determination of the credibility of the his-tory of Salah
Sheekh: his age. As we saw in the interviews there is on this point a divergence between history and our-story. Salah Sheekh believes that he is 17 years old and born on 23 February
1986, we have however ‘established’ that ‘the applicant’ is ‘at least 20 years old’. When we
discussed the letter of intention we already concluded that we not only encounter a gap
between the his-tory of Salah Sheekh and the our-story of ‘the applicant’, but that we hold
him responsible for this gap. We accuse him of deliberately saying something which is in
breach with ‘our truth’. In the decision we now even see that ‘this performance of the
applicant furthermore seriously harms the truthfulness of the applicant and his asylum
motives’65. So we not only doubt his-tory but also the credibility of the applicant as a whole
and his motives to apply for asylum. Therefore we conclude that the statements, the behaviour
and even the person of ‘the applicant’ can only be seen as incredible.
III.3.2 Should We Consider ‘the Applicant’ as a Refugee?
Whereas we have concluded that ‘the applicant’ and his-tory should be seen as incredible, we
still have to decide whether we have an obligation under the Refugee Convention to protect
this incredible creature.
First of all, we, or better our minister of foreign affairs, has made a ‘country report’, an
official document about the situation in Somalia. Drawing on our ‘country reports’ we know
that the mere fact of coming from Somalia is not enough to be recognised as a refugee. Since
we have this ‘objective’ information, the story of the applicant should be really convincing to
convince us. Unfortunately for our applicant, we already deemed his-tory incredible because
he was ignorant about his age, identity, nationality and travel route. Therefore we need him to
have a particularly good story, a story in which we find ‘personal facts’ and circumstances
which ‘justify the fear of persecution’66. Unfortunately ‘the applicant’ did not have such a
convincing story.
An important reason why the story of ‘the applicant’ cannot be seen as having personal facts
and circumstances which justify the fear of persecution, is ‘the fact’ that he never made
himself known, or at least we never knew this, as an opponent of the local rulers. Neither is
there any ‘objective’ evidence that ‘the applicant’ was a member or sympathiser of a political
party or that he has ever been detained. In general the Minister stresses that ‘the applicant has
never had any negative attention of a government or another movement or group.’67 It is
important to note that this statement is exactly opposite to the statement of ‘the applicant’ that
he had been harassed from when he was a child, by members of the Abgal clan, because he
belonged to a minority.
Besides ‘the fact’ that this is apparently not negative attention by a group of people,
the Minister hastens to add that these harassments cannot be deemed as systematic and gross
65
Minister of Alien Affairs and Integration, Decision Salah Sheekh 21 June 2003, p. 3.
Obviously the justification of fear, or the well-foundedness of fear, seems to be in itself a contradiction, since
the word fear seems to connote a personal state of mind. In the doctrine of this aspect of the refugee definition
there is however considerable debate about this point. According to Bem these discussion can be brought down
to two basic stands: ‘1)(sic) that the well-founded fear requirement has an objective and a subjective element.
The subjective element is the fear of the applicant, which is always subjective, while the objective component is
the fear’s potential well-foundedness in real life. The second theory claims that the definition does not contain
any subjective element, but is strictly objective.’, Bem 2007, p. 119. Apparently a purely ‘subjective’ fear is not
enough.
67
Minister of Alien Affairs and Integration, Decision Salah Sheekh 21 June 2003, p. 4.
66
22
discriminatory treatment which made the life ‘of the applicant’ unbearable. The alleged
incidents are regretful, but should be seen as a consequence of the overall instable situation in
Somalia, where intimidations and threats by criminal groups occur randomly. So we do
acknowledge that there is an overall instable situation in Somalia and that there have occurred
regretful incidents, but there has not been any negative attention towards ‘the applicant’ and
the regretful incidents cannot be seen as systematic and gross. Furthermore, ‘the applicants’
statement that he had to perform hard labour, and that he had several times been threatened
with death were also deemed insufficient. We cannot believe this part of his-tory to be a true,
because if it were to be true, the applicant would have fled immediately. So the fact that he
stayed in the area for a while implies that the threat can never have been serious.
III.3.3 Can We Send ‘the Applicant’ Back?
Besides obligation under the Refugee Convention to grant ‘the applicant’ a residence permit,
there are several other possibilities according to article 29 paragraph 1 Vw 2000. The Minister
discusses all these possibilities in the Decision. We will however, only focus on one other
possibility since this is of great importance in the remainder of our endeavour, i.e. Article 3 of
the Convention. According to article 29 paragraph 1 sub b Vw 2000 we can provide ‘the
applicant’ with a residence permit if he runs a real risk of beings subjected to treatment
contrary to Article 3 of the Convention in his country of origin the moment he would be
expelled. This provision is often referred to as the prohibition of refoulement. In the Decision
this possibility is however discussed in a very minimal manner. Referring to the arguments
made relating to the question whether ‘the applicant’ applied for a refugee status, the Minister
stresses that ‘the applicant’ did not make it plausible that because of personal facts and
circumstances he would run a real risk of being subjected to the said treatment. According to
the Minister ‘the applicant’ could not expect any specific attention to his person the moment
he would arrive in Somalia. Any risk he would run could rather be related to the overall
situation in Somalia. Therefore ‘the applicant’ is not eligible for a residence permit on the
base of this provision. In the next chapter we will focus more on the specific reasoning of the
Dutch authorities when we discuss ‘the applicant’s case’ before the Court. For now it is
enough to establish that ‘the applicant’ is not granted a residence permit on any of the grounds
mentioned in article 29 paragraph 1 Vw 2000. This means that he can be expelled to his
country of origin.
IV.
Conclusion: The Subject is ‘the Applicant’ and his Our-story
In this chapter we have seen two features of the way we have dealt with Salah Sheekh in our
procedure. The first is the divergence between his-tory and our-story, the second is that Salah
Sheekh bears the consequences for this deviation.
We saw that we do not believe his-tory of Salah Sheekh, since he is not providing us
documents which we deem necessary to establish whether something is true or not true. We
do not believe in the age, identity, nationality and travel route of Salah Sheekh. But that is not
the only thing we find odd about the his-tory of Salah Sheekh. How can we know for certain
that he has been harassed and more important that this treatment was directed at him
personally? Is it not possible that the treatment is just the result of the overall instability of the
country? Furthermore, we know that he could have gone to a part of Somalia which is
‘relatively safe’.
Therefore we conclude that the his-tory of Salah Sheekh is not of any use for us. We
do not believe him, he does not fit to our standards. Since we do not believe the his-tory of
Salah Sheekh in the first place, we give birth to ‘the applicant’. ‘The applicant’ has a new age
23
(from now on he is ‘at least 20’), a new identity an objectified travel route, in other words history of Salah Sheekh is being replaced by the our-story of ‘the applicant’. We base our-story
on objective information about the country where ‘the applicant’ came from, on scientific
results from age examinations and on (the lack of) objective documents. In other words we
replaced his-tory, as soon as we ‘invited’ Salah Sheekh in our-procedure, with our-story. Histruth was replaced with our-truth. His-age, with our-age, his-travel route with our-travel route,
his-identity with our-identity. We gave birth to ‘The applicant’ who is a hologram of all these
perceptions of our-story. This applicant is the product of our procedure.
This is however not the entire story. We not only substituted Abdirizaq Salah Sheekh
with ‘the applicant’, we also concluded that ‘the applicant’ cannot be deemed credible. He
does not speak our-truth about his age, identity and travel route and motives for his asylum
request. Because of the lack of documents to establish our-truth we deem him unreliable and
demand from him that, if he wants to make a convincing case, he comes with very convincing
evidence. Unfortunately for Salah Sheekh he did not make such a convincing argument.
Furthermore, he could not convince us that the circumstances in Somalia were directed at him
personally. Therefore we could not provide ‘the applicant’ a residence permit.
What have we seen here? Who is the subject of our asylum procedure? One tends to believe
that Salah Sheekh, or more accurate Abdirizaq Salah Sheekh, should be the subject of our
asylum procedure. In the foregoing we saw however that this seems not to be the case. During
our procedure his-tory is replaced by our-story, Salah Sheekh by ‘the applicant’. Salah
Sheekh is held responsible for this divergence. He is incredible because he did not speak ourtruth. Consequently this incredibility is being used to deny Salah Sheekh a residence permit.
3.
The Court’s Assessment of Our-story
I.
Introduction
After the negative decision in the domestic procedure, Salah Sheekh decided to lodge an
appeal with the European Court of Human Rights. The road to the Court was however not
entirely unproblematic. Since the initial attorney of Salah Sheekh did not see any chances of
success for ‘the case’ he did not appeal to the Council of State (Afdeling)68, which implies
that he did not ‘exhaust the domestic remedies’, a prerequisite for filing a complaint with the
Court (see Article 35, paragraph 1 of the Convention). The moment attorney Flip Schüller
took over the case, the deadline for an appeal with the Afdeling had passed. Despite the fact
that this appeal was not lodged, Schüller filed a case with the Court. The Court declared the
case admissible stating ‘that although the Administrative Jurisdiction Division may in theory
have been capable of reversing the decision of the Regional Court, in practice a further appeal
would have had virtually no prospect of success’69.
In the following paragraphs we will have a look at this case and see whether the Court
shares the perspective of the Dutch authorities.
II.
The Case of Salah Sheekh70
II.1
General Principles
The Court starts71 with reiterating its general principles on Article 3: States have the right to
control the entry, residence and expulsion of aliens, whereas the right to political asylum is
not contained in the Convention. However, in exercising the right to expel such aliens, states
must have regard to Article 3. This prohibition enshrines according to the Court one of the
most fundamental values of democratic societies and is furthermore absolute. When
substantial grounds have been shown for believing that the alien, if expelled, would face a
real risk of being subjected to treatment contrary to Article 3, this implies an obligation not to
expel this alien. (Note that when we discuss this line of argument on such a general level we
have further abstracted from the singular ‘applicant’ to ‘aliens’). In the establishment of any
responsibility for the expelling state the Court considers that, given the absolute nature of the
protection afforded by Article 3, ‘it must be satisfied that the assessment made by the
authorities of the Contracting State is adequate and sufficiently supported by domestic
materials as well as by materials originating from other reliable and objective sources’. It is
not enough if for such an assessment only the documents which are provided by the state are
being used. The ill-treatment of Article 3 must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this is relative, depending on all the
circumstances of the case.
68
He did lodge an appeal with the Distric Court of The Hague which was rejected, Rb. ‘s Gravenhage, zp
Amsterdam, 7 November 2003, AWB 03/35017 BEPTDN.
69
Salah Sheekh v The Netherlands, par. 123.
70
ECtHR 11 January 2007, Salah Sheekh v The Netherlands, no. 1948/04
71
Note that in the paragraph ‘the circumstances of the case’ we find a ‘description’ of the Dutch asylum
procedure. This in itself is a new conception of the his-tory or our-story of Salah Sheekh or ‘the applicant’.
Within the borders of this endeavour we will not analyse the relation between these three stories, we stress that at
this point we do not find striking differences between the description of the Court and the description of the
Dutch minister.
25
II.2
Application of the General Principles to ‘the Case’
Subsequently the Court applies these general principles on the specific circumstances of ‘the
case of the applicant’. First the Court observes that it is not the intention of the Dutch
authorities to expel ‘the applicant’ to an area which ‘is’, according to the country reports of its
own ministry of foreign affairs, considered ‘relatively unsafe’. Not a very shocking statement
as such we would think. Such statements are a bit redundant, it is a tautology. The
government subscribes to the absolute prohibition of refoulement, so how could not the
government stress that it will not expel ‘the applicant’ to an area which is unsafe from its own
perspective? It is far more interesting how the government came to the conclusion that some
parts of Somalia can be deemed ‘relatively safe’ and some not. Let us state here for the
moment that the Court does not question the assessment of a ‘relatively safe’ and ‘relatively
unsafe’ area as such, nor does it relate this relativeness to the absolute character of the
prohibition of Article 3. We will get back to this in the next two paragraphs. For now it is
enough to focus on the questions the Court has relating to the government’s assessment of the
circumstances in Somalia.
Whereas the Court does not question that the areas of Somaliland and Puntland are more
stable and peaceful in general than southern and central Somalia, it does question whether this
would make a difference for ‘the applicant’. Since ‘the applicant’ does not come from these
regions and does not have the possibility of clan-protection in this area, the ‘relative safeness’
will not apply to him. The Court comes to this conclusion on the base of reports of the
UNHCR who state that because of the lack of clan protection these ‘relatively safe’ areas are
‘relatively unsafe’ for, people like, ‘the applicant’. Thus the Court does not find any
guarantees that ‘the applicant’ would be able to settle in the ‘relatively safe’ areas.
Therefore, according to the Court, the question has to be addressed whether ‘the applicant’
would run a real risk of being subjected to treatment contrary to Article 3 in the ‘relatively
safe’ areas. According to the information provided by the government these areas are not
deemed unsafe because of a risk ‘the applicant’ would run there, but because of the overall
situation which is such that a return would constitute an exceptional harsh measure. The Court
stresses first of all, that the treatment to which ‘the applicant’ claimed to have been subjected,
can be classified as inhuman treatment within the meaning of Article 3, in other words it
fulfils the ‘minimum level of severity requirement’. The Court however, contrary to the view
of the Dutch government, stresses that the ‘fact’ that the risk in the ‘relatively safe’ area,
comes from the general unstable situation in which criminal gangs frequently, but arbitrarily,
intimidate and threaten people, does not remove the treatment from the scope of Article 3.
More relevant is whether ‘the applicant’ would be able to obtain protection against the violent
acts. In the case of ‘the applicant’ the Court comes to the conclusion that ‘the applicant’ could
not have sought such protection. The Court deems it sufficient that it is foreseeable that ‘the
applicant’, because he is a member of a certain minority group, would be exposed to
treatment in breach of Article 3. Therefore the Court holds that the expulsion of ‘the
applicant’ would breach the obligations The Netherlands has under Article 3.
III.
Conclusion: A Different Perspective?
What strikes us about this judgement? First of all, obviously, that the Court holds that the
intended expulsion of Salah Sheekh would be in breach with Article 3 of the Convention.
Herewith the Court demonstrates that it has a different perspective on the case, which we will
26
further analyse in chapter four. We will see at that point that the Court uses certain patterns of
justification to deal with the violation of Salah Sheekh’s otherness.
Secondly, in the former paragraphs on the domestic procedure we observed that we
transformed the his-tory of Salah Sheekh into the our-story of ‘the applicant’. In the
judgement of the Court we see however, that the Court does not take his-tory as starting point
for its procedure either. We saw that in the domestic procedure the government used its own
‘official documents’ to determine the safeness of Somalia. On the base of these self-made
country reports, it concluded that Somalia could be divided into a ‘relatively safe’ and a
‘relatively unsafe’ area. Therefore the statement of Salah Sheekh that he has been subjected to
torture, inhuman or degrading treatment, is being replaced by the information from the
official and thus objective documents about the situation in Somalia.
As we saw the Court does not dispute this substitution of the his-tory of Salah Sheekh
with these documents as such. What it however does dispute is the information provided by
these objective documents. Referring extensively to documents from the United Nations High
Commissioner for Refugees (UNHCR)72, an organisation mandated to lead and co-ordinate
international action to protect refugees and resolve refugee problems worldwide73, it stresses
that the areas which are safe from the perspective of the government are unsafe for ‘the
applicant’ (from the perspective of UNHCR and the Court). So the general safeness of these
areas is unsafe for this specific ‘applicant’. It is as if the Court by using its own language (not
being the language of the other nor of the government) wants to take position in-between
Salah Sheekh and the Dutch government.
72
Salah Sheekh v The Netherlands, par. 100-102. The Court has furthermore consulted reports from professor K.
Menkhaus professor of political sciences at Davidson College, USA; Amnesty International; Asylum and
Appeals Policy Directorate of the Immigration and Nationality Directorate of the United Kingdom Home Office;
International Crisis Group and BBC.
73
http://www.unhcr.org/basics.html (visited 18 February 18, 2009).
4.
Hospitality
“‘Die Geschichte enthält über den Einlaß ins Gesetz zwei wichtige Erklärungen des Türhüters, eine am Anfang,
eine am Ende. Die eine Stelle lautet: daß er ihm jetzt den Eintritt nicht gewähren könne, und die andere: dieser
Eingang war nur für dich bestimmt. Bestände zwischen diesen beiden Erklärungen ein Widerspruch, dann hättest
du recht, und der Türhüter hätte den Mann getäuscht. Nun besteht aber kein Widerspruch.’”
Franz Kafka, Der prozess, p. 184.
I.
Introduction
In chapter two we have seen that in our asylum procedure our-story of ‘the applicant’ is the
subject, rather than his-tory of Abdirizaq Salah Sheekh. In this chapter I will discuss work of
the French philosopher Jacques Derrida who has written several texts in which he touches
upon questions of hospitality, a subject which seems to be closely related to the questions
which we have dealt with in our endeavour.74 We have focussed so far on Salah Sheekh’s
request for asylum, our subsequent asylum procedure and the assessment of ‘the case of Salah
Sheekh’ before the Court. These were all issues of migration law. In the following I will
discuss the ‘notion’ of hospitality as discussed by Derrida and I will show that this is related
to the issue of migration law. Derrida’s perspective can actually illuminate the way we have
dealt with Salah Sheekh as well as the Court reasoning relating to the prohibition of
refoulement.
II.
De l’hospitalité
II.1
Question d’étranger: venue de l’étranger
In his lectures at the École Pratiques des Hautes Études which Derrida held from December
1995 until March 1996, Derrida deals with the question of hospitality. Two of his lectures
have been published by one of his students Anne Dufourmantelle, who complemented it with
an epilogue.75 In the first of these two lectures Derrida starts with a question: ‘Isn’t the
question of the alien an alien question?76 Coming from the alien, from abroad [l’étranger]?’77
Before I address this question of the alien however, this question of the alien is a question of
the alien, a question coming from abroad, and a question addressed to the alien.
‘As though the alien were first of all the one who puts the first question or the one to whom you
address the first question. As though the alien were being-in-question, the very question of
being-in-question, the question-being or being-in-question of the question. But also the one who,
putting the first question, puts me in question. One thinks of the situation of the third person and
of justice, which Levinas analyzes as “the birth of the question”.’78
It is important to signal that Derrida addresses the question of the alien in his book Adieu à
Levinas as well, which I will discuss in greater extent in paragraph IV. In addressing these
questions within his ‘Question d’étranger: venue d’étranger’, Derrida makes use of texts
74
See e.g. Derrida 1997, Derrida 1997a, Derrida 1999. See for illuminating introductions into work of Derrida:
Smith 2005, Schutter 2005, Groot 2003, for a more complex and less helpful reading see Stocker 2006. For a
concise and instructive discussion of Derrida’s thinking in ‘differances’ see Schinkel 2007, p. 190-195.
75
Derrida 1998, p. 7.
76
In English ‘l’étranger’ has been translated as ‘foreigner’, in Dutch as ‘vreemdeling’, which denotes ‘alien’ in
English (this is probably more related to the French ‘inconnu’). I will however use the word ‘alien’ in this
endeavour since it is a common word in our migration law (in the Netherlands) and it connotes a certain
otherness which I believe is related to these texts of Derrida.
77
Derrida 1997b, p. 33..
78
Ibid.
28
from Plato such as the Apology of Socrates. Socrates addresses his fellow citizens and the
Athenian judges. Socrates declares that he is ‘alien’ to the language of the courts, he does not
know the rules of the courtroom language; in other words, he is like an alien. Then Derrida
stresses that this problem of language is critical for the question of hospitality:
‘Among the serious problems we are dealing with here is that of the alien who, inept at speaking
the language, always risks being without defence before the law of the country that welcomes or
expels him; the alien is first of all foreign to the legal language in which the duty of hospitality is
formulated, the right to asylum, its limits, norms, policing, etc. He has to ask for hospitality in a
language which by definition is not his own, the one imposed on him by the master of the house,
the host, the king, the lord, the authorities, the nation, the State, the father, etc. This personage
imposes on him a translation from their own language, and that’s the first act of violence. That is
where the question of hospitality begins: must we ask the alien to understand us, to speak our
language, in all the senses of this term, in all its possible extensions, before being able and so as
to be able to welcome him into our country? If he was already speaking our language, with all
that that implies, if we already shared everything that is shared with a language, would the alien
still be an alien and could we speak of asylum or hospitality in regard to him?’79
The question of hospitality begins thus, according to Derrida, with our language. If the alien is
capable of communicating in our language and if he already shares everything that is shared
with a language, then one could ask how alien this figure is. So if I am not capable of
communicating with the other, he remains absolutely other to me, I am unable to grasp this
otherness. We see that already in language the question of hospitality comes to the fore.
There is another interesting aspect Derrida addresses in this lecture. Derrida relates the
question of hospitality to the family name. He poses that one cannot think of a right of
hospitality without a home, a line of descent, a family, a familial or ethnic group who receive
another familial or ethnic group. Since this is inscribed in a right, a custom or a law which has
effect in this group, it is possible for them to be called by a name, in other words, to be
subjects in law, ‘to be questioned and liable, to have crimes imputed to them, to be held
responsible, to be equipped with nameable identities, and proper names.’80
In this significance of the name Derrida finds another contradiction which I will not
discuss before I make a step forward to his second lecture, ‘Pas d’hospitalité’, which is crucial
in the context of my analysis. In this text Derrida introduces two related notions: the Law of
Hospitality and the laws of hospitality:
‘The antinomy of hospitality irreconcilably opposes The law, in its universal singularity, to a
plurality that is not only a dispersal (laws in the plural), but a structured multiplicity, determined
by a process of division and differentiation: by a number of laws that distribute their history and
81
their anthropological geography differently.’
The laws, in the plural, of hospitality, are the conditional rights and duties as laid down in
treaties and domestic laws.82 Examples in the Netherlands are the Alien Act 2000, Alien
Decree 2000 and the Alien Circular 2000. These laws are explicit and regulate the entrance of
‘aliens’ to the territory. Since they regulate the entrance they are in itself conditional and
restrictive. If they would not limit the amount of ‘aliens’ who receive a legal right to enter the
territory, it would be pointless to have these laws and borders in the first place. The Law of
hospitality however, enshrines an unlimited, unconditioned form of hospitality.
79
Idem, p. 39-40.
Idem, p. 43.
81
Idem, p. 79. There are some interesting ‘differences’ between the Dutch and English translations which I will
not discuss in this context.
82
Derrida & Dufourmantelle 2000, p. 77.
80
29
These two forms of hospitality are however intrinsically interrelated. Whereas The Law
is above the laws, at the same time it annexes the laws in order to become effective, concrete
and determinable. It thus needs the laws to avoid the danger of becoming too abstract, utopian
or dim (I will elaborate more on this theme in paragraph IV.2 when I discuss the relation
between finity and the infinite). The laws are however always in contradiction with The law,
they threaten, undermine and deprave it. ‘For this pervertibility is essential, irreducible,
necessary too. The perfectibility of laws is at this cost.’83 At the same time, the conditional
laws would not longer be laws of hospitality if they were not guided, inspired and annexed by
the law of unconditioned hospitality. These two schemes are therefore antinomic and
inseparable at the same time. They both imply as well as exclude each other: ‘They
incorporate one another at the moment of excluding one another, they are dissociated at the
moment of enveloping one another.’84
With these two notions we can understand better Derrida’s remark relating to the question of
the family name:
‘this right to hospitality offered to an alien ‘as a family’, represented and protected by his or her
family name, is at once what makes hospitality possible, or the hospitable relationship to the
alien possible, but by the same token what limits and prohibits it. Because hospitality, in this
situation, is not offered to an anonymous new arrival and someone who has neither name, nor
patronym, nor family, nor social status, and who is therefore treated not as an alien but as
85
another barbarian.’
Derrida seems to underline here that the laws of hospitality, the conditioned form of
hospitality, makes the relation with the alien both possible as well as impossible. This form of
hospitality requests from the alien that he makes himself known, that he becomes subject of
our laws, or in other words, we demand his name. This brings Derrida to introduce the figure
of the absolute other to us, which we will further discuss in paragraph IV.2:
‘the difference, one of the subtle and sometimes ungraspable differences between the alien and
the absolute other is that the latter cannot have a name or family name; the absolute or
unconditional hospitality I would like to offer him or her presupposes a break with hospitality in
the ordinary sense, with conditional hospitality, with the right to or pact of hospitality’86
This creates a gap between the Law of Hospitality, which would also be hospitable to the
absolute other, and laws of hospitality, which require a name. The Law of Hospitality requires
that I will open my house, without asking any questions, for both the alien as well as the
absolute, unknown and anonym other. This is what Derrida dubs the question of the alien, or
the being-in-question of the question: does hospitality starts with a welcoming without
questions? Or does hospitality imply that the alien should be interrogated? Is it been given to
an other before he identifies himself or even before it is been established that he is a subject,
or a subject of law?87
After discussing texts of Plato and Sophocles, Derrida discusses the word ‘alien’ [étranger].
He stresses that the alien can be understood both as referring to a guest as well as an enemy.
The Latin word Hostis, from which hôte stems, denotes both ‘alien’ and ‘enemy’ and
83
Idem, p. 79.
Idem, p. 81. ‘Because exclusion and inclusion are inseparable in the same moment, whenever you would like
to say “at this very moment,” there is antinomy’.
85
Idem, p. 43-44.
86
Idem, p. 44.
87
Idem, p. 45-46.
84
30
furthermore refers to their mutual connection.88 Derrida goes on to link this word to the Greek
words xenos and xenoi and tries to illuminate this by discussing contemporary problems of
privacy with regard to e-mail and internet traffic. He stresses that the private domain, or my
‘home’, is more and more extended or formed by telephone, email and internet traffic. If we
are encountered with a violation of our privacy when we make use of these forms of
communication, e.g our telephone line is tapped or our emails are being read by others, we
can feel highly threatened within our own territory.89 If such a breach occurs, we often see a
reaction to protect the particular, the family and the home. This often involves what Derrida
dubs ‘a virtual xenophobia’, it is not directed at the singular alien who breaches the private
sphere, but rather against an anonymous technical power.
According to Derrida this pattern is paradigmatic for hospitality. In our home we want
to be master (and we need to be master to be able to call it our home) and want to welcome
everyone we want. ‘Anyone who encroaches on my ‘at home’, on my ipseity, on my power of
hospitality, on my sovereignty as host, I regard as an undesirable alien, and as a virtual
enemy. The other becomes a hostile subject, and I risk becoming his hostage.’90 So we do not
direct our anger to the singular alien who breaches the private sphere, we rather direct it
towards the general category of aliens. Here we signify the double meaning of the word
hostis.
This xenophobia relates to the collusion of power and hospitality. Such a collusion is bound
by its finitude. The host is encountered with this finitude the moment he invites or welcomes
his guests. His power over his home implies that he will select and filter the visitors and
guests. If he would not do this he would loose the power of his home (e.g because too many
people enter or someone takes over his power). This power implies a certain inclusionary and
exclusionary force from the very threshold of the right of hospitality.91 Therefore the alien has
to comply to our laws of hospitality. If a new arrival meets the terms of these laws, he will be
seen as a guest of the host. If however, this new arrival does not meet the criteria, he can only
force his way into the house of the host as a parasite, a guest who is unlawful, illegitimate,
clandestine and liable to expulsion or arrest.
The problem is, and here Derrida moves back to the problem of the new extended house
by the telephone and computer, that the home is per definition accessible for intrusion from
outside. This leads with the contemporary technical developments to problems of intrusion,
which are, as such, not absolutely new:
‘every space which is constituted as a habitable house and a home, needs an opening, a door and
windows, it needs to give a passage to the alien [l’étranger]. There is no house or interior without
a door or windows. The monad of home has to be hospitable in order to be ipse, itself at home,
habitable at-home in the relation of the self to itself. But what has always been structured like
this is nowadays multiplying both the home and the accessibility of home in proportions and
modalities that are absolutely unprecedented.’92
So since we have houses and territories with doors and windows, it is inevitable that people
will come to our home, whether we want this or not, or in other words: whether we see them
as absolute other, guest or parasite. This is a feature which seems to be in accordance with our
migration practice. The fact that we have a country with borders makes it inevitable that
88
Idem, p. 34, footnote 2.
Derrida provides several examples of these problems which I will however not discuss in this endeavour, since
I do not find the link with these new technologies very illuminating.
90
Derrida 1997b, p. 58.
91
Idem, p. 58-59.
92
Idem, p. 61-62. The English translation translates l’étranger here as the outside world.
89
31
aliens will come to our country (and leave it). According to Derrida this inevitability implies
thus that if an alien enters our home country contrary to our laws of hospitality, thus as
parasite, that this will lead to a certain xenophobia towards the whole category of aliens. It is
unclear for me on which ground Derrida stresses that the ‘fact’ that people come to our
borders, necessarily leads to xenophobia.
II.2
Pas d’hospitalité
In the second lecture with the title Pas d’hospitalité, in English translated as Step of
hospitality / No hospitality93, Derrida stresses that the question of hospitality beholds an
unsolvable antinomy. As mentioned in the former paragraph he distinguishes the Law of
Hospitality from the laws of hospitality, the former being an unlimited, unconditioned form of
hospitality, the latter enshrining the conditioned laws of hospitality. In this lecture Derrida
tries to approach this antinomy, by referring to Robert ce soir from Klossowski and Oedipus
at Colonne from Sophocles. Such evocative use of other texts is paradigmatic for Derrida’s
writing. He often illuminates or illustrates his perspective by referring, quoting and
paraphrasing from other texts.
In Robert ce soir the uncle of the narrator had put certain handwritten pages under
glass above the bed in the spare room. ‘These “handwritten pages” are placed above the bed,
inevitable and inaccessible, like the law (…) Above their heads, whether the visitors are
sleeping, dreaming, or making love, the laws keep watch.94 These handwritten laws of
hospitality find themselves behind glass, unchangeable but visible and readable.
They remind us of the ones Antigone has to transgress in Oedipus at Colonne in order
to offer her brothers the hospitality of the land and of burial.95 Derrida uses this image to
illustrate what a strange experience it is for Antigone’s father, to die abroad in an unfamiliar
country because of a breached law of hospitality. A tremendous tragic, since, according to
Derrida, ‘displaced persons’ have in common a certain longing for two things: their deaths
and their language. On the one hand they want to return to the place of their buried beloved
ones. A visible tomb would have been able to reappropriate the alien, it could have been a sort
of repatriation. But if the alien, as in the case of Oedipus and Antigone, has no manifest
grave, no visible tomb, there is no place to direct the mourning to.96 On the other hand,
language, their mother tongue, is for the expropriated, the deported, the extradited, their
ultimate homeland.97 This language is however, at the same time something which
continuously abandons you.
Oedipus promises to his accomplice Theseus that if the location of his grave remains secret,
their city will be prosperous:
‘It is as if (…) the stranger could save the master and liberate the power of his host; in this he
looks like Oedipus, (…) promises the city salvation and prosperity; it is as if the master, qua
93
Derrida & Dufourmantelle 2000, p. 75. The original French title is Pas d’hospitalité, the French ‘pas’ means
both ‘step’ as well as ‘no’, this is why the English translation has two titles. Derrida clearly used this equivocal
character of the word. In the Dutch translation they chose to stress the meaning of ‘step’ in the title and added
the word ‘doorstep’ because of its centrality in the two seminars: ‘Stappen over de drempel van gastvrijheid’
(Stepping over the doorstep of hospitality), Derrida 1998, p. 68.
94
Derrida & Dufourmantelle 2000, p. 85.
95
Ibid.
96
Idem, p. 113.
97
Idem, p. 88-89.
32
master, were prisoner of his place and his power, of his ipseity, of his subjectivity (his
98
subjectivity is hostage).’
This brings Derrida back to Klossowski’s story of the master of the house who desperately
waits at the doorstep of his home for the stranger, who appears at the horizon as a saver.
‘It is as if the stranger or alien held the keys. This is always the situation of the alien, in politics
too, that of coming as a legislator to lay down the law and liberate the people or the nation by
coming from the outside, by entering into the nation or the house, into the home that lets him
99
enter after having appealed to him.’
Here we see again that the master and the alien switch positions, the inviting host, becomes
the hostage of the guest and thus the guest, the invited hostage, becomes the master of the
host, he becomes the one who invites the one who invites. Because of these substitutions
everyone becomes everyone else’ hostage. ‘Such are the laws of hospitality.’100
According to Derrida the difference between the unconditional hospitality and the rights and
duties as condition for hospitality does not necessary lead to a paralysed desire for hospitality
or an abolishment of the demand for hospitality. Both forms of hospitality are, as we
encountered earlier, indissociable. ‘One calls forth, involves, or prescribes the other.’101 The
Law of hospitality requires unconditional welcome and orders that the borders be open to
each and everyone. But to invite someone to your home presupposes a certain kind of
sovereignty over this home, to be a host is precisely to maintain some mastery over your
place, which obviously contradicts to the unconditioned welcome of The law.
In this uncertain and undetermined terrain, host and guest meet, negotiating the
reciprocal identities that shape hospitable encounters.102 This implies that the experience of
hospitality is structurally impossible, but it is this very impossibility which enables certain
forms of hospitality. Hospitality is a self-contradictory concept, - to say it with the most used
and misused word in respect it to Derrida’s thinking – it ‘deconstructs’ itself precisely in
being put into practice.103 It never exists as such, it is always to come.104
This opposition between the unconditioned ideal and the conditioned reality poses an
important question of trying to transform and improve the laws.105 It stands at the threshold of
what is, while encountering what is to come, it maintains some elements, while deliberately
leaving other elements aside.106 Or in the words of Derrida’s student Anne Dufourmantelle:
‘Yet this Law of hospitality must continue to be thought, as a magnetization which “puts to
the question” the composure of the laws of hospitality’107.
98
Idem, p. 123.
Ibid.
100
Idem, p. 123-125.
101
Idem, p. 147.
102
Pavlich 2005, p. 104. Pavlich uses the question of hospitality as an allegory for understanding critique:
‘critique might be described as a contextually situated encounter with what is other, a gesture towards promised
possibilities from within the permeable limits of given ways of being. More specifically, it is an encounter where
critics confront the limits of an ordinary, familiar way of being and stand at a threshold to welcome the arrival of
other possible forms of life.’
103
Derrida as cited in Pavlich 2005, p. 106.
104
Pavlich 2005, p. 106.
105
Smith 2005, p. 70.
106
Pavlich 2005, p. 104.
107
Derrida & Dufourmantelle 2000, p. 66.
99
33
To get a better understanding of this aspect of Derrida’s texts let us have a look at the notion
of ‘différance’ in the work of Derrida. This for Derrida central concept could help us to
illuminate the way Derrida distinguishes between the irreconcilable Law of Hospitality and
laws of hospitality.
III.
Différance
In his ‘Différance’, a speech which he held in 1968 and which was consequently published as
a text,108 Derrida deals with the word différer, or more specific with a letter, the ‘a’. The word
différer has, according to Derrida, two meanings which seem quite distinct.109 It can be used
in the sense of temporising, ‘to take recourse, consciously or unconsciously, in the temporal
and temporising mediation of a detour that suspends the accomplishment or fulfilment of
‘desire’ or ‘will’.110 The other sense of différer is more common: to be not identical, to be
other. Since différence cannot, according to Derrida, refer to différer as per the first meaning,
he introduces a new word: différance. This latter word is introduced to compensate the lack of
meaning of the former, since it can refer simultaneously to the entire configuration of its
meanings.111
This neologism also serves to illuminate Derrida’s idea of language. Every concept in
language is inscribed in a system within which it refers to other concepts by means of a
systematic play of differences. A concept has meaning because of its reference to other
concepts, or more radical: a concept is a concept because it is not another concept.112 This
implies that Derrida abolishes the essential difference between the signifier and the signified.
Everything that is signified by a signifier, functions itself as a signifier.113 At the same time
they ‘play’ and are ‘effects’.
Therefore according to Derrida, concepts do not fall from the sky or are not just given
by nature. They have been produced, are produced effects, but they are effects which do not
find their cause in a subject or a substance, in a thing in general. What is written (since it
cannot be said), as différance, ‘will be the playing movement that ‘produces’ – by means of
something that is not simply an activity – these differences, these effects of difference.’114
This relation of signifying reference is endless, there is thus no essence to concepts.115 There
is in the signification of a sign always an elsewhere, which is never reducible to a fulfilled and
exhausting presence. This is more common denotation of différance, this thinking postpones
the full presence of signification, it has to accept the absence of the things.116
The implication of this is that Derrida disconnects the truth of our words from the
intention which produces it and stresses that this truth is infinitely postponed. It never gets a
definite meaning, since the context in which truth appears is endless and inexhaustible.
Therefore ‘the’ truth of our words does not exist. Every word, every expression can be
retaken, repeated or taken to a new signification. This however does not lead to a conclusion
that every word can mean everything and that every interpretation of a text is possible. The
context has a double function for Derrida. The context is on the one hand fluent and variable,
108
Derrida 1982.
In English those meanings have become two separate words: to defer and to differ.
110
Derrida 1982, p. 8.
111
The distinction between ‘différence’ and ‘différance’ is merely graphic, one cannot hear the difference.
Derrida plays with this problem and suggests that it cannot become part of our consciousness, Derrida 1982, p.
3-4.
112
Schinkel 2007, p. 192.
113
Groot 2003, p. 385.
114
Derrida 1982, p. 10-11.
115
Groot 2003, p. 385.
116
Idem, p. 387-388.
109
34
leaving open the possibility of new signification between signs and texts. However, on the
other hand, on each singular, particular moment only one signifying field is presumed. Only
on this moment signification is possible, but without an absolute claim to truth.117
This is a constant process or movement between the infinite context of signification
and the present context. It is a movement in which the ‘present’ element signifies something
different, or something other, than itself. This movement produces différances. Such a
différance ‘is’ however not something, it rather signifies a dissimilarity. Or to put it in a more
puzzling way: its ‘essence’ is difference, because every presence bears the ‘trace’ of an
absence. Here we see how problematic it is to discuss this aspect of Derrida’s thinking in
straight forward or ‘present’ words. According to Derrida every presence bears the trace of
the difference, but also the trace of the erasure of the trace.118 The trace is not presence, it is
rather the simulacrum, the imitation, of a presence that dislocates itself, it properly has not
site, erasure therefore belongs to its structure.
‘And not only the erasure which must always be able to overtake it (without which it would not
be a trace but an indestructible and monumental substance), but also the erasure which
constitutes it from the outset as a trace, which situates it as the change of site, and makes it
disappear in its appearance, makes it emerge from itself in its production’119
Thus every presence bears the trace of an absence, but also this trace ‘itself’ is not present and
can erase itself. From the outside a trace can be identified because of its erasure of the
present, its trace of absence, but this trace has no presence itself so cannot be identified as
such (it can be erased itself). It becomes apparent here that this thinking in différance, rather
than identity and essence, is problematic as it comes to communication. If I want to explain
what something, such as trace or différance, ‘is’, I feel forced to give it an identity or essence,
which is exactly what these concepts seem to oppose120.
It might be because of this characteristic that Derrida’s texts do not lend themselves
for clear and unambiguous interpretations. His writing is, ‘as such’, a differing movement in
which he makes use of the present discourse and the current words, while at the same time
trying to break this present signification open, towards new meaning, new denotation. Bearing
this movement in mind helps to understand the texts of Derrida.
In the foregoing description of the Law and the laws of hospitality we were faced with the
notion of the other (and the face). To get a better grasp of this notion, we will pause at the ‘the
other’ as this can be found in work of Emmanuel Levinas. Especially where it comes to ‘the
other’, Derrida is influenced by this Lithuanian-French philosopher.
117
Idem, 396 – 420.
Schinkel 2007, p. 195-196. Trace or spur is in French ‘trace’, which is the opposite of ‘écart’ which denotes
difference.
119
Derrida 1982, p. 24.
120
This is also not unambiguous in the texts of Derrida since one of his objectives seems to be to overcome a
certain field of bipolarities not by simply replacing it with a mirror image system of oppositions, Groot 2005, p.
7-10.
118
35
IV.
The other
IV.1
The face of the other
An important notion in the work of Emmanuel Levinas is otherness.121 This otherness is not
limited to the fact that the other, who has a certain resemblance to me, has other defining
characteristics. For this otherness one is not indifferent, it is precisely this alterity or
differentness, which bind you ethically to him. The relation I have with the other is thus from
the start an ethical one122. In this relation the unique face is what signifies the other: the other
is his face.123 Levinas stresses that one should not understand seeing the face in the way a
photographer sees his objects. Rather one meets the face, and in this encounter it offers itself
to your compassion and responsibility. One can also stare at the face as it were a random
object, however if one really sees it, one becomes responsible for the other.124 Or to put it
differently, if one observes the colour of the other’s eyes, one is not engaging in a social
relationship with the other. Whereas the relationship with the face can be controlled by
observation, the face ‘as such’ cannot be so reduced. The face is meaning, and is not
contextually bound. It does not relate its meaning to the context in which it appears.125
‘the meaning of something exists in its relation to something else. Here however, it is the
face merely for itself. You are you. In this connotation one can say that the face cannot ‘be
seen’. It can never be something substantial which your thinking could encompass; it is the
incomprehensible; you surpass it.’126
If one approaches the face in such a manner, the first word of the face is ‘thou shalt not kill’.
This is a command, but the face at the same time demands me as a master, but is also bare and
vulnerable.127 The meeting of another in the face implies therefore a responsibility for the
other. As soon as the other looks at me, I become responsible. For Levinas this responsibility
is almost a pleonasm, since responsibility is in its origin being for the Other. The inter-human
relation is only possible as responsibility, a responsibility which is not subject to acceptance
or decline, it is a meaningful order.
For Levinas this responsibility goes that far that it is a-symmetric: one is responsible
for the Other without expecting reciprocity, even if this would endanger my life. I am
therefore subjected to the Other, or better subject to the Other. The reciprocity is his part of
the deal. Levinas has frequently cited a famous line of Dostoyevsky’s ‘The Brothers
Karamazov’ in this regard, ‘We are all guilty to everything and everyone above everyone, and
I even more than others.’128 It is not about a factual guilt because of mistakes I made, it is
rather a responsibility for everyone else and everything with the Others, even their
responsibility. Dostoyevsky’s statement is illustrative as it comes to stress how responsible I
am for the other. My responsibility goes beyond my factual influence or guilt, as soon as the
other looks at me I am responsible.
121
See for a useful introductions to the work of Levinas: De Boer 1988, Duyndam & Poorthuis 2005, Van
Riessen 2005, Levinas 2006 and Levinas 2006a.
122
Levinas 2006, p. 62-63.
123
Idem, p. 59-60. See also Douzinas &Warrington 1991, p. 119.
124
Levinas 2006, p. 60-62.
125
Levinas 2006a, p. 177-179.
126
Idem, p. 178. Dutch version states: ‘de zin van iets bestaat in zijn relatie tot iets anders. Hier is daarentegen het
gelaat enkel zin voor zich. U ben u. In deze zin kan men zeggen dat het gelaat niet ‘gezien’ wordt. Het kan niet
een inhoudelijk iets worden dat uw denken zou kunnen omvatten; het is het onbevattelijke, het voert u daaraan
voorbij.’
127
Idem, p. 180.
128
Dostojevski 2001.
36
According to Derrida the face in the work of Levinas can be related to hospitality. The face
always lends itself to a welcome, hospitality is that what opens itself to the face, what
welcomes the face. As we have seen the face has a certain resemblance to hospitality in that it
is an experience of the impossible. It exceeds all ‘thematising formalisation or description’.129
In his A Word of Welcome, a contribution to a colloquium organised to mark the first
anniversary of Levinas death, Derrida even goes further and states:
‘Intentionality, attention to speech, welcome of the face, hospitality – all these are the same,
but the same as the welcoming of the other, there where the other withdraws from the theme.
This movement without movement effaces itself in the welcoming of the other, and since it
opens itself to the infinity of the other, an infinity that, as other, in some sense precedes it, the
welcoming of the other (objective genitive) will already be a response: the yes to the other
will already be responding to the welcoming of the other (subjective genitive), to the yes of
the other. This response is called for as soon as the infinite – always of the other – is
welcomed.’130
Welcome of the face and hospitality are thus the same as the welcoming of the other, but not
in an essentialistic manner. It can be illuminating to think of the différances we saw in the
foregoing paragraph. Hospitality is the same as welcoming of the other, whereas this
welcoming has no presence since the other withdraws from the theme. The singular other is
erased in this welcome, so that it opens itself to the infinity of the other.
These notions of the ‘other’ and ‘infinity’ have traces of certain aspects of the thinking
of Levinas, which we will see in a moment. For now it is important to denote that our
welcoming of the other in the objective genitive, where the other is thus the object of our
welcoming, is already a response to the welcoming of the other, were the other is the subject
(subjective genitive). The moment we welcome the infinity of the other, I am already
welcomed by the other. This means that there is no first yes, the yes is already a response, a
response which begins. This is what Derrida dubs the question of the alien. Derrida however
acknowledges that everything begins with a first yes, but stresses that this is the aporia of
welcoming. Therefore he underscores that it is necessary to begin by responding, which
means that there is in the beginning no first word. Derrida underlines, while quoting Levinas,
that the welcome determines the receiving: ‘To approach the Other in discourse is to welcome
his expression, in which at each instant he overflows the idea a thought would carry away
from it. It is therefore to receive from the Other beyond the capacity of the I, which means
exactly: to have the idea of infinity’131
IV.2
Infinity and the third
This infinity which is revealed in the relation with the other, can also be traced in the work of
Levinas. In the texts of Levinas the notion of infinity plays an important role in his criticism
of dogmatic conceptions of truth.132 These philosophies are structured around absolute notions
of truth, what Levinas dubs the thinking of the Identical133. Even if truth is not to be seen as
definite, there is in such thought always the pretention of this more just and complete truth.
Maybe not in this evanescent life, but eventually there is an ultimate truth. At this final border
129
Derrida 1999, p. 22.
Idem, p. 23.
131
Idem, p. 23-27.
132
Compare Derrida 2005, in this lecture Derrida discusses conceptions of truth in relation to the work of
Nietzsche and interpretations thereof. To do this he uses three lines of analysis: the woman, truth and castration.
See also Groot 2005a.
133
In Dutch ‘het Eendere’, Levinas 2006a, p. 182.
130
37
of fulfilment, at this moment of eventual truth, the other becomes identical and that is what
bothers Levinas.
He opposes this idea of a definite, limited conception of truth with an idea of
endlessness, the thinking of the non-Identical.134 The ideatum, the reality which is being
thought into the idea (the object), to which it is directed is infinitely larger than the act of
thinking this idea. The distance between the mental act and the object, between the idea and
the ideatum, is with the idea of the infinite longer than in any other situation. It strives for
something it cannot encompass. By thinking in the infinite it thinks from the beginning more
than it thinks. The infinite does not dissolve in the idea of the infinite. It is not so
apprehended. This infinite is thus, according to Levinas, the radical and absolute other. In fact
one could even say that the infinite teaches what one does not know, it is inserted in us. This
is experience in the only radical meaning of the word: ‘a relation with the exterior, towards
the other, without integrating this exteriority into the Self.’135 This infinity, this unthinkable,
this radical other is thus revealed in the relation with the other, according to Derrida. It
however, reveals an abyss in which there is no first welcoming, no first yes. The moment I
welcome the infinity of the other, I am being welcomed by the other. This is the aporia or
abyss of welcoming according to Derrida.
This infinite other determinable properties or empirical visibility, gives to the face of
the other a spectral aura. It represents the welcoming of the other in an immediate, urgent
way, without waiting, as if ‘real’ qualities, attributes, or properties slowed down or
compromised the purity of this welcome. ‘It is necessary to welcome the other in his alterity,
without waiting, and thus not to pause to recognize his real predicates’.136 This implies that
one always runs a risk to offer hospitality to the guest as ghost.137
But this tension between the hospitality towards the guest with ‘real predicates’ and the
ghost is necessary; it must exist. It is the relation between ethics and politics, the face and
hospitality and holy hospitality and political peace. It is in other words the relation between
the infinity and the finite. It is necessary to deduce a politics, a law from ethics, something
finite from something infinite. In other words we need to deduce laws of hospitality from The
Law of Hospitality. Such a deduction is inevitable in order to determine the ‘better’ or the
‘less bad’ laws.138 The political and juridical content, the laws of hospitality, remain however
to be determined beyond knowledge, in a singular way,
‘in the speech and the responsibility taken by each person, in each situation, and on the basis
of an analysis that is each time unique – unique and infinite, unique but a priori exposed to
substitution, unique and yet general, interminable in spite of the urgency of the decision.’139
It is the generality which exposes itself in singularity. The actual political or legal decision
remains heterogeneous; they remain independent, to the calculations, knowledge and
consciousness that nonetheless condition it. The Law exposes itself in the non-Law, by
becoming at once host and hostage, the host and hostage of the other: the law of the unique, or
The Law must give itself over to substitution and to the law of generality, the laws.
134
Levinas 2006a, p. 182-183.
Levinas 1987, p. 144. Here Levinas capitalises the Other, something he does not consequently do throughout
his work. I have chosen not to capitalise this word, besides in the actual quotations.
136
Derrida 1999, p. 111.
137
One might call this the ‘phantomatic character’ of the philosophy of Levinas, since one welcomes the other
irrespectively of his qualities, the other is in some respect a spirit or phantom, Derrida 1999, p. 111-112.
138
It is important to note that Derrida is not referring to some kind of essentialistic or natural form of ethics
which is good and which can be used to distinguish the worse laws form the good ones. He uses quotations
marks to stress that it is a relative distinguishing. ‘It is not good, it is only a stopgap, but one that it is necessary
to seek, that it is necessary to stop seeking’, Derrida 1999, p. 112. See also footnote 26.
139
Derrida 1999, p. 115-116.
135
38
To get a better understanding of this relation between generality and singularity it might be
illuminating to have a look at the notion of the third. The third is a concept which Levinas
uses to refer to society. Whereas Levinas grounds ethics in the binary situation with the face
of the other, the third necessarily comes to the premise if one thinks of living in a society.140
The multitude of human beings in a community presents the third next to the other. This
plural third necessarily obfuscates the intimate relation I have with the other. The multitude of
people, the appearance of the third next to the other, makes it necessary to draft laws and
create an adjudicator. One has to balance and compare the situation of the other with that of
the third. The inter-human relation which I have with the other, has to be tempered by that
fact that I have to interrelate with other humans. This is thus, according to Levinas, the reason
for adjudication.141 This question of the third immediately suspends the face to face of the
binary situation.142
Derrida deduces from the ineluctability of the third at once, without any mediation, the
origin of the question ‘and justice and the ‘political structure of society’. This coming to the
premise of the third is therefore for Derrida the step from ethical responsibility to juridical or
political responsibility.143 Ricœur, who also deals with this triadic construction of I, you and
the third, has put it nicely: ‘Only the relation to the third, situated in the background of the
relation to the you, gives us a basis for the institutional mediation required by the constitution
of a real subject of rights. – in other words, of a citizen’144. He thus discerns between
interpersonal forms of otherness and institutional forms of association. Since it is impossible
to limit philosophy to interpersonal forms of dialogue, one has to take into account the
relation with the third party. This third party is however not an actual individual, it is rather a
plural, a ‘they’. Rather ‘otherness’ can be divided into the other as a ‘you’ and as a ‘third
party’. 145 The latter is, to get back to Derrida, the step from ethical responsibility to juridical
responsibility.
‘But this move out of purely ethical responsibility, this interruption of ethical immediacy, is
itself immediate. The third does not wait; its illeity calls from as early as the epiphany of the face
in the face to the face. For the absence of the third would threaten with violence the purity of
ethics in the absolute immediacy of the face to face with the unique. (…) The impossibility of
discerning here between good and evil, love and hate, giving and taking, the desire to live and
the death drive, the hospitable welcome and the egoistic or narcissistic closing up within
oneself?146
The third is thus necessary to prevent the absolute and pure ethics to become violent. This
means in the first place that a relation purely with the other lacks a frame of reference to
discern between good and evil, hospitable welcome and egoistic closing up. Besides this
another risk is enclosed in my relation with the other. The ethical relation which exists
between me and the other does not take into account that I (and you) always engage in
relations with others (other than you). If the ethical relation of this ‘initial’ bipolarity would
140
Duyndam & Poorthuis 2005, p. 29.
Levinas 2006a, p. 181-182.
142
Obviously this is a thought construct, in ‘reality’ one cannot think of a binary situation with the other without
being confronted with the third. The notion of the other is however an analytical concept to stress that the
primary focal point of my ethical responsibility is toward the singular other with whom I am faced. This binary
relationship is ‘from the moment’ I engage in communitites obfuscates by the appearance of the third.
143
Derrida 1999, p. 31.
144
Ricœur 2000, p. 5.
145
Ibid.
146
Derrida 1999, p. 32.
141
39
prevail above my (and our) relation towards others, this would imply a certain violence
towards this third. The question of the third thus prevents this pure ethics to become violent.
However, this immediate mediating third violates on his turn the pure ethical relation I
have with the unique other. This is what Derrida dubs the ‘necessity of this double bind’. A
violence is needed to prevent pure ethics to become violent. This emergence of the third is,
according to Derrida, an initial perjury which denotes the breaking of an oath or obligation.147
Justice as law begins with such perjury.
In justice a similar double bind comes to the premise, justice demands both a general
law as well as an immediate relation with the other.148 This is the tension between the
uniqueness of the face of the other for which I am absolutely responsible and the appearance
of the third which demands for adjudication and general laws. They both need each other and
exclude each other. In migration law we see a similar double bind. My absolute responsibility
for the other is infinite and implies that I should welcome him beyond his characteristics
(beyond his-tory). This absolute hospitality however violates my own authority over my home
and turns me from a host to a hostage. To take away the risk of this violence, we draft finite
laws to save our authority over our home. These laws however violate my infinite hospitality
towards the (absolute) other.
Derrida interprets what is between the laws and the Law, between politics and ethics as
silence. This silence is important, it is the non-response to ethics or the non-response to
politics. It is a hiatus, which enables people to take up speech, it gives speech. Such a hiatus
reminds us of the différances described in the former paragraph, silence is a non-response, a
non-place, it has no essence, it is postponed and relates itself to the response, to the speech,
while at the same time erasing itself.149 This enables Derrida to say that silence is the gift of
speech. Without this hiatus, which should not be understood as the absence of rules but rather
as the necessity of a leap at the moment of ethical, political, or juridical decision, we would
simply unfold knowledge into a program or course of action. This is problematic since
‘nothing could make us more irresponsible, nothing could be more totalitarian’.150
147
Idem, p. 33, footnote 21 states relating to this word perjury: ‘French parjure, like English “perjury”, denotes
the deliberate or willful giving of false or misleading testimony before a court of law, but it is also often used
outside a strictly legal context and is not so closely ties as its English counterparts to the willful intent to deceive.
Parjure can thus be used to describe the breaking of just about any oath or obligation, whether intentionally or
not, and so can be applied to acts of treason, betrayal, or infidelity, to breaches of promise, faith, or trust.’
Derrida takes ample opportunity to seek the limits of the connotation of the word when describing justice: ‘it
betrays the ‘primordial word of honor’ and swears [jurer] only to perjure, to swear falsely [parjurer], swear off
[abjurer] or swear at [injurier]’, Derrida 1999, p. 34
148
One of the reasons why Derrida is so difficult to read (understand) is that he does not use concepts
consistently (probably because he does not believe in constant meaning of concepts). Whereas this is
understandable within his overall project it makes it not easier to relate different texts on hospitality and law to
each other. Without giving it a definite meaning I would like to stress that within our endeavour we see as
certain resemblance between notions as ‘Law of Hospitality’, ‘pure and immediate ethics’ and ‘ethical
responsibility’ on the one hand and ‘laws of hospitality’ and ‘law’ on the other hand.
149
Compare Derrida 1997c, in this text Derrida ‘answers’ the question whether his thinking is in fact nothing
more than a complex form of negative theology. He however does not answer this in a direct and unambiguous
way (how could he?), but by a movement of denials and mystical negations (which are a characteristic of
negative theology). One of the questions Derrida addresses is the question ‘how not to speak’, e.g. Derrida
1997c, p. 36.
150
Idem, p. 115-117.
40
V.
Conclusion
It is the equivocal character of hospitality, the tension between the unconditional welcome
and the conditional laws of hospitality, which Derrida brings to the fore. We encountered that
it is inevitable that if we have a house or habitable territory with doors and windows, people
will come to our house. We also saw that in these situations where we want to control the
entry of our home, which is necessary to call it our home, certain inclusionary and
exclusionary patterns occur. If new arrivals meet the criteria of our law of hospitality, they are
welcomed as guests. But if the new arrival does not meet the criteria he can only force his
way into the house as a parasite. Before we can even judge whether the new arrival complies
to our laws, he has to use our language and make himself known, reveal his identity. In other
words, the absolute other, this radical otherness which is infinite and larger than I can
encompass, has to ‘become’ an identifiable other, someone with a name and identity, he has
to become ‘subject’ to our laws.
We thus need to deduce from the infinite Law of Hospitality, in which I welcome the
absolute other as ghost without asking him for his identity, finite laws of hospitality which
demand from the other to reveal himself and to speak our language. Such finite laws which
define who can enter the country are necessarily exclusionary and with force. If one does not
comply to these laws and thus has not the right to enter, the possibility remains that he will
force his way into our home as a parasite. This will lead to a protection of our home and a
xenophobic reaction in which the whole category of aliens is seen as an enemy. This however
denotes that the host loses full control over his home and if this happens the host becomes
hostage of the guest. Derrida goes even further, he stresses that it always seems that the alien
has the power to free the host, it is as if the host is always the hostage of the guest.
This constant tension between the host who invites and seems to lose control the
moment the guest enters is, according to Derrida, paradigmatic for hospitality. It is a
permanent movement between the absolute infinite, indeterminate other as ghost and the
definite, identifiable and singular guest. It is an interaction between the infinite Law of
hospitality and the finite laws, this interaction is hospitality. This ‘is’ has however no
presence, it bears the traces of absence. If we welcome the singular and identifiable alien, the
absolute other is erased, but if I welcome the infinite, absolute other the singular alien is
erased. We see a same pattern in the welcoming of the alien, if we welcome the alien, we are
already welcomed by the alien, who is already welcomed by us. The welcome thus bears the
traces of the welcoming by the alien.
5.
The Language of Hospitality
I.
Introduction
In the previous chapter the antinomic character of hospitality has been discussed drawing on
several texts from Derrida and Levinas. In the following I will relate the gained insights to the
case law of the Court on the prohibition of refoulement as read into Article 3 of the
Convention. As we found in chapter two the Court came to other conclusions in the ‘case of
Salah Sheekh’ than the Dutch authorities. In this chapter I will endeavour to understand this
different outcome by analysing the said case law of the Court and making use of the Derrida’s
perspective on hospitality.
First I will discuss in greater extent the case law of the Court on Article 3 and focus on
a certain dichotomy which seems to be apparent in this case law. This situates the case of
Salah Sheekh in the broader perspective of the Court’s ruling on this topic. After this
discussion I will relate the two seemingly contradictory patterns we found in the case law to
the notion of hospitality as described in the previous chapter. This might explain why we
encountered a divergence in the way the Court and the Dutch authorities have dealt with
Salah Sheekh.
II.
Absoluteness and Balancing in the Case Law of the Court
In the case law of the Court (including the case of Salah Sheekh) it is put forward (by the
Court) that Article 3 is absolute and one of the most fundamental values of democratic
society. At the same time however, the assessment whether treatment reaches the minimum
level of severity test is relative. Furthermore, the Court has stressed on several occasions that
the search for a fair balance between the demands of the general interest of the community
and the requirements of the protection of the individual’s fundamental rights, is inherent in
the whole Convention151 and should therefore also be applied to the absolute Article 3. Thus
the absolute Article 3 is subject to a fair balance test. But this is not the only relativity about
the absolute prohibition. As we saw in the foregoing, the question which the Court tried to
answer was whether an expulsion to the ‘relatively safe’ or ‘relatively unsafe’ areas would be
in violation with Article 3. This seems to be in itself paradoxical, the question is in another
words: Can an expulsion to the ‘relatively safe’ or ‘relatively unsafe’ areas of Somalia lead to
a violation of the absolute prohibition of torture, inhuman or degrading treatment or
punishment? We are in other words faced with a prohibition which seems to have at the same
time absolute and relative aspects.
In the next paragraphs we will discuss these two aspects in greater extent.152 Before
we however discuss these different lines of argument, we have to take a preliminary step. To
understand how it is possible that one text, such as Article 3 of the Convention, leaves room
for different interpretation we have to pause for a moment at the question whether legal texts
determine the outcome of legal disputes.
151
See e.g. Soering, par. 89.
For this discussion we will heavily lean on the analysis in Battjes 2008, Battjes 2009 and Addo & Grief 1998.
The latter is being used rather for his overview of case-law than for his perspective, since we disagree with his
premise that ‘ideally, an absolute prohibition or an absolute right should leave no room for doubt about its
scope’, Addo & Grief 1998, p. 516. We will see in the remainder of this endeavour that we not only deem it
impossible to establish beyond any doubt what the scope of such an absolute right is, we also believe that such a
perspective is contrary to the structure of the discourse.
152
42
II.1
Indeterminacy
The question as to whether law constraints judicial decision, in the sense that it is determining
for the outcome of a legal dispute, is a hotly debated issue in legal thought.153 It is not
necessary within the context of this endeavour to entirely repeat this discussion. For our
purpose it is enough to take the not very controversial stance that (at least) some legal texts
have indeterminate aspects.
The legal positivist H.L.A. Hart, who might serve as an example of a scholar who in
many ways believes in the determinacy of legal language, stated that linguistic expressions
have in addition to their core of well-established meaning a penumbra of uncertainty.154
‘Whichever device, precedent or legislation, is chosen for the communication of standards of
behaviour, these (…) will, at some point where their application is in question, prove
indeterminate, they will have what has been termed an open texture’155 This open texture is,
in the view of Hart, caused by the fact that men are handicapped by our relative ignorance of
fact and our relative indeterminacy of aim. If we would not have been handicapped in such
manner, language would be fully determinate. In the core of legal texts is thus, according to
Hart, determinate.
For Hart, as for most legal scholars, language and more in particular legal expressions
are thus most often very clear and determinate. In most cases the outcome is ‘determined’ by
the text of the provision at hand. There will however, according to Hart ‘always be certain
legally unregulated cases in which on some point no decision either way is dictated by the law
and the law is accordingly partly indeterminate or incomplete’.156 Without further engaging in
this discussion, we could say that the text ‘No one shall be subjected to torture or to inhuman
or degrading treatment or punishment’ leaves open room for such interpretation (whether this
is because it is a ‘hard case’ or because every case leaves open this possibility).157 As
Koskenniemi rightly points out, (international) normative language is loaded with expressions
which are indeterminate in the sense of Hart’s description. Terms as ‘torture’, ‘inhuman’ and
‘degrading treatment’ require reflective interpretation. The lack of a straightforward
formulation leaves open the possibility of conflicting readings.158
The Court acknowledges that the question as to whether a certain treatment falls under the
scope of articles 3 is open for interpretation. According to the Court’s case law the ‘illtreatment’ of Article 3 ‘must attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level of severity is relative; it depends on all
circumstances of the case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the victim.’159 There are thus no
153
See for an introduction to this debate, Solum 1999.
Idem, p. 38.
155
Hart 1997, p. 127-128.
156
Idem, p. 272.
157
I tend to agree however with Koskenniemi’s stance in this perspective: ‘My point is that even if semantic or
evaluative indeterminacies were cleared, the international legal system as a whole would still remain
indeterminate. It would still lack the capacity of providing coherent justification.’, Koskenniemi 2005, p. 62.
Douzinas has put it nicely: ‘Legal texts are bound by their context but the context itself is boundless.’, Douzinas
2004, p. 206. Duncan Kennedy stresses ‘is to get rid of the idea that there is an objective boundary line we can
draw between questions of law that have correct determinate answers and questions that can be resolved only
through ideological choice’, Kennedy 1997, p. 19.
158
Koskenniemi 2005, p. 38.
159
Idem, p. 29.
154
43
abstract and absolute standards for the kind of treatment which is prohibited by Article 3.160 It
thus necessarily demands for a judgement as to whether a certain treatment falls under the
provision. Such a judgement is not determined by rules set up beforehand and thus leaves
room for different readings.
As we saw in chapter two, another level of indeterminacy can be distinguished before
this minimum level of severity assessment. As we found in the case of Salah Sheekh we
interpret the story which he presents us (his-tory) in our procedure as well. In this process of
interpretation there is also room for different readings (e.g. our-story and his-tory). Thus the
assessment as to whether treatment falls under Article 3 is relative, but the assessment of how
we formulate the story of Salah Sheekh is in itself open for interpretation as well. This in
combination with the minimal formulation of the provision itself makes it possible to read
contradicting arguments in Article 3, since ‘it is (…) commonly recognized that the openness
of legal language causes contradiction in argument.’161
If we indeed take this indeterminacy of Article 3 for granted, it becomes possible to analyse
the arguments which the Court uses in its case law. Since the text of the provision itself is not
determinate for the outcome of the dispute, the reasoning of the Court should in itself be
convincing. In the following we will analyse the line of argument which stresses that Article 3
is absolute and fundamental (and thus leaves no room for derogation) and the line of
argument which underlines that Article 3 should be balanced with other competing arguments
(and thus leaves room for derogation).
II.2
‘The Absolute Prohibition’
There seem to be several arguments in favour of the idea that Article 3 enshrines an absolute
prohibition. In the following we will discuss arguments supporting this view.
II.2.1 Structure of the Convention
Article 3 states: ‘no one shall be subjected to torture, inhuman and degrading treatment or
punishment’. From a linguistic perspective one could say that if one takes this literally it
connotes that absolutely no one will be the subject of the described treatment. The
formulation leaves no room for derogation. This brought the Court to state in Ireland v United
Kingdom:
‘The Convention prohibits in absolute terms torture and inhuman and degrading treatment or
punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the
Convention and o Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for
exceptions and, under Article 15 (2) (art. 15-2), there can be no derogation therefrom even in the
event of a public emergency threatening the life of the nation.’162
So besides the actual formulation of the article the Court points at the structure of the
Convention. Whereas several articles in the rights and freedoms section of the Convention are
provided with a limitation clause in its second paragraph, the prohibition of torture has no
such clause. Battjes stresses that in the application model of the Court the second step, the
limitation phase, lacks. Therefore there seems to be only one step in the reasoning of the
160
Van Dijk et al. 2006, p. 412-413. Vermeulen further states that this ‘is almost inevitable in the case of the
application of an abstract norm, containing subjective concepts, to conrete cases.’
161
Koskenniemi 2005, p. 61.
162
ECtHR 18 January 1978, Ireland v. United Kingdom, Series A, No. 25 [1978] 2 EHRR 25, para. 163 as cited
in Addo & Grief 1998, p. 513.
44
Court, namely whether an act qualifies as torture, inhuman or degrading treatment or
punishment.163 In addition to this argument, article 15 of the Convention forbids any
derogation from Article 3 in the event of a public emergency.
II.2.2 Fundamental Values and Jus Cogens
As Battjes rightly points out, this argument is so far not conclusive yet. In the Convention we
can find more provisions which lack a limitation clause, such as article 6, which cannot be
said to be absolute. Furthermore, article 15 merely warrants that even in times of emergency
no derogation can be made of Article 3 (whereas according to this provision derogation from
a number of other provisions is acceptable.). This however does not rule out the possibility of
any internal, implicit limitation to Article 3.164 In a number of cases the Court has dealt with
this issue and stresses that Article 3 ‘enshrines one of the fundamental values of democratic
societies making up the Council of Europe’.165 In Soering the Court even states that the
absoluteness of the prohibition shows that it enshrines such fundamental values.166 In its
Chahal judgement the Court yet again stresses this importance. Even when States are faced
with immense terrorist violence, the Convention does not allow any limitation to the
prohibition of torture: ‘The Convention prohibits in absolute terms torture, inhuman or
degrading treatment or punishment, irrespective of the victim’s conduct’167. This means, as
Battjes indicates, that the Court uses a circular reasoning: the absoluteness stems from the
fundamental importance of the provision, which importance the Court deduces from the fact
that it is absolute.168
Before Battjes discusses the jus cogens character of the provision, he concludes on the base of
the text and the context that Article 3 is absolute, it does not allow for limitations or
derogations. The ‘fundamental importance’ statement of the Court is however, according to
Battjes, a value statement, or a quality which cannot be logically derived from text. Whereas
we agree with his point that it is perfectly possible to argue on the base of these arguments
that the provision is absolute, we do not agree with his distinction between ‘value statements’
and ‘qualities that can be derived from the Convention text’. Let us briefly have a look at this
distinction in order to illuminate our position on adjudication and to raise some objections to
this ‘positivist stand’ (we will get to this in greater extent in the next chapter).
First of all, Battjes’ conclusion is that Article 3 is absolute169. According to Battjes this
absoluteness connotes that the article does not allow for any limitation or derogation. This
definition of absoluteness however, does not logically follow from the text of the Convention
either, nor has it been defined by the Court. It is actually not a very clear term as a discussion
by Addo en Grief shows.170 But even if we would follow this definition we find it hard to
163
Battjes 2009, p. 4.
Ibid.
165
ECtHR 7 July 1989, Soering v. United Kingdom, no. 14038/38, par. 88; see e.g. ECtHR 15 November 1996,
Chahal v United Kingdom, no. 70/1995/576/662, par. 79; ECtHR 21 November 2001, Al-Adsani v. United
Kingdom, no. 35763/97, para. 59; ECtHR 26 July 2005, N. v. Finland, no. 38885/02, para. 160; ECtHR 28
February 2008, Saadi v. Italy, no. 37201/06, par. 127.
166
Soering v United Kingdom, supra note 164, par. 88. See Battjes 2009, p. 7 for an illuminating analysis of the
structure of the Court’s argument in Soering.
167
Chahal v. United Kingdom, supra note 164, par. 79.
168
Battjes 2009, p. 4.
169
Battjes does not say that it is absolute, but that it is possible on the base of the arguments brought forward to
state that it is absolute. In the remainder of his article he will bring forward counter-arguments and conclude that,
according to the case-law of the Court it is both absolute and relative.
170
Addo & Grief 1998, p. 513 - 516.
164
45
reach from the premises we find in the literal text of the Convention the conclusion that
Article 3 is absolute. Take the argument (of the Court) that other provisions explicitly allow
for limitations. To reach, according to the rules of logic, from this premise and the premise
that Article 3 lacks such explicit derogation clause, the conclusion that Article 3 is absolute,
we miss a step. Namely that a provision is absolute if it is not explicitly relative. This premise
however cannot be found in the text nor can it be derived from logic reasoning. Strangely
enough Battjes uses a similar argument related to the reasoning of the Court on article 15 (2):
‘nor does Article 15 warrant the conclusion that Article 3 does not implicitly allow for
limitation. Article 15 merely means that the state of emergency does not change the scope of
protection of the Article, implicitly limited or not.’171 We therefore find Battjes argument
convincing, but think that, from a ‘logical perspective’, we are obliged to take his stand
further. We think it is impossible to ‘save’ parts of the reasoning of the Court by stating that
they can be logically derived from the text, and to put away other arguments as ‘value
statements’. We think that, especially in this subject, (almost) every statement of the Court is
value laden and cannot be logically derived from the text.172
Beside the argument related to the structure of the Convention and the alleged fundamental
importance of the provision, the Court puts forward another argument. In Al Adsani it held
‘that the prohibition against torture has achieved the status of a peremptory norm of
international law’173. This would imply that the prohibition should be seen as a norm of jus
cogens, that it would override all conflicting principles and provisions of international law.
Without getting into an in-depth discussion of this concept, we can denote that the Court uses
this argument to once again stress the absoluteness of the provision.174
II.2.3 The Absolute Prohibition of Refoulement
In its famous Soering judgement the Court held that the extradition of an alien can be contrary
to the prohibition of Article 3. This is a remarkable step for the Court since it seem to be in
contradiction with Article 1 of the Convention which states that the member states shall
secure the protection the rights and freedoms of the Convention to everyone within their
jurisdiction. In other words, the Soering judgement grants extra-territorial effect to the
prohibition of torture. The Court comes to this conclusion because
‘It would hardly be compatible with the underlying values of the Convention, that "common
heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers,
were a Contracting State knowingly to surrender a fugitive to another State where there were
substantial grounds for believing that he would be in danger of being subjected to torture,
however heinous the crime allegedly committed. Extradition in such circumstances, while not
explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be
contrary to the spirit and intendment of the Article, and in the Court’s view this inherent
obligation not to extradite also extends to cases in which the fugitive would be faced in the
receiving State by a real risk of exposure to inhuman or degrading treatment or punishment
proscribed by that Article (art. 3).’175
This ‘inherent prohibition’, which is ‘fundamental’ and underlies the provision, has an
obvious absolute characteristic. Apparently this value is so important, so absolute, that we
even want to garanty it outside our jurisdiction. The fundamentality of the values enshrined in
171
Battjes 2009, p. 4.
In this perspective we draw on the work of Kennedy 1997 (as does Battjes 2009, see footnote 5).
173
Al-Adsani v. United Kingdom, supra note 164, para. 61.
174
Battjes 2009, p. 6-7.
175
Soering v. United Kingdom, supra note 164, para. 88.
172
46
the provision seems to imply its universal pretention, which cannot be limited by borders. The
Court however, does not state it in such frank manner. It moves around the jurisdictional
argument by stating that it is the responsibility of the state which is about to extradite the
alien, not to expose him to treatment contrary to Article 3. So the violation of the article
comes into play the moment one of the contracting parties extradites an alien to a country in
which he runs a real risk to be exposed to torture, inhuman or degrading treatment.
In both Chahal and Saadi the Court reaffirmed this absoluteness of the provision.176 In
Chahal the Court states:
‘Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (…) The
Court is well aware of the immense difficulties faced by States in modern times in protecting
their communities from terrorist violence. However, even in these circumstances, the Convention
prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective
of the victim's conduct.’177
The Court further takes away the impression that the absoluteness would only entail the
element of ‘torture’ and not ‘inhuman or degrading treatment or punishment’:
‘The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in
expulsion cases. Thus, whenever substantial grounds have been shown for believing that an
individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if
removed to another State, the responsibility of the Contracting State to safeguard him or her
against such treatment is engaged in the event of expulsion (…). In these circumstances, the
activities of the individual in question, however undesirable or dangerous, cannot be a material
consideration. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned
extradition to the United States, clearly and forcefully expresses the above view. It should not be
inferred from the Court's remarks concerning the risk of undermining the foundations of
extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing
the risk of ill-treatment against the reasons for expulsion in determining whether a State's
responsibility under Article 3 (art. 3) is engaged.’178
On the base of these arguments it is possible to believe that Article 3 is absolute, leaving no
room for derogation or limitation. It entails one of the most fundamental values of our
democratic society, the structure and the text of the Convention also direct us towards this
conclusion, we explicitly reject the possibility of derogation and we even give the provision
an extraterritorial effect. So according to this reading, Article 3 is as absolute as absoluteness
can be!
II.2.4 Founding Fathers
A final argument for the conviction that Article 3 enshrines an absolute and fundamental right
can be found in the travaux préparatoires of the provision. Whereas the travaux on Article 3
of the Convention does not serve as an influential source for the interpretation of this
provision, we can find some testimonies which strengthen us in the believe that Article 3 is
absolute, or at least drafted with such pretention in mind. One of the statements of the
Consultative Assembly of the Convention, reads as follows:
‘The Consultative Assembly takes this opportunity of declaring that all forms of physical torture
(…) are offences against Heaven and Humanity and must be prohibited.
176
And takes away the argument that only ‘torture’ would be absolute in cases of refoulement and not in cases of
inhuman and degrading treatment. We will discuss this argument further in paragraph III.3
177
Chahal v United Kingdom, supra note 164, para. 79.
178
Idem, par. 80-81.
47
They declare that this prohibition must be absolute and that torture cannot be permitted for any
purpose whatsoever, either for extracting evidence, for saving life or even for the safety of the
State.
They believe that it would be better even for Society to perish than for it to permit this relic of
barbarism to remain’179
This Consultative Assembly does not leave any room for misunderstanding: this provision is
not only absolute, no a breach of it is against ‘Heaven and Humanity’ and a ‘relic of
barbarism’. Without getting into a discussion what these terms could connote, we can denote
that a significant moral claim is introduced. We should not only refrain from torture because it
is an absolute provision, we also stress that a breach is such a barbarity that it undermines the
values of our ‘Society’.
Another interesting argument is provided by member Teitgen from France, who relates the
importance of the provision to its formulation:
‘If we add a commentary on these statements, whose terms have been carefully weighed, we
shall limit their scope to the comments which we make. For example, I shall shortly have to tell
our very dear colleague that if, in our Resolution, he enumerates a certain number of means of
torture which he wishes to have prohibited, he risks giving a wholly different interpretation from
that which he hopes to make, namely that the processes of torture are not forbidden. And this is
certainly the opposite of what he intends. I really think that the best way of stating the
fundamental principle which he expressed a short while ago, and behind which every men of
heart and conscience will immediately and entirely take his stand, is simply to state that all
torture is prohibited. When this is stated in a legal document and in a diplomatic Convention
everything has been said. It is dangerous to want to say more, since the effect of the Convention
is thereby limited’180
Teitgen thus stresses that because of its importance, the provision should be drafted in
abstract words and not specific examples of what is prohibited. Otherwise we would run the
risk of not prohibiting situations we would like to prohibit. This argument of Teitgen is
closely related to the next argument about the structure of the Convention.
II.3
‘The Balanced Prohibition’
The Court thus leaves us with the believe that Article 3 features an absolute prohibition,
which is so fundamental that even the extradition of someone to an area outside the borders of
the Court’s jurisdiction could breach it. Such an absolute prohibition leaves no room for
limitation or derogation one would say. There is however another line of argument visible in
the case law of the Court, which, on first sight, seems to be in striking opposition with the
former. Despite the importance of the prohibition and its declared absoluteness, the Court has
on several occasions argued in a way which could be understood as a form of derogation or
limitation.
The Court has always stressed that it is a matter of well-established international law
that states have the right to control the entry, residence and expulsion of aliens.181 It is
obvious that the absolute prohibition of refoulement infringes on this sovereignty over its own
borders. According to the line of argument mentioned in the former paragraph, this right of
control over its own territory can, occasionally, be overridden by the prohibition of
179
Travaux préparatoires, Assembly Doc. 1949, no. 91, p. 236.
Ibid.
181
See e.g. ECtHR 30 October 1991, Vilvarajah v. United Kingdom, no. 13163/87, par. 102.
180
48
refoulement because of the importance of the underlying values.182 In the following we will
discuss arguments for the position that it is possible to balance the prohibition of refoulement
of Article 3 with other competing interests.
In its Soering judgement the Court has not only stressed the fundamental values that are
enshrined in Article 3, it also held that the search for a fair balance between the demands of
the general interest of the community and the requirements of the protection of the
individual’s fundamental rights is inherent in the whole Convention.183 It goes on to state:
‘As movement about the world becomes easier and crime takes on a larger international
dimension, it is increasingly in the interest of all nations that suspected offenders who flee
abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives
would not only result in danger for the State obliged to harbour the protected person but also
tend to undermine the foundations of extradition. These considerations must also be included
among the factors to be taken into account in the interpretation and application of the notions of
inhuman and degrading treatment or punishment in extradition cases.’184
The Court seems to leave open the possibility that a certain balancing is possible relating to
treatment which is ‘inhuman or degrading’, not treatment which is deemed as ‘torture’.
However, as mentioned in the former paragraph, the Court held in its Chahal judgement that
the whole of Article 3 is absolute, no matter whether it the treatment constitutes ‘torture’,
‘inhuman’ or ‘degrading’ treatment. After this judgement it seemed for a while that the
‘balancing line of argument’ was abandoned in expulsion cases.185
The Court even went as far as stating in its famous St. Kitts judgment186 that in
exceptional circumstances the extradition of a man who was in the critical stage of his illness
to a country where he would be exposed to a real risk of dying under most distressing
circumstances would amount to inhuman treatment.187 This is an excellent example of the
statement of the Court that treatment which meets the minimum level of severity is prohibited
in an absolute manner. One would therefore think that from the St. Kitts judgement onwards,
numerous severely ill people would be granted a residence permit since their extradition was
prohibited by Article 3. Since this judgement however, the Court has never found a proposed
extradition of an alien to be in violation with Article 3 on the grounds of the applicant’s illhealth.188 The Court subsequently held that the very specific circumstances of the case were
not to be found in the following cases. It held for example in the Bensaid case189, concerning
a schizophrenic patient, that the suffering would fall under the scope of Article 3, but that the
alleged deterioration of his condition was to a large extent speculative. Can we believe this
argument of the Court? Is there absolutely no form of balancing in the qualification as to
whether the treatment constitutes a breach of Article 3? For finding answers on these
questions it might be illuminating to have a closer look at the Court’s recent judgement in N.
v. United Kingdom.190
In this case it was alleged that the expulsion of ‘the applicant’ would constitute a breach of
Article 3 similar to the St. Kitts case. The Court however held that:
182
See e.g. ECtHR 27 May 2008, N. v. United Kingdom, no. 26565/05, par. 30.
Soering v. United Kingdom, supra note 164, par. 89.
184
Ibid.
185
Battjes 2009, p. 11.
186
ECtHR 2 May 1997, D. v United Kingdom, no.30240.
187
Idem, par. 53-54.
188
N. v United Kingdom, supra note 8, par. 34.
189
ECtHR 6 February 2001, Bensaid v United Kingdom, no. 44599/98.
190
Ibid.
183
49
‘Furthermore, inherent in the whole Convention is a search for a fair balance between the
demands of the general interest of the community and the requirements of the protection of the
individual’s fundamental rights. Advances in medical science, together with social and economic
differences between countries, entail that the level of treatment available in the Contracting
States and the country of origin may vary considerable. While it is necessary, given the
fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of
flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation
on the Contracting State to alleviate such disparities through the provision of free and unlimited
health care to aliens without a right to stay within its jurisdictions. A finding to the contrary
would place too great a burden on the Contracting State.’191
Thus the Court stresses that the fundamental importance or absoluteness of the provision
gives the Court the possibility of a certain flexibility to prevent expulsion in very exceptional
cases, because if the Court would do it in all the cases this would place too great a burden on
the states. In other words the absolute prohibition, which leaves no room for derogation, is
only applicable in very exceptional circumstances, otherwise the state would be obliged to
provide for unlimited health care, which is obviously an unwanted outcome. If we read this in
the light of the first sentence of the quotation we find it hard to neglect the idea that our
absolute provision is being balanced with the interests of the community not to provide
unlimited health care. This is also what the judges put forward in their dissenting opinion with
the judgment:
‘This principle should therefore equally apply where the harm stems from a naturally occurring
illness and a lack of adequate resources to deal with it in the receiving country, if the minimum
level of severity, in the given circumstances, is attained. Where a rigorous examination reveals
substantial grounds for believing that expulsion will expose the person to a real risk of suffering
inhuman or degrading treatment, removal would engage the removing State’s responsibility
under Article 3 of the Convention.’192
So if the minimum level of severity is reached, it should not make a difference whether this is
reached because of a lack of adequate resources or naturally occurring illness. The dissenters
strongly disagree with the ‘highly controversial statement’ relating to the fair balancing which
is supposed to be inherent in the whole Convention.
‘the balancing exercise in the context of Article 3 was clearly rejected by the Court in its recent
Saadi v. Italy judgment of 28 February 2008, confirmed the Chahal judgment of 15 November
1996’193
Despite the objections of these dissenters the ‘fair balancing’ made it to the majority
judgement and therefore we cannot, on the basis of N. v United Kingdom and the previous
negative decisions on these questions, otherwise than conclude that beside the ‘absoluteness’
of the provision a certain ‘balancing’ seems to be possible.194 In the next paragraph we will
discuss the indeterminability of language and laws as an extra possibility for balancing. In the
same paragraph we will however note that, contrary to the statement of Terlouw who hopes
that the ruling in N. v. United Kingdom is an incident195 and the dissenters of the judgement
191
192
Idem, par. 44, emphasis added.
Joint Dissenting opinion of Judges Tulkens, Bonello and Spielmann, N. v. United Kingdom, supra note 8, par.
5.
193
Idem, par. 7.
See also Terlouw 2008, p. 1050-1051.
195
Ibid.
194
50
who believe in the absoluteness of the provision, this balancing is an intrinsic aspect of the
case law of the Court and more general of the question of hospitality.
III.
Absoluteness and Balancing as Aspects of Hospitality
In chapter II we followed the ‘case of Salah Sheekh’ from the initial interview to the Court
and encountered a different outcome. In the foregoing paragraphs of this chapter, two
seemingly contradictory movements paradigmatic for the Court’s adjudication in cases of
refoulement under Article 3 have been discussed. In this (and the next paragraph) I will relate
these ‘patterns of justification’ to the question of hospitality as posed by Derrida.
On the one hand the Court takes ample opportunity to stress the importance and absoluteness
of article 3, whereas, on the other hand, we see that a certain balancing can be found in the
Court’s reasoning. These two patterns of argument are mutually exclusive. ‘Absoluteness’ is
understood as leaving no room for derogation and ‘balancing’ as the possibility to derogate if
this is in the interest of the community. The case-law of the Court therefore seems to be
contradictory. How can something be A and non-A at the same time?
III.1
Patterns of Justification
We have seen that Article 3 leaves room for discussion of its meaning and scope, it even leads
to seemingly contradictory readings. In the remainder of this chapter I will however not seek
for ‘the right’ or ‘the best’ meaning or explanation of the provision. I will rather focus on how
Article 3 functions as an important technique in the adjudication of the Court. I will, as
Schinkel defines it, use Article 3 as a form of ‘separating writing’ and analyse how it creates
inclusionary and exclusionary techniques in the discourse.196 In conceptualising the positions
of ‘absoluteness’ and ‘balancing’ as discursive symbols, these can be used to reveal the own
rationale of the adjudication of the Court in Article 3 cases. These discursive symbols denote
patterns of justification which are used by the Court in its case law of Article 3.
We have seen that Article 3 makes possible two different patterns of argument which I
have labelled ‘absoluteness’ and ‘balancing’. Such an analysis of two seemingly contradictory
patterns within one structure, as found in the prohibition of refoulement of Article 3, is
strongly reminiscent of Martti Koskenniemi’s famous From Apology to Utopia. In this
influential work Koskenniemi analysed the structure of the international legal argument and
observes that there are two patterns of justification, ‘ascending’ and ‘descending’. These two
are exhaustive and mutually exclusive. A descending argument of justification is ‘premised
on the assumption that a normative code overrides individual State behaviour, will or
interest’197. An ascending argument is ‘premised on the assumption that State behaviour, will
and interest are determining of the law’198. This observation however, does not bring
Koskenniemi to conclude that the legal argument is irrational or fully indeterminate. He rather
argues ‘that the structure or form of the international legal argument is indeed determinate in
that it follows certain recurring patterns – a constant dissociation and association of
arguments about normativity and concreteness and an attempt to avoid material solution. To
this extent, international law has a structure.’199
196
Schinkel 2008, p. 38, 39. Schinkel dubs this a ‘diagrammatica’.
Koskenniemi 2005, p. 59.
198
Ibid.
199
Idem, p. 69.
197
51
I believe that this can be illuminating for Article 3 as well. The indeterminacy of Article 3
does not lead to an arbitrary form of adjudication in which the outcome of a certain dispute
cannot be determined at all. Instead of such a sceptic outcome I think that in the case law of
Article 3 certain patterns of justification can be distinguished. In line with Koskenniemi’s
analysis of international legal argument, my point is here that the structure of the argument of
the court is determinate in that it follows certain recurrent patterns. On the one side we find a
pattern of justification which is grounded on the ‘absoluteness’ of the provision. Such a
justification stresses the fundamental importance of Article 3 and underlines that because of
the fundamental values which underlies this provision, derogation is impossible. On the other
hand we find a pattern of justification which leaves room for derogation if this is in the
interest of the community.
In the following paragraph I will argue that these two patterns of justification are
related to the two aspects of hospitality as described by Derrida.
III.2
Article 3 and Hospitality
In the previous paragraph we have seen that a recurrent line of argument of the Court is based
on the absoluteness and fundamentality of Article 3. This argument is used by the Court to
stress the importance of the provision and to put to the fore a strong line of reasoning in
favour of the inclusion of the alien. The use of immense notions as ‘most fundamental value’,
‘jus cogens’ and ‘common heritage of political traditions, ideals, freedom and the rule of law’
seem to connote a strategic reasoning. If such notions denote something then it is at least
something of great importance. What can one put forward against something which denotes
the most fundamental value? What is stressing that something denotes jus cogens else than
stressing that one cannot derogate from it? And if something stems from our common
heritage, how can we disagree with it then? On the other hand, what can one say if the general
interest of the community is invoked? Or against the pragmatic argument that one cannot
expect from a country to provide for unlimited health care?
To understand this reasoning of the Court it can be illuminating to be reminiscent of Derrida’s
description of hospitality. The recurrent patterns of justification found in the case-law of the
Court can be understood to denote the two contradicting but inseparable perspectives of
hospitality. One the one hand there is the responsibility for the individual with whom I am
faced. It is this responsibility which is ‘absolute’ and ‘fundamental’ and which does not leave
any room for derogation. This aspect demands that I welcome the other beyond his qualities;
it is the inclusionary aspect of hospitality. On the other hand there is however, intrinsically
related to the former aspect, the ‘general interest of the community’ which becomes apparent
with the notion of the third. It is this notion which obfuscates my responsibility for the other.
In order to prevent my responsibility for the other to become utopian or violent towards others
(e.g. other aliens or ‘members of my community’). Hospitality thus requests a constant
struggle or permanent movement between these two competing, seemingly contradictory but
intrinsically, inseparable aspects. The case law of the Court with its two patterns of
justification is thus, as understood in the light of Derrida’s hospitality, an excellent example
of this movement. One the one hand it upholds the absolute welcoming of the other because
of my responsibility for him. This responsibility is most urgent, since the other alleges that he
runs the risk of beings subjected to torture, inhuman or degrading treatment. On the other
hand the Court sees the risk that the welcoming of this singular other threatens the welcoming
of others or of the general interest of the society.
52
The case of St.Kitts might serve as the best example for this tension. In this and its subsequent
judgements, the conflict between the responsibility for the singular alien as well as for the
interest of the general community becomes tragically apparent. Let me recall the
considerations of the Court:
‘The limited quality of life he enjoyed resulted from the availability of sophisticated
treatment and medication in the United Kingdom and the care and kindness administered
by a charitable organisation. He has been counselled on how to approach death and has
formed bonds with his carers. The abrupt withdrawal of these facilities will entail the
most dramatic consequences for him. It is not disputed that his removal will hasten his
death. There is a serious danger that the conditions of adversity which await him in St
Kitts will further reduce his already limited life expectancy and subject him to acute
mental and physical suffering. Any medical treatment which he might hope to receive
there could not contend with the infections which he may possibly contract on account of
his lack of shelter and of a proper diet as well as exposure to the health and sanitation
problems which beset the population of St Kitts (…) In view of these exceptional
circumstances and bearing in mind the critical stage now reached in the applicant's fatal
illness, the implementation of the decision to remove him to St Kitts would amount to
inhuman treatment by the respondent State in violation of Article 3.’200
In this judgement one can see that the Court lets the exceptional circumstances of ‘the
applicant’s’ story prevail over general considerations implied by the appearance of the third.
It is as if the Court, who is faced with the depressing situation of the applicant (a notable
detail is that at the day of the hearing, there was a marked decline in the applicant’s condition
because of which he had to be transferred to a hospital201) feels the urge of the responsibility
towards this alien. It is as if the Court forgets that the interpersonal relation with the other is
limited by the relation with the third. Its judgement seems to be merely based on the
responsibility for this singular other.
This judgement might thus serve as an example of a situation which is best understood
from the perspective of the Law of Hospitality. The singularity of the other at question here,
takes precedence over the responsibility the Court has towards the community in question.
This should however not be understood as an argument to stress that this judgement was a
mistake or the only right judgement in this context. Rather this serves as an explanation why
this judgement seems to differ from the subsequent cases.
In the following cases, e.g. N v. United Kingdom, the Court held that it had a certain
flexibility to prevent expulsion in very exceptional cases, since a finding to the contrary
would place too great a burden on the Contracting State. While drawing on its ‘balancing’
pattern of justification, the Court seems here to look at the case from the perspective of the
laws of hospitality. It focuses on its responsibility towards the third and stresses that this
responsibility towards the institutional form of association should prevail here.
III. 3 The Pattern of Absoluteness in the Case of Salah Sheekh
In the previous chapter we saw that hospitality has inclusionary as well as exclusionary
aspects. If new arrivals meet the criteria of our law of hospitality, they are welcomed as
guests, if they do not, they can only force their way into our house as a parasite. Before we
can even judge whether a new arrival complies to our laws, he has to use our language and
make himself known, reveal his identity. In other words, the absolute other, this radical
otherness which is infinite and larger than I can encompass, has to ‘become’ an identifiable
other, someone with a name and identity, he has to become ‘subject’ to our laws. In chapter
200
201
ECtHR 2 May 1997, D. v. United Kingdom, no. 30240, paras. 50-52. Emphasis added.
Idem, para 51.
53
two we encountered however, that this becoming subject of our laws implied, in the case of
Salah Sheekh, that his-tory was substituted by our-story: the metamorphosis into the
applicant. In the next paragraph I will discuss whether I believe that this metamorphosis is
necessary and desirable. In this paragraph I want to distinguish the way the Court has dealt
with Salah Sheekh from the way we have done this in our procedure.
As we saw in the foregoing paragraphs of this chapter, the reasoning of the Court in its
case law on article 3 can best be understood as patterns of justification which reflect the two
competing interests of the notion of hospitality. The Court endeavours with this approach to
negotiate between the exclusionary aspects of the laws of hospitality and the inclusionary
aspects of the Law of hospitality. If we bear this in mind and have a look again at the way the
Court dealt with the case of Salah Sheekh an interesting aspect comes to the fore. The Court
uses in this case its ‘absoluteness’ pattern of justification in order to provide an argument to
use other information about the situation in Somalia than the government has provided:
‘The establishment of any responsibility of the expelling State under Article 3 inevitably
involves an assessment of conditions in the receiving country against the standards of
Article 3 of the Convention (…). In determining whether it has been shown that the
applicant runs a real risk, if expelled, of suffering treatment proscribed by Article 3, the
Court will assess the issue in the light of all the material placed before it, or, if necessary,
material obtained proprio motu, in particular where the applicant – or a third party within
the meaning of Article 36 of the Convention – provides reasoned grounds which cast
doubt on the accuracy of the information relied on by the respondent Government. In
respect of materials obtained proprio motu, the Court considers that, given the absolute
nature of the protection afforded by Article 3 (my emphasis, MCS), it must be satisfied
that the assessment made by the authorities of the Contracting State is adequate and
sufficiently supported by domestic materials as well as by materials originating from
other reliable and objective sources such as, for instance, other Contracting or nonContracting States, agencies of the United Nations and reputable non-governmental
organisations.’202
Apparently the Court has doubts about the Government’s assessment of the ‘facts’ relating to
the situation in Somalia. Therefore it stresses that ‘given the absolute nature of the protection
afforded by Article 3’, it must be satisfied that the assessment made by the government is
adequate. Consequently the Court makes its assessment on the base of UNHCR reports,
therewith refuting the assessment of the Dutch government. The pattern of ‘absoluteness’ is
thus being used to make a reassessment of the facts in Somalia possible. But why the Court
wants such a reassessment, remains unclear. Why does the Court opt for such a reassessment
in favour of Salah Sheekh? In order to answer this question in the conclusion of this essay, I
will try to reassess what happened with Salah Sheekh in the Dutch procedure.
IV.
The Metamorphosis Reassessed: Our procedure and Hospitality
Let us quickly recall the metamorphosis. In chapter II we learned that we do not believe the
his-tory of Salah Sheekh. We concluded that since he is not providing us documents and
convincing information relating to his age, identity, nationality and travel route, we deem history, and subsequently him, incredible. In other words, his-tory is not of any use for us and we
feel ourselves therefore forced to replace it with our-story. We thus give birth to ‘the
applicant’, who’s identity and story are based on our-truth. We base our-story on ‘objective
information’ about the country where ‘the applicant’ came from, on scientific results from age
examinations and on (the lack of) other documents which are objective in our story. Because
of this we feel ourselves forced to conclude that ‘the applicant’ is an incredible creature, who
202
Salah Sheekh v. The Netherlands, par. 136.
54
does not speak our-truth about his age, identity and travel route and motives for his asylum
request. Furthermore we conclude that because of reliable information (contrary to the overall
incredibility of the applicant) we have from the situation in Somalia, the fact that ‘the
applicant’ did not make a convincing case that the circumstances in Somalia were directed
specifically at him and because of his overall incredibility, we cannot grant him a residence
permit. We gave birth to a creature who is a hologram of our-story, this creature is the subject
of our procedure.
We thus see a substitution of the his-tory of Abdirizaq Salah Sheekh by the our-story
of ‘the applicant’. In the following I will try to illuminate and criticise the way we dealt with
Salah Sheekh by referring to Derrida’s notion of hospitality which can be characterised as
Janus-faced phenomenon203.
Derrida convincingly argued that hospitality is a contradictory concept, with inclusionary and
exclusionary aspects. One the one hand it has the aspect of the Law of Hospitality with its
infinite welcome of the absolute other. In such absolute welcoming one welcomes the other
without asking for his identity or his-tory. The other is being welcomed regardless of his
predicates, it is as if one welcomes a ghost. This Law of Hospitality should therefore not be
mistaken for a higher form of hospitality or a universal ethics which we should reach
eventually. It is rather an infinite aspect of hospitality which goes beyond the I, it is larger
than I can grasp. This infinite hospitality needs its finite antonym, the laws of hospitality. The
latter are characterised as being restrictive in the sense that they choose who is welcomed as a
guest and who is not. Such laws imply that we demand from the alien to reveal himself, we
insist that his-tory is being told in our language and we persist that his-tory and his identity
should be in accordance with the requirements of our laws.
Hospitality has thus two aspects, let us first focus on the laws of hospitality. In the case of
Salah Sheekh we have replaced his-tory of Salah Sheekh by our-story of ‘the applicant’. If
one tries to look at this process solely from the perspective of the laws of hospitality this
metamorphosis can be partially be justified. It can be seen as a manner to control the
migration flux, to generalise from singular cases to abstract rules, in other words to decide
who can enter my home and who cannot on the base of general rules. This is in accordance
with the concept of the home, since this is the place where I have authority. If I could not
decide who enters this place, I would not have the full authority over my home.
We have thus first asked from the alien, that he identifies himself in our language. He
has to tell in our language what his name, age, date of birth and ethnic origin are. Part of our
language, or at least of our truth, is that he ‘objectifies’ this with documents.
As soon as he fulfilled this requirement and we know him as Salah Sheekh, we ask
him to make a convincing argument that we should led him in. We stress that we deem
convincing what can be found in our documents, what can be verified by our sources and
what can be established in objective documents. This is what is implied in the authority over
our home, if we would not have this possibility, we should simply believe every story. And if
we believe every his-tory this implies that we have no control as to which story falls under
our laws of hospitality. If one for example states that he is subjected to torture by the ruling
class of a certain country, we would not have the possibility to verify or control this. This
would denote that we could not have selective laws in the first place. In order to make sure
that not every story qualifies for a residence permit without our control, we restructure history.
203
Ianus or Janus is the ancient Italic god of gates and public passages and patron of all beginning. He is a
mysterious figure though influential figure who brought human civilization. Reeth 1995, p. 121.
55
This movement from his-tory to our-story is can thus partially be understood as leap
from the singular case before us to general rules of entrance (a phenomenon which seems to
be intrinsic to the field of law).204 If we want to judge the singular alien with whom we are
faced according to the general rules, we necessarily have to leap from singularity to
generality, a step which we in fact see in every ‘case’ before an adjudicator. If one wants to
compare a singular his-tory to other his-tories, one needs to set the context or to formulate in
the same language. One needs to make sure that one has the same frame of reference.
Therefore we reformulate a singular his-tory in the language of our-story, so that we can
compare it with other ‘cases’ and the general rule (which is formulated in this language as
well).
In fact this closely relates to Levinas’ notion of the third. In the laws of hospitality my
relation with the singular other (you) is obfuscated by the appearance of the third. My
responsibility for the alien (a you) with whom I am faced should be balanced with my
responsibility for others (the third). One of the binds of hospitality is that it demands for
general rules of adjudication. This clarifies in the case of Salah Sheekh that we not only ask
for his name, identity, age and travel route, but also want to verify it (according to our
standards). This is necessary to make adjudication possible, to judge his singular case in a
similar way as other singular cases. We therefore need to abstract from his-tory and replace it
by our-story (which is verifiable). The ‘birth of the applicant’ might be seen as paradigmatic
for this movement.
The perspective of the laws of hospitality can however only partially justify the way we have
dealt with Salah Sheekh, since we did not only generalise from the singular case to the
general rules, we transformed him into something else. We constructed a creature which
seems to have no relation whatsoever with Salah Sheekh. Nothing in the domestic procedure
of Salah Sheekh seems to imply that the government takes into account the otherness of Salah
Sheekh. It has disappeared and is replaced our ‘applicant’ with our predicates. An illustrative
example of the violence of this movement and the incommensurability between ‘the
applicant’ and Salah Sheekh, is the moment where the government official confronts Salah
Sheekh with ‘his’ new age. Characteristic of the violence towards Salah Sheekh’s otherness
and his despair is his reaction: ‘I do not agree with this. That I just get another age. I have an
age of my own. That is the date of birth I have been given by my mother.’
This is in great contradiction with the otherness of the singular Salah Sheekh and thus with
the perspective of the Law of Hospitality. In this aspect of hospitality my responsibility for
the other as singular other is the primary focal point. It entails that I welcome the other as
infinite other, that I welcome him beyond his identity, beyond my grasp of his otherness. I
thus just welcome him before asking any question. Whereas the laws of hospitality thus
demand that we generalise from the his-tory of Salah Sheekh, in the Law of Hospitality the
exact opposite movement is visible: I do not even ask for his-tory. I welcome him beyond his
predicates, beyond his-tory.
The Law of Hospitality thus goes beyond the singularity of Salah Sheekh towards the
absolute otherness of the alien as ghost. In the ‘case of Salah Sheekh’ we were however
encountered with an opposed movement. Instead of welcoming him beyond his identity, we
204
In the United States a certain number of aliens per year is given a residence permit on such a ‘irrational’
ground. Everyone who wants to apply for a permanent resident card in the United States can apply for a permit
through the ‘Green Card Lottery’. The U.S. Government selects then randomly by a computer generated drawing
55.000 aliens who can receive the permit. Afterwards there are however certain ‘additional requirements’ which
make that it in the end is just another form of migration policy. See
http://www.usimmigrationsupport.org/greencard lottery.html.
56
not only requested his name and identity, but even replaced it by our version. Such total
replacement violates the otherness of Salah Sheekh. It is important to denote however, that in
the welcoming of the Law of Hospitality I am engaged in a relation with the singular other. It
is my responsibility for the other in our binary relation. The moment I am confronted with the
face of this other I am responsible for him. This is a pure singular relation in which I take the
other as other and refrain from occupying his characteristics (and replace it with an abstracted
own version). It thus, as mentioned earlier, runs the risk of becoming phantomatic.
Applied to Salah Sheekh this would mean that I would welcome him without asking
questions. I would open the borders for him, invite him to enter my home without demanding
to comply to the laws, without even making himself known. And if he would tell me his-tory,
I should believe it.
If I try to take the two aspects of hospitality into account while scrutinising the way we have
dealt with Salah Sheekh I cannot otherwise than conclude that we have not been hospitable to
Salah Sheekh in our procedure. Whereas we saw that a certain generalisation is necessary if
we want to draft general laws in order to deal with my responsibility towards the third, the
entire replacement of Salah Sheekh’s identity is both incomprehensible as well utterly unjust.
It is not only violent towards his otherness it even erases it (and therewith him). Furthermore,
the fact that we consequently deem this ‘applicant’ to be an incredible creature, because he
does not speak our-truth about his age, identity and travel route and motives for his asylum
request, is a further violation of this otherness.
6.
Conclusion: The Other Language of the Court
“‘Weg muß es’, rief die Schwester, ‘das ist das einzige Mittel, Vater. ‚Du mußt bloß den Gedanken loszuwerden
suchen, daß es Gregor ist. Daß wir es solange geglaubt haben, ist ja unser eigentliches Unglück. Aber wie kann
es denn Gregor sein? Wenn es Gregor wäre, er hätte längst eingesehen, daß ein Zusammenleben von Menschen
mit einem solchen Tier nicht möglich ist, und wäre freiwillig fortgegangen. (...) So aber verfolgt uns dieses Tier,
vertreibt die Zimmerherren, will offenbar die ganze Wohnung einnehmen und uns auf der Gasse übernachten
lassen.’ ”
Franz Kafka, Die Verwandlung, p. 101-102.
In an instructive essay on ‘law and justice in postmodernism’ Costas Douzinas describes what
he calls the ‘postmodern aporia of justice’: ‘to act justly one must treat the other both as equal
and as entitled to the symmetrical treatment of norms, and as a totally unique person who
commands the response of ethical asymmetry’205. I think this nicely illustrates the tension of
hospitality as described in the ‘case of Salah Sheekh’ and the case law of the Court.
Hospitality has two binds, one towards the other as part of a greater association of others (the
third) and one towards the other as unique and absolute other.
In this endeavour I have tried to show that this constant tension between these binds is
determinate for our migration law. In order to get a better understanding of the way the Court
has dealt with Salah Sheekh, I have situated his case within the broader perspective of the
case law of the Court on Article 3. In this case law I examined certain patterns of justification,
namely ‘absoluteness’ and ‘balancing’. On the one hand a line of argument is possible in
which the Court declares Article 3 to be of an absolute character, enshrining one of the most
fundamental values of democratic societies (‘absoluteness’). On the other hand an
argumentation is apparent in which the court underlines the possibility to balance the
provision against certain community interests (‘balancing’).
Subsequently I have related these patterns of justification to Derrida’s notion of
hospitality. The indeterminacy of Article 3 leaves open the possibility of contradicting
patterns, which reflect the underlying antinomy of hospitality. In its case law the Court thus
takes both elements of hospitality into account. Such an analysis explains why the two
patterns can be found in the case law and provides for a better understanding of what is at
stake in the context of migration law. Drawing on this perspective: The Court’s judgement in
the case of Salah Sheekh shows that the Court used the ‘absoluteness’ pattern of justification
in order to provide for an argument to reassess the situation in Somalia in favour of ‘the
applicant’. This provided the Court with an opportunity to use ‘official documents’ from other
organisations such as UNHCR. We saw in chapter three that it is as if the Court by using its
own language (not being the language of the other nor of the government) wants to take
position in-between Salah Sheekh and the Dutch government.
In the last paragraph of the previous chapter I have endeavoured to clarify why the
Court uses its patterns of absoluteness in the case of Salah Sheekh, through a re-examination
of the metamorphosis of chapter two. The substitution of the his-tory of Salah Sheekh in the
asylum procedure in the Netherlands and therewith his erasure is not in compliance with the
demands of hospitality. Subsequently we declared ‘the applicant’ to be an ‘incredible’
creature. He does not speak our-truth about his age, identity, travel route and motives for his
asylum request. We held him responsible for not complying with our-truth and our-story. Or
more accurate, we abstracted from his-tory to our-story, erased his-tory and consequently held
him responsible for not complying with his only identity: ‘his’ our-identity. From the
perspective of hospitality this is hard to grasp. Such practice seems to be entirely directed at
205
Douzinas 2004, p. 214.
58
declining the appeal of ‘the applicant’ to enter our country. Furthermore, it is a severe
violation of the otherness of Salah Sheekh. Whereas a certain generalisation can be
understood in the light of the bind to judge the singular case in accordance with the demand
of the third, this vitiation of his-tory is merely used to keep ‘the alien’ outside our borders. It
entirely violates his-tory and takes the ‘fact’ that it differs from our-story as reason to deem
him incredible (and therewith diminish his chances of success in our procedure enormously).
It is this severe violation of Salah Sheekh’s his-tory which can be seen as the
underlying rationale for the Court’s conviction in the ‘case of Salah Sheekh’. I think that,
from the perspective of the Court, the way we have dealt with Salah Sheekh is such a gross
violations of his otherness, that the Court felt an urge to take up speech. As we found in
chapter three, this speech is a gift of the silence which exists between the laws and the Law,
between politics and ethics. This silence is important, it is the non-response to ethics or the
non-response to politics. It is a hiatus, which enables people to take up speech, it gives
speech. In the case of Salah Sheekh the Court took up this speech to stress that in the case of
Salah Sheekh we violate his otherness and therewith violated the Law of Hospitality.
Therefore the Court used its ‘absoluteness’ pattern of justification to revoke the ‘fact’ ourstory of the Dutch government. Whereas it did not replace this our-story with Salah Sheekh’s
his-tory, it did find a position independent from the government stance. Herewith it gave the
singular Salah Sheekh the possibility for a permanent stay in The Netherlands, while at the
same time condemning a certain general practice in the asylum procedure in the Netherlands.
I hope that I have in this essay while focussing on the singular story of Salah Sheekh brought
to the fore a tension which can also be found in the case-law of the Court. With the help of
texts of Derrida and Levinas I have argued that this tension is intrinsic to the field of
migration law. In my opinion the Court’s case law gives rise to a good understanding of both
aspects of hospitality. The Dutch authorities seem to be less hospitable. It is as if the
government, created ‘the applicant’ in order to have him expelled. It substituted Salah Sheekh
to make it easier to get rid of him. By doing so, the approach of the Dutch government seems
to resonate the words of the sister of Gregor Samsa: ‘He must go, that’s the only solution!’
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