Posted by: birdsongslaw | February 23, 2009

Violence Against Foreigners in Germany

Birdsong’s student Kurt Bressler has written an outstanding paper concerning violence against foreigners in Germany since the fall of the Berlin  wall.  Birdsong wishes to share it  with the wider world.  Read and learn.

Immigration Reform and Violence Against Foreigners in Unified Germany

Written by: Kurt Bressler

  I. Introduction

           

            Since the fall of the Berlin Wall, Germany has struggled in its quest for an effective and all encompassing solution to the dichotomy between its immigration laws and the omnipresent xenophobic violence associated with them. In reality, this is not a problem which is unique to Germany; all countries struggle with racist violence in one form or another. Historically though, Germany has shown a correlation between the passing or relaxation of its immigration laws and a spike in racist violence, especially in the area formerly known as East Germany.

            An example of the racist violence faced by non-ethnic Germans can be seen in the United States asylum application filed by Zakia Mashiri. [FN1]. Zakia and her husband are natives of Afghanistan who lived in Germany following the fall of the Berlin Wall. On numerous separate occasions, the Mashiri’s were subjected to violence based on their non German background. One such incident occurred when Zakia’s husband was severely beaten in his taxi after being subjected to racial slurs and threats. [FN2]. He was also beaten in a similar fashion on several other occasions. The Mashiri’s son was also beaten by neo-nazi’s several times while returning home from school. [FN3]. Each time, the reason for the attack was explicitly stated: Germany is for German’s. 

________________________________________________________________________

[FN1].             Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004).

[FN2]. Id. at 1115.

[FN3]. Id. at 1117.

                        Another poignant example of the violence endured by foreigners in Germany occurred in November of 2007. A group of eight Indian asylum seekers were chased through the town of Muegeln while being subjected to racial insults. [FN4]. The mob, which consisted of about 50 German citizens, besieged the Indians inside a restaurant. The violence culminated with the throwing of bottles and rocks in an attempt to cause severe physical harm. [FN5]. The incident required a force of 70 riot police to stop the violence and rescue the group trapped inside the restaurant. [FN6].

 

II. The Fall of the Berlin Wall and the New Wave of Immigrants

           

            After deconstruction of the communist regime in Eastern Germany, leaders of both Germany and the EU feared the potential for the explosive growth of refugee seekers [FN7]. This fear did not become an immediate reality. Instead, the slow development of war in areas such as the former Yugoslavia forced the number of asylum applicants to rise steadily [FN8]. ________________________________________________________________________

[FN4]. http://www.reuters.com/article/latestCrisis/idUSL20443465.

[FN5]. Id.

[FN6]. Id.

[FN7]. 36 Tex. Int’l L. J. 235.

[FN8]. Id.

            The number of asylum seekers in 1989 was 193,000 compared to the 438,000 in 1992 [FN9]. This number constituted approximately sixty percent of all asylum applications filed in the EU [FN10]. These statistics do not take into account the resettlement of an additional 200,000 ethnic Germans from Eastern Europe [F11]. The unification of families torn apart by the division of Germany accounted for another 100,000 applications [FN12]. Finally, it is difficult to place an exact number on the illegal immigrant population but in 1992, the number was estimated between 100,000 and 200,000 people [FN13]. In all, the number of people arriving in Germany in 1992 was approximately one million [FN14].

            The huge number of applications for asylum in Germany was a direct response to the “open arms” attitude of the German people after the fall of the Berlin Wall [FN15]. It has been posited that this attitude arose due to the proximity of Western Germany to the bleak reality which was communist Eastern Europe [FN16]. This “open arms” attitude ________________________________________________________________________

[FN9]. Id at 236.

[FN10]. Id.

[FN11]. 7 Geo. Immigr. L. J. 798.

[FN12]. Id.

[FN13]. Id.

[FN14]. Id.

[FN15]. 32 Tex Int’l L. J. 325.

[FN16]. Id.

 

was stemmed by an ever deepening recession due to the oppressive costs of reunification [FN17].

            German leaders have also found it necessary to remind the people of a post World War II debt owed to the people of Europe and the larger world [FN18]. Supposedly, this debt was owed to the refugee’s who fled political persecution and the foreign skilled workers who played such a vital role in the reconstruction of Germany after the War [FN19]. 

            Despite the pleadings of German leaders and in response to the recession and loss of jobs, racist violence committed by skinheads and other right wing groups was a common occurrence [FN20]. There were 2,285 incidents of racist violence in Germany in 1992 as reported to Germany’s Federal Office for the Protection of the Constitution [FN21]. This number includes explosions, fire bombings, assault and battery cases, and incidents of property damage [FN22]. These racially motivated attacks correlated to a xenophobic sentiment among the German population, especially strong among the youth, and resulted in 17 deaths [FN23]. ________________________________________________________________________

[FN17]. Id.

[FN18]. 7 Geo. Immigr. L. J. 795.

[FN19]. Id.

[FN20]. Id.

[FN21]. 8 Fla. J. Int. L. 36.

[FN22]. Id.

[FN23]. 34 Vand. J. Transnat’l L. 657

            In spite of the attacks and xenophobic sentiment, a poll taken among young people in Eastern Germany in 1993 revealed that 74% of those questioned believed that Germany should feel ashamed by the violence against foreigners [FN24]. Many of those questioned realize the importance of the “Gastarbeiter,” or foreign worker, in the incredible growth of German post war industry [FN25].

           

III. Reasons for the Increase in Racially Motivated Attacks

           

            One of the main reasons for the rise in xenophobic violence in Germany during the early 1990’s was the ballooning unemployment rate [FN26]. The unemployment rate in Western Germany in 1993 was 2,257,600 and 1,194,400 in Eastern Germany [FN27]. A large portion of the German population blamed these exorbitant numbers on the presence of foreigners. In reality, the number of foreigners threatening job security in Germany after the fall of the Berlin Wall was small [FN28]. This is due in part to the fact that most foreigners in Germany are placed in jobs which few Germans want [FN29].

________________________________________________________________________

[FN24]. 7 Geo. Immigr. L. J. 801.

[FN25]. Id.

[FN26]. 8 Fla. J. Int’l L. 55.

[FN27]. Id.

[FN28]. Id at 56.

[FN29]. Id at 57.

            From 1990 to 1993 and beyond, Germany faced a labor shortage [FN30]. During

this time the economy was in desperate need of young skilled workers. This lack of skilled labor forced Germany to focus on the admittance of foreigners to fill the gap [FN31]. Ironically, the thousands of asylum seekers who were denied the ability to obtain legal employment were forced to languish in impoverished areas in Eastern Germany [FN32]. This had a major impact on the xenophobic sentiment in the area. While many Germans were unemployed at the time, the asylum seekers were able to obtain government housing and a stipend [FN33]. 

            In addition to the unemployment crisis, Germans faced a housing crisis which forced many to resort to living on the street [FN34]. Many of the foreigners who entered Germany during this time were housed in state run facilities [FN35]. The government was also faced with a surplus of asylum seekers which forced it to create novel solutions to the lack of suitable housing [FN36]. The solutions included housing the excess in anchored ships, army barracks, and school gymnasiums [FN37]. Germany was also

________________________________________________________________________

[FN30]. 7 Geo. Immigr. L. J. 812.

[FN31]. Id.

[FN32]. Id.

[FN33]. Id at 812.

[FN34]. 8 Fla. J. Int’l L. 56.

[FN35]. Id.

[FN36]. Id.

[FN37]. Id.

 forced to house some of the asylum seekers in tents, a last resort usually seen only in the developing world [FN38]. The lax asylum regulations during this time allowed many foreigners to stay in Germany for a period of years, thereby adding to the already dire housing situation [FN39].

           

IV. Germany’s Solution to the Immigration Problem of the Early 1990’s

           

            In light of the rising anti-foreigner sentiment and the explosion of asylum seekers, Germany was forced to reform its asylum and immigration laws. In 1993, the German government decided to restrict its asylum law and amend the Constitution [FN40]. One of the main attempts at restriction came in the form of an exclusion of asylum seekers who had crossed the borders of “safe” countries in their travels to Germany [FN41].

            The Thirty-Ninth Amendment to the Basic Law embodied the German attempt to restrict asylum law. During its redrafting of the Constitutional amendments, Germany repealed the old Article 16(2) which guaranteed that “[p]ersons persecuted on political grounds shall enjoy the right of asylum [FN42].”

________________________________________________________________________

[FN38]. Id.

[FN39]. Id.

[FN40]. Tex. Int’l L .J. 237.

[FN41]. Id.

[FN42]. 34 Vand. J. Transnat’l L. 656.

                        The new 16a of the Thirty-Ninth Amendment restated the old 16(2) but included 16(a)2 which denied asylum to anyone who: “…enters the country from a member state of the European Communities or another third country where the application of the Convention relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms is assured [FN43].”

            The Thirty Ninth Amendment had been hailed as a “neutral policy” addressing the route asylum seekers took when traveling to Germany [FN44]. In reality, it was a response to the overwhelming number of applications filed in the years following the collapse of communism in Eastern Europe [FN45]. One of the most prominent problems with the Amendment was the possibility of refoulement (return to persecution) [FN46]. Those seeking asylum in Germany were subject to the “safe third country” rule which denied their ability to present their claim to German immigration authorities if they met the criteria, regardless of merit and need [FN47].

            It is important to note that all of the countries surrounding Germany have been deemed “safe [FN48].” Safe countries are those which “guarantee the application

________________________________________________________________________

[FN43]. Id at 657.

[FN44]. 36 Tex. Int’l L.J. 243.

[FN45]. Id.

[FN46]. Id.

[FN47]. Id.

[FN48]. Id at 244.

f the 1951 Refugee Convention and the European Convention on Human Rights and have been designated as safe by Parliament [FN49].” Being surrounded by safe nations has a predictable effect on asylum applicants who arrive by land. These individuals are immediately denied access at the border [FN50]. In fact, all applicants are presumed to have arrived by land unless they can prove they arrived by air or sea [FN51]. 

            In addition to the passing of the constitutional amendment, the public demanded the courts take a tougher stance when sentencing perpetrators of racially motivated violence [FN52]. The result of the increased sentences was the dissipation of much of the racially motivated violence by the end of 1992 and the beginning of 1993 [FN53].

            The policies and changes to the Constitution were a harsh yet seemingly necessary series of developments in response to both public outcry and xenophobic sentiments. By the year 1994, the number of asylum seekers fell to a “low” 127,000 [FN54]. This number stands in stark contrast to the almost 500,000 legal applicants in 1992 [FN55].

________________________________________________________________________

[FN49]. Id at 243.

[FN50]. Id at 244.

[FN51]. Id.

[FN52]. 34 Vand. J. Transnat’l L. 657.

[FN53]. Id.

[FN54]. 36 Tex. Int’l L.J. 237.

[FN55]. Id.


V. The German Immigration Act of 2004

 

            The new Immigration Act which was introduced in 2004 and put into effect in 2005 has been hailed as the first comprehensive German framework for immigration [FN56]. This Act was Germany’s attempt to address its existing and future immigration needs and dilemmas [FN57]. The Act as a whole was an attempt to foster both “openness and inclusiveness [FN58]. Unfortunately for Germany and it’s newly introduced Act, experts in the field of immigration predict that the Act will require extensive revision in response to changing conditions in both Germany and the EU as a whole [FN59].

            Perhaps the most significant change to take effect through the new legislation was the Residence Act. The previous complicated system of “residence titles” have been reduced to just two [FN60]. These two titles are the “Limited Term Residence Permit” and the “Unlimited Term Settlement Permit [FN61].” A notable result of the new act is the ability of foreign students to remain in Germany for one full year in an attempt to gain work experience [FN62].

________________________________________________________________________

[FN56]. 24 Berkeley J. Int’l L. 386.

[FN57]. Id.

[FN58]. Id.

[FN59]. Id.

[FN60]. Id at 387.

[FN61]. Id at 388.

[FN62]. 24 Berkeley J. Int’l L. 386.


           

            Arguably the most significant change accompanying the new act is the German attempt to attract and retain skilled workers [FN63]. This change made it easier for qualified and skilled workers to enter Germany and remain there [FN64]. The families of skilled workers may also enter and remain in Germany [FN65]. Self employed persons were allowed to enter Germany if they invested one million Euros and created at least 10 new jobs [FN66].

            The act also allowed for the creation of the BAMF (Bundesamt für Migration und Flüchtlinge). This was a departure from the past in that there was previously no specific governmental agency that “administered migrant related tasks [FN67].” The new BAMF was set up in order to “maintain the central registry of aliens and collect data relating to migration patterns, but will also develop and implement the new integration programs [FN68].”

________________________________________________________________________

[FN63]. Id.

[FN64]. Id.

[FN65]. Id. at 386.

[FN66]. Id.

[FN67]. Id.

[FN68]. 24 Berkeley J. Int’l L. 386.

 

           


           

            Unfortunately for German lawmakers, the new Immigration Act did not stem the xenophobic violence. Violence against foreigners took on a renewed seriousness after the “murder of Dutch filmmaker Theo van Gogh in mid-2004 and the outbreak of violence in France in late 2005 and in Denmark in early 2006 [FN69].” Incidentally, these acts of violence coincided with the 2004 expansion of the European Union.

 

VI. The 2004 Expansion of the EU

           

            In an attempt to expand its power base and political influence, the European Union welcomed Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia into its ranks [FN70]. The expansion was welcomed with open arms by the economically unstable former communist nations [FN71]. Several of the existing EU nations expressed fear that the inclusion of their newly democratic neighbors would “destabilize the EU and cause the economic growth to stagnate [FN72].” 

________________________________________________________________________

[FN69]. Id at 390.

[FN70]. 24 Berkeley J. Int’l L. 760.

[FN71]. Id.

[FN72]. Id at 764.

 

           


            In response to the fears expressed by many of the member nations, these countries passed transitional measures [FN73]. These measures effectively limited the ability of the citizens of the new member states to move freely within the European Union [FN74]. These measures counteracted one of the most prominent effects of the European Union: the freedom of movement of people and workers [FN75]. This movement allows citizens of member nations to enter and remain in other member nations for a reasonable amount of time in order to look for work [FN76].

            When faced with a wave of new immigrants originating in countries below the European Union average as it pertains to wealth, it is little wonder that citizens of existing EU nations, including Germans, reacted violently [FN77]. The German response was especially violent and racially motivated. In a report issued by the Federal Office for the Protection of the Constitution, the number of xenophobic attacks rose 25% in 2005 [FN78]. It has become apparent that due to fear of reprisal, victims of racially motivated violence often do not report attacks [FN79]. Accordingly, it can be assumed that the number of violent incidents is actually higher.

________________________________________________________________________

[FN73]. Id.

[FN74]. Id.

[FN75]. Id.

[FN76]. Id at 765.

[FN77]. Id at 784.

[FN78]. 39 Colum. Hum. Rts. L. Rev. 429.

[FN79]. Id.


VII. Proposed Solutions to the German Immigration Dilemma

           

            It is obvious that Germany has struggled for a solution to the problem of xenophobic violence from the fall of the Berlin Wall until the present day. The passage of anti-discrimination laws has done little to dissuade the perpetrators of these violent acts. Perhaps the most influential reason for the racial violence is the ballooning unemployment rate in Germany.

            According to the United States Bureau of Labor Statistics, the unemployment rate rose steadily from 1990 to an all time high of 11.7% in 2005 [FN80]. These numbers coincide with a rash of xenophobic violence perpetrated after the passage of the new German Immigration Act of 2004. The German unemployment rate has consistently been among the highest of all the world’s developed nations [FN81].

            It is apparent that Germany is faced with a daunting task. How does a nation deal with an incredibly high rate of jobless workers while satisfying its need for foreign skilled labor? How can Germany attract and maintain the skilled workers its industry so desperately needs without sparking more xenophobic violence? These are difficult questions which have been contemplated by German leaders for almost two decades.

            German youth have often struggled for a sense of identity in unified Germany. This struggle leads many young Germans to join right wing groups such as the neo-Nazi’s. These groups give the youth a purpose and goal: to expel the foreigners who have

________________________________________________________________________

[FN80]. http://www.bls.gov/fls/lfcompendium.pdf.

[FN81]. Id.


stolen their jobs and polluted their nation.

            In order to overcome the pull of the extremist groups, Germany must initiate a youth program which will give these individuals a succinct purpose. Perhaps a solution is to expand the existing defense force. According to the Federal Ministry of Defence, each young male is required to serve nine months in the military [FN82]. An alternative is civil service of 100 hours each year for six years [FN83].

            Perhaps by denying the ability to refuse military service, the German government would be able to foster cohesion amongst its youth. On the other hand, forced military service might be construed as oppressive, thereby exacerbating the existing lack of unity. An obvious yet important drawback to the buildup of German armed forces is the historic perspective by which we view Germany. In the last 100 years there have been two major instances of the buildup of military forces in Germany, both of which had major impacts on world history. For this reason, the military in Germany must be kept under close scrutiny and control.

            The current German immigration policy is aimed at attracting foreign skilled workers. This is due to the aging population in Germany and its inability to fill certain skilled positions. Instead of attracting outside labor, Germany would likely benefit from implementing a youth education program. By offering reduced or free tuition, Germany would be able to educate its youth, thereby creating its own base of skilled workers.

________________________________________________________________________

[FN82]. http://www.bmvg.de/portal/a/bmvg.

[FN83]. Id.


            These are cursory solutions to what is ultimately a problem with the German immigration policy as a whole. Up until the passing of Germany’s Immigration Act of 2005, the nation had little in the way of a comprehensive immigration policy [FN84]. As the leading European nation in the number of asylum applications, Germany has often been forced to adapt its immigration policy [FN85].

            According to the United States Bureau of Labor Statistics, after the Immigration Reform of 2004, the unemployment rate in Germany rose to 11.7% in 2005 then fell to 9% in 2007 [FN86]. According to these statistics, it would appear that the more restrictive immigration policy has relieved some of the pressure on the German economy. In my opinion, Germany must restrict its immigration policy to a greater extent. The European Union contains within its ranks, a number of viable options for asylum seekers. By further restricting its policies, Germany will effectively shift some of the burden to other EU members while allowing German citizens to fill the available jobs.

            By restricting its immigration policies, Germany must not forget its commitment to global humanitarian efforts. Those seeking economic opportunities in Europe may have their choice of successful democracies elsewhere. Legitimate asylum seekers who have fled their homeland due to persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group should be given the opportunity to present their case. The “safe third nation” policy should remain in effect as

________________________________________________________________________

[FN84]. 41 Vand. J. Transnat’l L. 269.

[FN85]. Id at 276.

[FN86]. http://www.bls.gov/fls/lfcompendium.pdf.


it effectively denies “asylum shopping.”

            Germany may also benefit from a policy which takes into consideration the applicants previous denials of asylum in other countries. First time applicants will be denied unless there are extenuating circumstances. Other applicants who have already applied for asylum in other countries and have been denied would be examined more thoroughly. At first glance, this policy seems backwards in its application. In reality, this type of policy would encourage applicants to seek asylum elsewhere while relieving the burden on the German economy. Those whose applications have been denied in other countries would be given the normal scrutiny.

            More stringent immigration policies and the “safe third nation” policy have the potential to reduce the number of asylum seekers who enter Germany. This reduction in the number of immigrants would likely force Germany to fill its available jobs with existing German citizens. The short term effect of filling positions with less qualified individuals will reduce the effectiveness of the German economy as a whole. On the other hand, allowing Germans to fill positions once held by immigrants would alleviate the unemployment crisis. The long term effect of forcing Germans to fill available positions will be a decrease in the unemployment rate. The lowering of the unemployment rate will decrease the reliance of the German youth on extremist groups for a sense of identity and purpose, thereby reducing the rate of xenophobic violence.

            The ultimate goal of a reduced rate of racially motivated violence must be reached through policy changes, but at what cost? Should Germany deny all asylum applicants on the basis of its own economic and unemployment crisis? Should Germany shift the burden of humanitarianism to its neighbors? Ultimately, Germany will likely reach a


compromise between its own needs and the needs of the global community. As it stands, the unemployment rate seems to indicate that Germany has not yet struck that balance.

 

VIII. Conclusion

 

            Since the end of World War II, Germany has been the promised land for huge numbers of asylum seekers and immigrants. As a successful industrialized nation, Germany offers economic stability which is wholly unavailable in many countries of origin. As such, Germany had to endure decades of liberal immigration policy which culminated in early 1990 with the opening of the border between Eastern and Western Germany.

            During the early 1990’s Germany attempted to maintain its open borders policy as it pertained to immigration. Faced with extreme numbers of people fleeing economically depressed former communist nations, Germany was compelled to pass a series of radical constitutional amendments limiting the approval of potential asylees. This attempt to limit the number of people admitted was met with mixed success. Even after the implementation of the new policies, Germany remained the most popular nation for asylum applicants in the European Union.

            During this time, the incidents of xenophobic violence continued to rise. German youth joined extremist groups at an alarming rate as the unemployment rate continued to soar. The incidents of violence were reduced after the passing of the amendments in 1993 but were not eliminated. The expansion of the European Union in 2004 saw a resurgence of racially motivated attacks.


            Germany must face its past and present with a renewed sense of steadfast devotion. This devotion must come in the form of a commitment to its own populace. Instead of continuing its pattern of ever more restrictive immigration policies, it must finally approve policies aimed at strictly limiting the number of asylum applicants who are allowed to enter and stay in the country. Perhaps this will finally solve the ever present unemployment crisis and force the German people to fill the vacant positions for skilled workers.

 

 

 

 

 

 

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