Thread by @GarrettPetersen

I decided to do a deep dive to figure out what it would take for European voters to change the law to allow them to deport migrants. For instance, say the voters of Italy wanted to deport Syrian terrorists to Syria. What would they need to do, legally to get that outcome? 🧵

https://twitter.com/GarrettPetersen/status/1993424270312325325

The blocker to this is the European Convention on Human Rights (ECHR), adopted in 1950 in response to Nazi atrocities.

Article 3 bans torture. You might think torture means e.g. waterboarding someone to extract information. But through the magic of case law it means much more.

From the 1950s to the 1970s, Article 3 just meant you couldn't torture people in the normal sense. In 1978 an ECHR case expanded the definition of torture (or rather "inhumane treatment") to be about suffering caused, not, you know, actual torture.

In 1985, a German teenager slit his Canadian girlfriend's throats in America. Then the couple fled to Europe. In 1989, the ECHR ruled that he couldn't be extradited to America where he would face the death penalty.

This was huge, because it essentially made deporting countries responsible for anything that happened to a deportee after being deported. Over the next few decades, this was expanded from death penalty cases to routine deportations.

Life in Afghanistan sucks, so anyone sent there is going to have a life that sucks, so deporting anyone to Afghanistan for any reason (including terrorism, rape) is torture, so you can't do it at all. This is established law in all 46 ECHR signatory countries. Got it?

In 2012 the ECHR ruled that when you intercept a migrant boat in international waters, they fall under your jurisdiction, so the same rules apply. You can't send them back even if you stop them en route.

So how can an anti-migrant government get actual results while bound by ECHR case law? The nuclear option is to withdraw from the ECHR entirely. That means getting kicked out of the Council of Europe and the EU. You'd become a pariah state, but you'd at least have democracy back.

The other option is to change the ECHR from inside. I looked into actually changing the text of the agreement and it's all but impossible. You would need ALL 46 states to agree unanimously, which would never happen. Liechtenstein or Montenegro could just veto it.

But as I said above, it wasn't the text of the agreement that de-facto banned deportation. It was case law decided by activist judges who expanded article 3 way beyond what any signatory thought they were agreeing to when they signed on.

So what you really need is to get the European equivalent of Clarence Thomas onto the ECHR court, to restore the narrow interpretation of article 3. So what would it take to do that?

The ECHR court has 46 judges and they rotate through cases, with 17 judges presiding over each case. Also, the judge from your country always presides over cases involving your country, so can cast a swing vote if the other judges are split evenly.

How do judges get on the ECHR court? The country sends a shortlist of 3 judges to PACE (Parliamentary Assembly of the Council of Europe), and then PACE can select 1 of them or reject all 3. Poland tried selecting narrow-article-3 judges and PACE rejected them repeatedly.

So you need anti-migrant representatives holding the majority of PACE seats. There are 306 voting members, and they come from the parliaments of each of the nations, with large nations like France and Germany getting more seats than smaller nations.

So you need a population-weighted majority of European parliaments to be rightwing so you can control a majority of seats in PACE. Then you need at least 23 countries to nominate rightwing jurists to the ECHR court so that PACE can elect them.

Then once you've done that, those judges need to rule on deportation cases, overturning decades of case law to return to the narrow interpretation of article 3.

Only then can you deport convicted terrorists to their home countries.

So, uh, good luck.

*girlfriend's parents' throats