Nina Perkowski is a PhD student at the Graduate School of Social and Political Science, University of Edinburgh.
This article is the last of a three-part series introducing the EU border management agency Frontex. To read the first article introducing Frontex and describing its foundation, follow this link. The second article focused on common criticism of Frontex. This piece will outline the historical development of the agency in relation to human rights.
As a highly visible symbol of the EU’s exclusionary and restrictive immigration policy, Frontex has become something of an archenemy for many migrants’ rights activists in recent years. It has been reproached for being responsible for migrants’ deaths and has been said to hunt them. Scholars and NGOs alike have raised doubts regarding whether the agency operates within the confines of international law, and in particular whether it pays due respect to fundamental rights and non-refoulement. This article will provide a brief outline of the legal questions that Frontex’s operations raise, and will then move on to introduce the agency’s developments in terms of human rights in recent years.
Frontex conducts operations both at EU land and maritime borders, as well as beyond the EU’s territorial boundaries. Where it acts within EU territory, it is clearly bound to respect EU legislation, including legislation pertaining to fundamental rights and non-refoulement. In some instances, however, the question of whether the agency does in fact do so in practice has arose. Recently, Syrian refugees reported beatings and illegal refoulements across the Greek-Turkish border by officers in blue uniforms. While their accounts still need to be investigated and it is not clear whether the officers concerned were Frontex agents, the accusations should be taken seriously. Already in the past, there were accounts of Frontex being involved in illegal returns – so far, however, proof sufficient to bring Frontex before a European court has not yet surfaced.
Even if illegal returns were entirely the responsibility of national border guards of third country officials, and Frontex were not involved in the direct refoulement of asylum seekers, however, the agency might be guilty of subjecting migrants and asylum seekers to inhuman and degrading treatment by operating in situations in which their fundamental rights are not respected. Greece has been repeatedly condemned for failing to uphold human rights standards, and for detaining irregular migrants in inhumane conditions. By controlling the border and arresting undocumented migrants and asylum seekers, Frontex officers are at least partially responsible for subjecting them to detention conditions that are in clear violation of fundamental rights. Early last year, the European Court of Human Rights condemned Belgium for exposing an asylum seeker to degrading treatment by returning him to Greece under the Dublin system – Human Rights Watch rightly argues that, following the same logic, Frontex and Member States participating in the Frontex Joint Operation in Greece should be held accountable for their role regarding violations of migrants’ and asylum seekers’ fundamental rights.
While there are thus concerns regarding the contribution of Frontex to human rights violations within EU territory, these concerns might be even stronger where the agency acts without the possibility of independent monitoring – such as on the high seas – or outside of EU territorial boundaries – such as in Senegalese waters. Each year, hundreds of migrants die when attempting to cross the Mediterranean Sea, and therefore Frontex’s role in responding to distress calls is of particular importance. In 2011, during and after political unrest in North Africa (which prompted Frontex operation HERMES 2011 and the presence of NATO warships in the region), the Mediterranean was often referred to as the sea with the best surveillance in the world and, as an Italian official rightly described it, ‘I expect that sailing from Libya towards Italy should be a bit like doing a slalom between military ships. […] Paradoxically, 2011 [also] set a record for being one of the deadliest years for boat people in the Mediterranean’ (Tineke Strik, 2012). Frontex’s HERMES 2011 took place in the Sicilian Channel, patrolling the area with vessels and aircraft – in the same area, Fortress Europe reports 1,822 deaths in 2011. That same year, the harrowing story of the ‘ boat ‘left to die’ was covered by the Guardian and made the inadequacies of current responses to migrant boats in distress at sea more than apparent. According to the Council of Europe inquiry into the case, Frontex was also notified that the boat needed help. Just like the Italian, Maltese, and Libyan coastguards as well as NATO, Frontex did not take action. Two weeks later, the migrant boat had drifted back to the Libyan shore: 63 people had died, leaving only 9 survivors. I have argued elsewhere that the European Union systematically discourages a humanitarian regime at sea, accepting the deaths of thousands of people over the last two decades. Frontex is by no means the only actor whose role and responsibilities in relation to migrant deaths in the Mediterranean are to be questioned – but it is certainly an important one, and accordingly has recently been put under pressure by the European Parliament to take practical steps to improve its search and rescue capacity.
Aside from the urgent need to respond more adequately to calls of distress at sea, Frontex’s respect of non-refoulement has been thrown into question due to the agency’s actions at sea. Reflecting on an interview with Frontex vice-director Gil Arias-Fernandez, who justified interceptions and returns of migrant boats as saving migrant lives, Human Rights Watch deplored that ‘[a]side from the obvious problem of saying that a return policy has had a positive impact without knowing whether returnees’ human rights are being violated, Arias-Fernandez expresses the flawed proposition that a potential humanitarian benefit (preventing the loss of life at sea) trumps a human right (the right to leave and the right to seek asylum).’
Responding to mounting concerns regarding Frontex’s operations, the European Parliament’s Civil Liberties, Justice and Home Affairs Committee made clear as early as 2009 that ‘[t]he frontier of policing and control and the frontier of protection and human rights cannot be disconnected. If so, a zone of indistinction and arbitrariness, contrary to the EU values, is created.’ The emergence of such a zone is precisely what human rights advocates are concerned about, and they criticise not only the lack of transparency regarding Frontex’s actions, but also the lack of clarity in terms of which jurisdiction applies where and under which circumstances, and who is responsible for potential human rights violations at sea. Are Member States responsible? Or Frontex? Or third-country officers who cooperate with Frontex?
Initially, Frontex seemed oblivious to human rights concerns, perhaps reasoning that this was Member States’ responsibility and not anything the agency would have to address. Furthermore, human rights provisions and accountability mechanisms were nearly absent from its founding regulation, something which might be partly explained by the isolation of the European Parliament in the decision-making process (Léonard, 2009, p. 385). As Frontex has come under attack from activists, NGOs, scholars and even EU institutions, this has slowly changed. On the one hand, Frontex has increasingly adopted a human rights discourse when presenting itself externally. On the other hand, European institutions – most importantly the European Parliament – have sought to oblige it more clearly to respect fundamental rights throughout its work.
In 2010, the Council supplemented the Schengen Borders Code, calling on Frontex to respect international refugee and human rights law more explicitly. It made explicit that all surveillance operations conducted by Frontex are to respect fundamental rights and the principle of non-refoulement, that people intercepted ‘shall be informed in an appropriate way so that they can express any reasons for believing that disemarkation [sic] in the proposed place would be in breach of the principle of non-refoulement’ and that the special needs of vulnerable people (including those in need of international protection) are to be considered throughout each operation.
The following year, Frontex’s founding regulation was amended by the European Parliament and the Commission. In the consolidated version, fundamental rights have a much greater role than in the previous document – for instance, there is now the explicit possibility of ending missions when these do not uphold human rights standards. In addition, Frontex had to appoint a Fundamental Rights Officer to monitor its operations’ impact on migrants’ and refugees’ fundamental rights, and establish a Consultative Forum on Fundamental Rights. The Consultative Forum consists of six international organisations (United Nations High Commissioner for Refugees, Council of Europe; European Asylum Support Office; International Organization for Migration; European Union Agency for Fundamental Rights; Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe) and nine NGOs (Amnesty International’s European Institutions Office; Caritas Europa; Churches’ Commission for Migrants in Europe; European Council for Refugees and Exiles; International Catholic Migration Commission; International Commission of Jurists; Jesuit Refugee Service; Platform for International Cooperation on Undocumented Migrants; Red Cross EU Office).
While fundamental rights have thus been accorded a more prominent role in Frontex’s new regulation, Statewatch made the criticism that the changes do ‘not provide sufficient systematic, preventive and evaluative guarantees.’ It described the changes as ‘cosmetic’, emphasising that ‘[t]he discrepancy between the mere consultative nature of the [consultative] forum and the cruelty and serious reality of deaths at the external borders of the European Union is a sign that the Agency and the European Union still consider fundamental rights and Frontex’s accountability before democratically elected institutions to not be a top priority.’ Further, it has been deplored that the Consultative Forum will only have access to information selected and approved by the Management Board (see amended founding regulation, Article 26a(2)). Its members are moreover bound by rules of ‘professional secrecy’ and must not share classified information they obtain with the public.
Apart from these legal developments imposed from the outside, Frontex itself has also changed its public discourse on human rights in recent years. While until 2008, fundamental rights, asylum, non-refoulement or people in need of international protection were simply not referred to in Frontex’s publications, human rights were named once in both the 2008 and 2009 programmes. In the 2010 document, they were mentioned 6 times, in that of 2011 13 times, and in the 2012 programme of work 30 times - indicating the growing importance accorded to human rights rhetoric within the agency. Also press releases on missions and activities see an overall increase of human rights language.
In addition, Frontex signed a working agreement with UNHCR in 2008 and with the EU Fundamental Rights Agency in 2010. In March 2011 and thus before the amendments to its founding regulation, Frontex’s Management Board endorsed a fundamental rights strategy for the agency. In the accompanying press release, executive director Laitinen was cited with the following words: ‘Fundamental Rights and human dignity have always been at the heart of Frontex’s values. They are a founding principle of the EU itself and enshrined in the Lisbon treaty. It gives me great personal satisfaction to see the Member States, via the Management Board, so clearly endorse that commitment.’
In its rhetoric, then, the agency is (by now) fully committed to fundamental rights and the principle of non-refoulement. Its Fundamental Rights Officer took up her work on December 15th, and the Consultative Forum on Fundamental Rights already convened twice this year, and will have quarterly meetings from now onwards. Have the concerns of activists, scholars, NGOs and EU parliamentarians thus been addressed appropriately? Can we look towards a future in which Frontex will ensure that migrant and refugee rights are protected at all times and under all circumstances? While it might be too early to tell the effects of the newest human rights developments, including the influence of the Fundamental Rights Officer and the Consultative Forum, caution is certainly warranted. Frontex’s key aim of stopping irregular migration is and will remain fundamentally at odds with the principle of non-refoulement and the spirit of the 1951 Geneva Convention. The independent monitoring of many of their actions will remain impossible, as they take place outside of the public eye. And, despite a growing human rights discourse, Frontex remains a security organisation, which continues to conceptualise irregular migrants (including asylum seekers) as threats. For now, the recent improvements seem to constitute no more than ‘a drop of human rights in an ocean of unaccountability’, as Statewatch aptly phrased it.
Léonard, S. (2009). The creation of FRONTEX and the politics of institutionalisation in the EU external borders policy. Journal of Contemporary European Research, 5(3), 371–388.