AYS Special: Frontex and human rights — How did we arrive here? PART 1 (2004–2016)
By: Are You Syrious
Tags: European Union, Militarization, Special, Frontex, Pushback

2014

Personnel: 311 — Budget: €93.4m

June 1, 2014 — The March For Freedom arrives in Schengen, Luxembourg (Photo by Carole Reckinger)

General: Frontex starts a Social Media Monitoring project:

Amid the growing importance of Internet services such as Facebook and Twitter, Frontex Media Monitoring Team has initiated social media monitoring activities. The upgrade and expansion of the media monitoring products has been introduced by adding the content retrieved in the social media platforms to a daily newsletter, internal alerts and responses to various media information requests. The main focus is to increase awareness of what is being said in the social media about Frontex institutional activities and operations, as well as web discussions on irregular migration and border management issues.(Frontex, General Report 2014).

The project is the first in a series carried out by EU and intergovernmental agencies. UNHCR will produce one single report (2017), forwarded by an editorial note in which it announces that outcomes of such projects are relevant to different stakeholders, including national and EU law enforcement agencies, and as such they go beyond UNHCR’s mandate. This project will be taken over by EASO in 2017. Both EASO and Frontex projects will be discontinued in 2019, following criticism.

November 1: Joint Operation TRITON is launched. “With a monthly budget of EUR 2,9 million the agency will coordinate the deployment of three open sea patrol vessels, two coastal patrol vessels, two coastal patrol boats, two aircraft, and one helicopter in the Central Mediterranean.” It basically replaces Italian Navy’s Operation Mare Nostrum, ended on October 31st, by merging ongoing Operations HERMES and AENEAS. Where Mare Nostrum focused primarily on SAR activities and operated off the Libyan coast, Triton’s resources and operational area are more limited. Frontex Executive director presented TRITON saying:

I would like to underline that operation Triton focuses on border control and surveillance. Having said that saving lives will remain an absolute priority for Frontex.

As the Frontex Consultative Forum (CF) highlighted in their report:

the CF remained concerned about the obvious lack of a responsible and effective EU response in the Mediterranean, and highlighted its concerns regarding the limitations of joint operation ‘Triton’ in the field of search and rescue …

July 28: The Frontex Consultative Forum on Fundamental Rights publishes its first Annual Report, which “provides an overview of the activities undertaken by the Consultative Forum in 2013 in a number of areas jointly agreed with Frontex and its Management Board (strategic planning, joint operations, risk analysis and training).

May 15: the Council and the European Parliament adopts Council Regulation (EU) 656/2014, which establishes new rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by Frontex. It lays down rules for surveillance of the external sea borders during joint operations coordinated by Frontex, including the detection, interception and the disembarkation of persons. It also includes specific rules on search and rescue of distressed vessels and people on board. On paper, this “regulation reinforces the fundamental rights approach to Frontex operational activities”, and it stresses the principle of non-refoulement underpinning all sea operations (Art.4, par. 1), and the potential risks related to disembarkation in a third country:

When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country. (Art.4, par.2)

Major operations: ALEXIS (Air borders, 33 EU Airports), TRITON, REX (Croatia). Continuation of Operations POSEIDON, HERA, HERMES, INDALO, AENEAS and MINERVA.

Returns: Continuation of Operation ATTICA and of ‘collecting joint return operations’. 4 of such operations are carried out: 2 to Georgia, 2 to Albania. In total 45 Joint Return Operations are carried out, and 2271 people are returned.

2013

Personnel: 302 — Budget: €94m

Frontexit Campaign

General: As stated in the already mentioned FIDH/Migreurop report, during Operation POSEIDON 15 reports of incidents of violations of human rights were filed, regarding both the sea and land border.

3 were reported by various guest officers (interpreters, screeners, debriefers, etc.) who directly witnessed violations, including violations of the right to asylum and inhuman and degrading treatment. In the same year, one case concerned the liability of a Frontex Support Officer (FSO) from an EU Member State who is alleged to have struck a migrant. After investigation by the officer’s state of origin, the officer’s deployment was terminated.

Also Amnesty published a report on the situation at the Greek borders, providing further testimonies of human rights violations and especially of individual and collective push-backs within the framework of Frontex operations. Of the 79 people interviewed:

28 described at least 39 separate instances of collective expulsions from Greece to Turkey, which they claimed to have experienced themselves between August 2012 and May 2013. 7 claimed they were pushed back more than once. 26 instances concerned push-backs across the land border with Turkey and 13 concerned push-backs on the Aegean … In response to a query by Amnesty International, Frontex also wrote on 6 June 2013 that since 2012, Frontex Headquarters had received 18 reports of alleged violations of fundamental rights which included “unofficial returns (“push-backs”) involving groups of migrants (up to ten people) or single individuals that had allegedly been returned to Turkey by the Hellenic Police.” Frontex informed Amnesty International that it had raised such allegations with the Greek authorities in writing on three separate occasions and received a response denying that such push-backs had taken place.

Further proof was provided by Pro.Asyl, which estimates that 2,000 people have been illegally pushed back in 2013. Aside from a few exceptions, all the push-backs documented in Pro.Asyl report have taken place within the operational area of Frontex.

December 9: Frontex publishes a Code of Conduct for Joint Return Operations. The document sets out common principles and procedures for joint return operations coordinated by Frontex and is aimed to ensure that the process of returning people on joint return flights “is governed by strict procedures to ensure full respect for fundamental rights and the safety of returnees and other participants”.

December 2: EUROSUR is officially operative in 18 EU member states plus Norway. “It establishes a common framework for the exchange of information and the cooperation between the EU Member States and Frontex: it consists of national hubs connected through a secure communication network and merged by Frontex’s Fusion Services in a ‘system of systems’. Its all-in-one mandate is to support the Member States in reaching full situational awareness at their external borders and to increase their reaction capability in contrasting irregular immigration.” EUROSUR is regulated by the EC Regulation 1052/2013.

November 12: The EU Ombudsman closes their inquiry, but only partially accepts Frontex’s reply. The Ombudsman is satisfied with Frontex’s response regarding the request for clarification over its “Fundamental Rights Strategy, Action Plan, Codes of Conduct, termination/suspension of operations, and the Consultative Forum”. Nonetheless, Frontex refused “to take on board the Ombudsman’s recommendation that the Fundamental Rights Officer should consider dealing with complaints on infringements of fundamental rights in all Frontex’s activities.” Frontex’s reasoning is — still — the fact that the agency is only coordinating said activities and all responsibilities in terms of respect of laws and human rights should fall on member states. The Ombudsman has published a special report to the European Parliament regarding Frontex refusals:

A key element in the position being adopted by Frontex is that individual incidents, which become the subject of complaint, are ultimately the responsibility of the particular Member State on whose territory the incident occurred. The Ombudsman does not accept that Frontex does not carry responsibility for the actions of staff operating under the Frontex banner. That responsibility may sometimes be shared with the individual Member State, but it is not tenable that Frontex has no responsibility and that, thus, it should not deal with complaints arising from actions in which it is involved.

November 6: Council Regulations 1051/2013 and 1053/2013 come into force. Together they are known as the Schengen governance package. It is the firs major amendment to the 2006 Schengen Borders Code. It shifts further the balance of power between member states and the EU Commission towards the latter, increasing the Commission’s monitoring and evaluating power on the efficiency of external border activities carried out by member states. This Schengen Evaluation Mechanism is based on Frontex’s risk analysis reports (1053/2013). More common rules on the temporary reimposition of Schengen’s internal border control are provided in 1051/2013, which “demands more justification for internal borders to be re-imposed [and] explicitly says that a re-imposition is only a last resort solution in a critical situation”, while also defining a new reason for the EU Commission to recommend a re-introduction of internal borders checks:

In exceptional circumstances where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control as referred to in Article 19a, and insofar as those circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, border control at internal borders may be reintroduced (Art.26, par.1 of the consolidated Border Code)

October: According to testimonies collected by FIDH/Migreurop delegation, concerning two separate incidents of push-backs, “some coastguards on board were speaking German and Italian, which seems to indicate that Frontex was present. However, the witnesses could not see what was happening, as the operation took place at night and they were forced by the coastguards to keep their heads down and look down at the deck. This evidence tends to suggest that push-backs may have taken place during deployment of a Frontex patrol.” According to the agency and the Greek Ministry of the Merchant Navy, Frontex agents and guest officers from Member States do not board the ships of Greek coastguards. However, within the scope of the Poseidon joint operation, the agency can patrol at sea on board a craft loaned by a Member State, in the presence of one or more Greek coastguards.

June 27: Frontex responds to the European Ombudsman

April 25: PACE’s session on ‘Frontex: human rights responsibilities’ adopts the Resolution 1932 (2013), which calls on Frontex:

to make use of the power of suspending operation in case of human rights violations by developing “clear risk indicators and objective early warning criteria”;

to guarantee the rights of all people returned in operations coordinated by the agency

to recognise “its responsibility as owner or co-owner of the projects it co-ordinates and implements”

April 9: Recommendations to Frontex by the EU Ombudsman in its inquiry opened on March 6, 2012. They include a request for clarification on “whether [Frontex] considers itself responsible for fundamental rights breaches within its activities and, if so, under which terms” and on “legal framework applicable to the conduct of all participants in Frontex operations”. The Ombudsman also found that:

Frontex had no mechanism in place by which it could deal with individual incidents of breaches of fundamental rights alleged to have occurred in the course of its work. The Ombudsman saw the lack of an internal complaints mechanism as a significant gap in Frontex’s arrangements. On the one hand, the lack of such a mechanism meant that Frontex would be less aware of concerns or complaints about the manner in which it operated; and, on the other hand, people with complaints did not have the opportunity to have their complaints dealt with directly by Frontex.

April 8: A report prepared by the Committee on Migration, Refugees and Displaced Persons for the session on ‘Frontex: human rights responsibilities’ of PACE (Parliamentary Assembly of the Council of Europe) observed that:

Frontex expressed reservations and resistance to the implementation of an effective complaints mechanism;

Frontex claims to only co-ordinate and facilitates member states operations are “a shortcut and would not stand up under a Court’s assessment”;

it is necessary for Frontex to establish a complaints mechanism for persons affected by Frontex’s activities.

March: The Frontexit campaign is launched by 19 associations and individuals from the north and the south of the Mediterranean. The campaign aims to “inform a broad public about the drift in Frontex’s operations in terms of Human Rights, and to expose these abuses to the political representatives directly involved”. More concretely, it asks for:

- Transparency on the mandates, responsibilities and actions of Frontex; - The suspension of agency activities identified as contrary to Human Rights; - The annulment of the regulation creating Frontex, if it is shown that the mandate of the agency is incompatible with respect for fundamental rights.

Major Joint Operations: Operation REX 2013 (Serbia external land border — Hungary-Serbia and Romania). Continuation of Operations POSEIDON, JUPITER, NEPTUNE, HERMES, HERA, INDALO, MINERVA, AENEAS.

Returns: 39 Joint Return Operations were carried out in 2013. 2,152 people were returned.