Europe’s borders

In Mai 2005, Frontex, EU’s joint border agency, started operations. The European Parliament EP has since increased the agency’s budget every year. Frontex’ mandate has been gradually expanded. The agency is the darling of member countries’ home ministers, and it enjoys support in large sections of the EP as well. Human rights activists and refugee organisations, however, have dark thoughts when they hear the name Frontex – it reminds them of refugees in distress at sea, of drowning people and high-tech border control devices.

Frontex is in charge of defending the EU’s external borders. The agency is supposed to coordinate border control among member states. Its officers check whether technology is up to date and support na­tional agencies’ staff training. Additionally, Frontex coordinates collective deportation flights from dif­ferent member states and conducts so called “risk analyses” to trace, forecast and prevent refugee and migrant movements at the external borders of the EU.

When EU members face difficulties and call for Frontex support, the agency sends its Rapid Border Intervention Teams RABITs. These deployment ­forces consist of national officers from different member states. Frontex only has limited personnel, so it normally cooperates with national agencies.

The Frontex budget grew from € 6.2 million in 2005 to a staggering € 90 million in 2009. The members of the EP, however, did not get much information in exchange for such funding. Frontex is not transparent even to them. Most of the money is spent on so-called maritime operations in the Aegean Sea, the central Mediterranean and the Atlantic.


No protection, lots of harassment

For a long time it was true that, wherever Frontex was operating, it only saw irregular “illegal” migration. The member countries and the EP wanted the agency to keep refugee boats not only from ­European shores, but even from European waters. Otherwise, the refugees would be entitled to a formal asylum procedure. Frontex’ life-threatening approach is called “diversion” in the agency’s technical jargon. The public is not briefed on how such diversion is done. No substantial reports are published by the authorities. In 2008 alone, at least 6,000 boat people became victims of diversion. Frontex forces, led by Spain, sent them back to West Africa as if they were human cargo.

It is often hard to tell exactly who is responsible for inhumane behaviour in the context of Frontex operations. When human rights violations occur, the agency’s headquarters in Warsaw tends to point to the national government that led the joint operation, while officers from the countries concerned – Greece, Italy or Spain, for instance – tell journalists and investigators: “Ask Frontex.”

To stop refugees as early as possible, EU member states or Frontex sign agreements with transit countries. Accordingly, the Frontex armada is allowed to operate in the territorial waters of Mauritania and Senegal, for example. In February 2009, Frontex ­Director Ilkka Laitinen told the Financial Times: “When we patrol in international waters or in the territorial waters of third countries, then migrants cannot claim asylum there. This however is often interpreted as a breach of human rights.” To prevent refugees from coming to Europe, Frontex cooperates with partner countries, with no regard for whether the partner government respects human rights or not. In legal terms, Frontex is thus operating in a grey area. That is precisely what Otto Schily, Germany’s home minis­­ter at the time, and his colleagues wanted. In the ­first Frontex regulation of 2004, ­neither respect for ­hu­man rights, nor protection of refugees, nor rescue operations for boat people in distress were even mentioned.

Frontex has been around for more than ­seven years now. In this time, several thousand boat­­ people died on their way to Europe, and more than ­­­­10,000 were­ sent back to transit countries like Libya, Morocco­, Mauritania, Senegal and Turkey see box below. Frontex did not cause this human rights ­disaster itself, but it certainly is an expression of ­Europe’s failed policy on refugees.


Human rights valid at sea

The European Court of Human Rights passed an important judgement on 23 February 2012. It ruled that Italy’s policy of pushing back boat people to Libya was illegal, thus discrediting the cooperation the Berlusconi government had started with Libya’s former dictator Gaddafi. According to the Court, Italy vio­lated the European Convention on Human Rights and in particular the principle of non-refoulement, which prohibits returning refugees and migrants to countries where they may face persecution or inhuman or degrading treatment.

For many victims of Italy’s hard stance on the matter, the judgement was passed too late. They ­suffered abuse, demeaning treatment and torture in Libyan camps from 2009 on. At least one of the refugees who appealed to the Court died when trying to reach Europe once more.

The Court’s decision will nonetheless have far-reaching consequences for European policy. EU member governments must review their border and refugee policies. Otherwise, they will not be able to guarantee, as they must, that they are protecting boat people against refoulement. Whether Frontex is involved or not, is not the core question.

In this context, Frontex was given a new mandate. The new regulation, which came into force in November 2011, emphasises that refugees must be protected. Moreover, Frontex staff is now under order to rescue people from distress at sea. In case of human rights violations which are “of a serious nature or are likely to persist”, according to the new mandate, Frontex operations can be discontinued. In the meantime, Frontex has even appointed a human rights officer, though she is part of the hierarchy and cannot act independently. In September, a consultation forum was established. It includes representatives from the UN Refugee Agency UNHCR, the EU Agency for Fundamental Rights and several non-governmental organisations.


The human rights challenge

So will Frontex finally respect human rights? Unfortunately, there is reason for doubt. Yes, the officers from Warsaw are now well-versed in the legal ­jargon, but the tangible impact on Frontex operations remains to be seen. So far, there is no guarantee there will be no more human rights infringements.

A different scenario seems more likely. Should officers pick up Syrian refugees in the Greek Aegean Sea as part of “Operation Poseidon”, they will probably send them to dismal camps on Greek islands, and we will be told: “It’s the Greeks’ fault.”

The new mandate has actually created new risks because it allows Frontex to negotiate deals with transit countries, implement pilot projects and send liaison officers in these countries. The rules state that the border control procedures of the countries concerned must be in line with “minimum human rights standards”. Such language, however, leaves ample room for interpretation.

Most likely, therefore, the new Frontex mandate basically will lead to implementing anti-refugee measures in transit countries. It would be foolish to expect human rights to become a priority concern of an agency basically in charge of the prevention of ­migration and flight towards Europe.

So far, Frontex has signed agreements with­ many countries, including Russia, Ukraine, Croatia, Moldova, Georgia, Macedonia, Serbia, Albania, Bos­nia/Herzegovina, Montenegro, Belarus, Cape Verde, Nigeria, Armenia and Turkey. Negotiations have been started with Libya, Morocco, Senegal, Mauritania, Egypt, Tunisia, Brazil and Azerbaijan. Nobody, however, is monitoring what exactly Frontex is doing in these countries of transit and origin with the goal of “stemming migration”. There is a serious risk of human rights simply being breached or refugees dying in places that are farther away from our attention.