From Frontex to the European Border and Coast Guard: Responsibility for Human Rights Violations

From Frontex to the European Border and Coast Guard: Responsibility for human rights violations at the borders

Mariana Gkliati, PhD candidate Leiden University, Refugee Law Initiative Doctoral Affiliate, University of London
Lecture, 13.12.2016, Senate House, London

Frontex screening officer:

'The most challenging part for me was what I talked about earlier. Well, it was so bad that my thoughts went to the dark sides of our European history. I began to reflect over – these are very personal thoughts – but I thought about those who were participating under Nazism, who were involved, were they thinking the same as I am now? Did they try to find a way to justify it? Did they understand that what they were doing was wrong? Is it wrong? Should we be involved in this? Should we not be involved? I have a very large apparatus guarding my back, which in a way supports me that this is good, but then you see, at least I see, that nothing happens. What’s the point? Many such things. This part has been a challenge and we talked a fair amount about it down there, not exactly with the same perspective, but about whether it was right for us to be involved. Are we contributing to something good or are we just helping Greece to do something wrong? /.../ I hope that my children and grandchildren can look back on what their father and grandfather did as something that was right, that he did something good; that this will not be a shadow in European history that I have contributed to. I really hope so.'

(Aas K. Gundhus H., Policing Humanitarian Borderlands: Frontex, Human Rights and the Precariousness of Life, British Journal of Criminology 2015 vol: 55 (1) pp: 1-18)

Today I am going to talk about the responsibility of Frontex and that new agency, the European Border and Coast Guard, for human rights violations at the borders.Before that I wish to walk you through the origins, the powers and the development of the agency. And first of all quite practically, the UK and Ireland have a particular relationship with the agency and Schengen as a whole. They do not take part in the adoption of the relevant Regulations and they are not bound by them, but they have played an active and supportive role in the agency’s operations. It is believed that this relationship is very possible to continue in the future even in the case that the UK leaves the EU.

Talking about Frontex, one can’t fail to mention that the harmonisation of internal and external border management is one of the most vital aspects of the European integration process. An essential element for this is the cross-border cooperation, which has been defined as ‘a more or less institutionalised collaboration between contiguous subnational authorities across national borders’.[1]Frontex has become the symbolism of this cross-border cooperation, essentially embodying in popular imaginary and in the public debate both the cross-border cooperation and the securitisation characterising EU migration policies.

However the real picture is much more complex. So, it’s not just Frontex. One cannot look at the European border agency outside the context of the Schengen aqcui, separate from the restrictive visa policies and the EU Agenda on Migration, which sets as policy goals ‘combatting irregular migration’ and ‘war on smugglers’. And its work can certainly not be seen outside the context of sovereignty and the nation-state or even disregarding the right-wing swing of European politics. And this has to be placed in the broader context of the economic crisis and the objectives of the financial system.
So, I want to start this talk by, perhaps provocatively saying that Frontex is not the big evil. You can see it as part of the problem or as part of the solution, depending on which angle you’re using, but it’s certainly only part of it.

Having said that, with 146 joint surveillance operations since 2005 and a budget of more than 140 million EUR, Frontex, which was recently renamed ‘European Border and Coast Guard Agency’, has become one of the most important actors in border enforcement in Europe.

It currently manages a pool of almost 3,000 border experts seconded by Member States, and a rich pool of technical equipment. Its mandate has also been constantly growing with two amendments of its founding regulation in 2007 and in 2011. Also, last July (2016) the European Parliament approved the Commission’s proposal for a Regulation creating a ‘European Border and Coast Guard’ (EBCG).

The new Regulation makes a marked change in the status and operational role of Frontex, but the basic principles and operational framework of the agency remain greatly unaffected.

Frontex is responsible for managing the operational cooperation among the member states in the surveillance and control of the external borders. The agency organizes, coordinates and co-finances joint surveillance operations at the sea, land and air external borders, as well as joint return operations. It concludes working arrangements with third countries concerning the prevention of movement from sending and transit countries. It also helps member states with capacity building by means of training of national border guards, setting common training standards, and sharing of information and best practices. The whole operation is situated in an environment of research and risk analysis that sets the essential ground for the operation.

Since 2011, the agency has acquired a co-leading role in operations and was given a mandate to collect and process personal data related to irregular migration and trans-border criminal activities, which it can exchange with other states and EU agencies. It also manages EUROSUR, a pan-European surveillance system of the EU’s southern and eastern borders. It has been called the ‘system of systems’, as it employs all currently available infrastructure and resources, including the latest advancements of military technology, satellites, UVA’s, drones…

The new EBCGA, which assumed operations last autumn, is basically the evolution of Frontex with more powers and competences, and resources. The permanent staff of the agency is more than doubled, its budget has increased accordingly.

As far as its powers are concerned, one of the most important development is the enhanced role of the agency with respect to returns. Frontex now has a dedicated Return Office responsible for organizing and coordinating removal operations, and it can now carry out deportations on its own initiative.

Also, the new agency has an increased mandate to cooperate with third countries with respect to the control of their own borders.

A thorny issue in the negotiations, and one that Member States finally accepted with a lot of hesitation, is the power of the agency to initiate operations and implement other appropriate measures not just on its own initiative but even despite the approval of the host Member State. And this point was so difficult that it seems that the EU was delaying the final stages of the negotiations until after the UK referendum, in order to avoid fueling the Brexit campaing.
So, the agency can now identify ‘disproportionate pressure’ at the border and if it judges that the responsible Member State is not able to cope with that pressure, it would intervene and impose measures and the Member State will be required to cooperate for their implementation. The proposal has been watered-down in that the agency will not be able to do so on its own, but upon the proposal of the Commission and the approval of the Council.

A final marked change concerns the introduction of an individual complaints mechanism where individuals can report an alleged human rights abuse. We can say more about this later.

Perhaps we could also take a moment to think about the value of the name-change itself.The choice of the name ‘European Border Guard’ is not something new that came out of the negotiations for the new Regulation, and it is certainly not without meaning. The choice affects issues of balance of power between EU institutions and member states, European integration, and issues of legitimacy.

The project of cross-border cooperation as it was initially conceived in fact concerned a ‘European Border Police’ or a ‘European Border Guard’. This body would be in the centre of an integrated approach in border management. The Commission and the European Parliament then were supporting the idea of this body being vested with full operational powers effectively replacing the national border authorities. But the idea was dismissed for the time being due to the sovereignty concerns of the Member States. The name itself was proven controversial with Member States, including the UK, Finland and Sweden, that expressed reservations about such a fully integrated system of border management.

The name was dropped by the European Council already in 2001 but the Commission did not give up on this plan and pushed it further into the future - a longer-term plan that would result from progressive integration.

Frontex was created instead in 2004 and was given a name that corresponds to frontier extrerieur in French. This has proven a dynamic project. After continuous amendments of its mandate and powers, the Member States felt it was finally time, as it had also been envisioned in the Stockholm Programme, to accept a name that limits the absolute sovereign control over their borders and brings them closer to a fully integrated scheme of border management.

This symbolic gesture towards an ever closer integration, together with the enhancement of the powers of the agency in the new Regulation, make the case for accountability even stronger – and I’ll get to that.

On the other hand, the Regulation, replacing the Frontex Regulation, refers to the European Border and Coast Guard, which consists of the European Border and Coast Guard Agency and of national actors responsible for border control. This blurs the picture even further and adds to the cohesion of responsibility, which characterises joint operations.

We can argue that the name-change as such serves also the purpose of addressing - superficially but nevertheless – what we could call a ‘legitimacy crisis’ of Frontex. Legitimacy meaning, according to Weber, the trust people have in the actions of government. The more the number of deaths rises in the Mediterranean and the more it becomes evident that the refugee crisis is in fact a crisis of EU policies, EU border management becomes the centre of a heated debate where its legitimacy is put into question. As mentioned before, Frontex has become the image of ‘Fortress Europe’ and the agency itself has attracted considerable criticism in the public sphere regarding its practices and the lack of adequate accountability mechanisms. Criticism which becomes more vividly obvious with campaigns, such as Frontexit, Stop Frontex, Lesvos call against Frontex, Ferries not Frontex or Freedom not Frontex to mention but a few. Changing the name and even presenting it as a new agency replacing Frontex can also be seen as a smart communications move. The chosen name itself is not so easy to pronounce either.

However, the replacement of the agency by a new one – or at least the replacement of a Regulation and a name by a new one – are not sufficient to enhance legitimacy. Such formal reforms do not correspond to a change in governance if they are not followed by a change in the underlying accountability mechanisms.

Responsibility

But why am I talking about accountability? For what and for whom?

Before we go any further, it would be useful to clarify some basic terminology. I talk about both legal responsibility and legal accountability. These terms are often confused in literature; they are given several different connotations and they are often falsely used as synonyms.

So, first of all, I focus is on ‘legal responsibility’, as opposed to political or moral. I use ‘responsibility’ in the meaning it has in international law,so basically the principle that says that ‘the breach of an engagement involves an obligation to make reparation’.

And I use the term ‘accountability’ in the sense of 'answering for decisions on how governance is being exercised'. Although, we can identify several forms of accountability, such as administrative, democratic, and social accountability, today I will focus on ‘legal accountability’ meaning answering for breaches of international obligations, before a judicial forum; before courts.

As we saw, Frontex has been granted tasks reaching further than activities of a mere regulatory character. These activities are, by nature, sensitive to fundamental rights violations. Rights that are at particularly high stake, are protection against refoulement and collective expulsions, the right to claim asylum, protection against inhuman and degrading treatment, the right to leave a country, protection of personal data; and protection from discrimination.

When these sensitivities materialize into real violations, the question of who bears responsibility needs to be addressed.
The Member States of course are responsible for upholding their international obligations, be it the Refugee Convention or the EU Charter of Fundamental Rights. Also the agency is bound by international human rights standards and protection obligations towards asylum seekers. The requirement to protect human rights and abide by Union and international law is acknowledged in the 2011 amendment of its founding Regulation, while, the Regulation on Frontex Sea Operations reaffirms the commitment to non-refoulement, respect of human dignity, and human rights.Above all, Frontex, as an agency of the European Union, is bound by the EU Charter, as well as indirectly by the ECHR and the jurisprudence of the European Court of Human Rights (ECtHR).

But things are more complex than that, because the multiplicity of actors involved in a joint operation, coupled with the lack of transparency and a clear legal framework, make the issue of attribution of responsibility a difficult one to solve.

My purpose today is not to divide responsibility ex ante or on a case by case basis between Member States and Frontex, but only to show how the responsibility of Frontex may occur in the context of these operations.

A joint surveillance operation, where multiple actors are involved, gives ample opportunities for blame shifting. And that includes Frontex arguing, as it has been doing since early on, that it is merely the coordinator of the operational cooperation of the member states, it’s actions do not affect individuals, andit cannot be responsible for any possible violations.

The primary responsibility in border control lies of course with the member states. However, there are several arguments that point to the responsibility of Frontex as well.

First of all, I would like to point out that the official position of the agency, that it cannot have any responsibility, is gradually changing, especially since the 2011 amendment of the agency’s founding Regulation, and so is the culture within the agency. Both the EU legislature and Frontex itself are acknowledging some degree of involvement as we can see from some administrative changes that have taken place.

First of all, both Frontex Regulation and the Frontex Sea Operations Regulation mention the human rights obligations that bind the agency.

Also, since 2011, the agency has developed a Fundamental Rights Strategy, where it declares that ‘Member States remain primarily responsible (…)’ and ‘this does not relieve Frontex of its responsibilities as the coordinator and it remains fully accountable for all actions and decisions under its mandate’.

Now the agency also has a Fundamental Rights Officer and a Consultative Forum; it has also drafted Codes of Conduct for the officers participating in all operational activities of the agency with the aim to guarantee respect of the rule of law and fundamental rights.

Most importantly, the new agency will set up an individual complaints procedure. This has been the request of the European Ombudsman when she closed her own initiative inquiry in 2013 on the responsibility of Frontex for fundamental rights violations. In the beginning Frontex had been resisting any such responsibility, so the introduction of the individual complaints mechanism three years later, is an important step forward.
However, this falls remarkably short of the standards of effective legal protection, since as it stands in the Regulation, it is just an internal procedure. When a complaint is sent through, it will be handled by the Frontex Fundamental Rights Officer. She will decide who was responsible for the incident, a Member State or Frontex. If she thinks that a Member State is responsible, she will forward the complaint to that Member State. If she thinks it falls under the obligations of the agency, she will pass it on to the Frontex Exeutive Director who will be responsible for dealing with the claim. There are several inadequacies in this mechanism. First of all, it concerns only the liability of the staff members, the border guards themselves, and not that of the agency. Second, the Executive Director is left with considerable discretion to decide on the responsibility of his own staff, since the Regulation does not identify any specific criteria or procedures, and finally there is no mention of criminal procedures or any involvement of Courts. The Regulation simply says that the Executive Director will be responsible for the appropriate follow-up.