The EU Border Agency’s air surveillance could have triggered unlawful deportations at external borders. Such operations took place off Libya and Bosnia-Herzegovina.

For two years now, the Frontex Border Agency has been offering EU Member States the possibility of airborne monitoring of their external borders. The flights of this “Multipurpose Aerial Surveillance” (MAS) are part of the surveillance system EUROSUR, with which Frontex monitors all external borders of the European Union and its “pre-frontier area”. EUROSUR provides so called Fusion Services, including satellite reconnaissance and drone flights.

Frontex installed the manned air surveillance service in the summer of 2017. The agency therefore commissioned a charter company in an operating agreement to fly a twin-engine aircraft of the type “Diamond DA-42” . Their recorded video data will be transmitted in real time to the Frontex headquarters in Warsaw. Several national EUROSUR contact points, including in Spain, Portugal and Italy, can also receive the live images.

Pull backs in Libya

Aerial reconnaissance is intended to help against irregular immigration and cross-border crime. This also includes fisheries surveillance. Schengen-associated countries such as Iceland, Switzerland or Norway as well as other EU agencies can also request the services. Frontex passes on relevant information to the EU Fisheries Agency, for example, in accordance with an agreement. Italy was the first Member State to order MAS flights two years ago. Patrols over the central Mediterranean have since taken place from Lampedusa in Sicily. According to Frontex, 4,924 migrants were discovered last year and reported to the relevant authorities.

During border surveillance, Frontex sometimes sees boats in distress. The agency then informs a maritime rescue centre, which coordinates the rescue. The Libyan coastguard has been responsible for the southern part of the central Mediterranean since two years. Human rights organisations accuse Frontex, that the cooperation with Libya is leading to unlawful deportations (so-called push backs) contrary to international law and the principle of non-refoulment. People must not be taken to states where they are threatened with torture or other serious human rights violations. Most recently the United Nations High Commissioner for Refugees renewed his assessment at the beginning of September that Libya is not a safe haven and that no refugees may be disembarked there.

Frontex does not bring refugees back to Libya itself, but leaves it to the coastguard there. However, this is aiding and abetting and thus a so-called “pull-back”, which in the opinion of international law experts is also prohibited. Frontex or the EU military mission EUNAVFORMED in the Mediterranean have “superior knowledge” with air surveillance, without which the Libyan coastguard could not even take action. The European Union and its member states must therefore be held accountable for the actions of the Libyan coastguard.

„Follow-up actions“ after MAS flights

A year ago, Frontex expanded its air surveillance service. The new areas of operation now include countries in the Western Balkans, the Aegean Sea, the Black Sea and the Atlantic Ocean. Most flights are performed with manned systems, only in Portugal Frontex carries out the MAS with a drone. For the first time, the EU’s external land borders were monitored in Croatia. Since 18 July 2018, Frontex has been observing the border area with Bosnia-Herzegovina in cooperation with the Croatian Ministry of the Interior. The flights took off from Zadar airport. Croatia has sent liaison officers to Warsaw, and together with the experts from the “European Monitoring Team” at Frontex, “follow-up actions” are being initiated after the real-time videos have been evaluated.

According to the Frontex annual report for 2018, 46 sightings of 635 irregular migrants apparently attempting to cross the Bosnian-Croatian border were detected by MAS flights over the last year. Mostly small groups were spotted, with Frontex citing an incident involving 89 people as the “single biggest detection”. The Croatian authorities had been “swiftly notified of the detection”. This was followed by an immediate “operational response on the ground”.

Push backs in Croatia

Frontex praises the real-time monitoring with the MAS flights as “high added value” and writes that in 2018 more than 1,800 flight hours were carried out. These had not only contributed to the detection of irregular migration, but had also triggered criminal prosecution measures.
In this way, the EU Border Agency may also have contributed to illegal push backs by the Croatian border police, about which refugees and aid organisations have reported several times. Without the possibility of applying for asylum, migrants are sent back to Bosnia-Herzegovina by force across the border.

In December 2018 the German TV ARD had published recordings of such push backs. The Croatian police brought 368 people to Bosnia, treating them with batons, pepper spray and dogs. The project “Border Violence Monitoring” regularly provides further evidence of illegal refoulements on the Internet. Frontex also receives reports from officials of its missions about possible violations of human rights. These “Serious Incidents Reports” also contain cases at the Croatian EU external border. They are investigated by the Agency’s Commissioner for Fundamental Rights.

How can Frontex be prosecuted in court?

If the Frontex services actually triggered the illegal deportations, it is unclear how the agency can be held accountable. In normal Frontex missions, where one host state is in charge, a large proportion of the personnel and equipment comes from other EU Member States. The current Frontex Regulation stipulates that in such cases the sending EU Member States should take disciplinary action for violations committed by their police officers.

However, the MAS flights are not joint action with seconded officers. Instead, they are measures commissioned by the Agency in Warsaw from a charter company. Frontex is therefore also responsible under civil and criminal law for offences committed there.

But Frontex officials, as EU officials, benefit from diplomatic privileges and immunities. This is regulated in a seat agreement that the agency has concluded with the government in Poland. All members of Frontex are therefore largely exempt from national jurisdiction for acts carried out in an official role.

European Convention on Human Rights without the EU

Even the Human Rights Court in Strasbourg, where people affected can file complaints for human rights violations, is of no help. The European Union has not become a member of the Council of Europe, despite the request in the Lisbon Treaty, and is therefore not subject to the jurisdiction of the European Convention on Human Rights. This also applies to its agencies.

Frontex can be sued for its actions before the European Court of Justice in Luxembourg, which grants legal protection against actions attributable to an EU agency. However, the individuals concerned need to bring their cases there through national court proceedings. This leaves the unlikely possibility that the Croatian judiciary will take action against Frontex. For this to happen, however, there would first have to be investigations into the push backs against their own border authorities.

Image: Multipurpose Aerial Surveillance in Lampedusa (all rights reserved Frontex).