Frontex aircraft: Below the radar against international law

For three years, Frontex has been chartering small aircraft for the surveillance of the EU’s external borders. First Italy was thus supported, then Croatia followed. Frontex keeps the planes details secret, and the companies also switch off the transponders for position display during operations.

The European Commission does not want to make public which private surveillance planes Frontex uses in the Mediterranean. In the non-public answer to a parliamentary question, the EU border agency writes that the information on the aircraft is „commercially confidential“ as it contains „personal data and sensitive operational information“.

Frontex offers EU member states the option of monitoring their external borders using aircraft. For this „Frontex Aerial Surveillance Service“ (FASS), Frontex charters twin-engined airplanes from European companies. Italy first made use of the service in 2017, followed a year later by Croatia. In 2018, Frontex carried out at least 1,800 flight hours under the FASS, no figures are yet available for 2019.

Air service to be supplemented with drones

The Frontex FASS (EFCA).

The FASS flights are carried out under the umbrella of „Multipurpose Aerial Surveillance“, which includes satellite surveillance as well as drones. Before the end of this year, the border agency plans to station large drones in the Mediterranean for up to four years. The situation pictures of the European Union’s „pre-frontier area“ are fed into the surveillance system EUROSUR, whose headquarter is located at Frontex in Warsaw. The national EUROSUR contact points, for example in Spain, Portugal and Italy, also receive this information.

In addition to private charter planes, Frontex also uses aircraft and helicopters provided by EU Member States, in the central Mediterranean via the „Themis“ mission. The EU Commission also keeps the call signs of the state aircraft operating there secret. They would be considered „sensitive operational information“ and could not be disclosed to MEPs.

Previously, the FOIA platform „Frag den Staat“ („Ask the State“) had also tried to find out details about the sea and air capacities of the member states in „Themis“. Frontex refused to provide any information on this matter. „Frag den Staat“ lost a case against Frontex before the European Court of Justice and is now to pay 23,700 Euros to the agency for legal fees.

Real-time tracking with FlightAware

The confidentiality of Frontex comes as a surprise, because companies that monitor the Mediterranean for the agency are known through a tender. Frontex has signed framework contracts with the Spanish arms group Indra as well as the charter companies CAE Aviation (Canada), Diamond-Executive Aviation (Great Britain) and EASP Air (Netherlands). Frontex is spending up to 14.5 million euros each on the contracts.

Finally, online service providers such as FlightAware can also be used to draw conclusions about which private and state airplanes are flying for Frontex in the Mediterranean. For real-time positioning, the providers use data from ADS-B transponders, which all larger aircraft must have installed. A worldwide community of non-commercial trackers receives this geodata and feeds it into the Internet. In this way, for example, Italian journalist Sergio Scandura documents practically all movements of Frontex aerial assets in the central Mediterranean.

„Tasty“ before flying for Frontex without radar or sensors (James from Cheltenham, Gloucestershire, CC BY-SA 2.0).

Among the aircraft tracked this way are the twin-engined „DA-42“, „DA-62“ and „Beech 350“ of Diamond-Executive Aviation, which patrol the Mediterranean Sea on behalf of Frontex as „Osprey1“, „Osprey3“ and „Tasty“, in former times also „Osprey2“  and „Eagle1“. They are all operated by Diamond-Executive Aviation and take off and land at airports in Malta and Sicily.

„Push-backs“ become „pull-backs“

In accordance with the Geneva Convention on Refugees, the EU Border Agency may not return people to states where they are at risk of torture or other serious human rights violations. Libya is not a safe haven; this assessment has been reiterated on several occasions by the United Nations Commissioner for Refugees, among others.

Because these „push-backs“ are prohibited, Frontex has since 2017 been helping with so-called „pull-backs“ by bringing refugees back to Libya by the Libyan coast guard rather than by EU units. With the „Multipurpose Aerial Surveillance“, Frontex is de facto conducting air reconnaissance for Libya. By November 2019, the EU border agency had notified Libyan authorities about refugee boats on the high seas in at least 42 cases.

Many international law experts consider this practice illegal. Since Libya would not be able to track down the refugees without the help of Frontex, the agency must take responsibility for the refoulements. The lawyers Omer Shatz and Juan Branco therefore want to sue responsibles of the European Union before the International Criminal Court in The Hague.

Frontex watches refugees drown

This is probably the reason why Frontex disguises the exact location of its air surveillance. Private maritime rescue organisations have repeatedly pointed out that Frontex aircrafts occasionally switch off their transponders so that they cannot be tracked via ADS-B. In the answer now available, this is confirmed by the EU Commission. According to this, the visibility of the aircraft would disclose „sensitive operational information“ and, in combination with other kinds of information, „undermine“ the operational objectives.

The German Ministry of the Interior had already made similar comments on the Federal Police’s assets in Frontex missions, according to which „general tracking“ of their routes in real time would „endanger the success of the mission“.

However, Frontex claims it did not issue instructions to online service providers to block the real-time position display of its planes, as journalist Scandura described. Nonetheless, the existing concealment of the operations only allows the conclusion that Frontex does not want to be controlled when the deployed aircraft watch refugees drown and Italy and Malta, as neighbouring EU member states, do not provide any assistance.

Image: DEA aircrafts Osprey1 and Osprey3.

Autor: Matthias Monroy

Knowledge worker, activist, editor of the German civil rights journal Bürgerrechte & Polizei/CILIP.