Matthias Monroy

The EU Border Agency charters private aircraft to monitor the EU’s external borders. First Italy and Croatia have ordered the flights, now Frontex also flies in the Aegean Sea, above the Black Sea and the Atlantic Ocean. The service will soon be supplemented by large drones.

Five years ago, Frontex installed a new service for the monitoring of the EU’s external borders. For flights of this “Frontex Aerial Surveillance Service” (FASS), the agency charters twin-engine airplanes from European companies. Initially, the private aircraft were deployed on EU missions in the maritime “pre-frontier area” of the European Union. These missions “Poseidon”, “Themis” and “Indalo” are under the leadership of Greece, Italy and Spain. Normally, all planes and helicopters inserted there come from police or border police from the EU Member States.

With the FASS airplanes, Frontex for the first time used their own assets, which is possible after a change of the Frontex regulation in 2016. Since 2017, Frontex offers the FASS service in bilateral agreements to EU Member States. Their operational differs from a regular Frontex mission, the agency sends the chartered surveillance flights in the central Mediterranean also to the Libyan Sea rescue zone and thus further south than in “Themis”.

Frontex disguises location

For maritime surveillance of the Central Mediterranean, Frontex currently uses the twin-engined machines “DA- 42”, “DA-62” and “Beech 350” of the British company Diamond-Executive Aviation, known as “Osprey1”, “Osprey3”, “Eagle1” and “Tasty”, they take off and land at airports in Malta and Sicily. Last year also flew the aircraft “Osprey2”.

Maritime rescue organisations have repeatedly pointed out that aircraft in the FASS occasionally switch off their transponders so that they cannot be tracked via the ADS-B service. In this way, it is not possible to monitor whether Frontex aircraft are involved in sea rescue cases or not. The EU Commission confirms the digital concealment of the missions. It also does not publish the call signs of state aircraft deployed, which are considered sensitive operational assets.

Besides Diamond Executive Aviation, Frontex has concluded FASS framework contracts with the Spanish armaments group Indra as well as the charter companies CAE Aviation (Canada) and EASP Air (Netherlands), with 14.5 million Euros each.

Information to the so-called Libyan coast guard

When Frontex uses air surveillance to spot boats in distress, the responsible Maritime Rescue Control Centre (MRCC) is informed. Two years ago, the so-called Libyan Coast Guard, supported by the European Union, declared itself responsible for sea rescue in the southern part of the Central Mediterranean with an own coordination centre. By November 2019, Frontex had notified the authorities there of critical incidents on the high seas in at least 42 cases.

De facto, the EU Border Agency is thus taking over aerial reconnaissance for the Tripoli government in Libya. Human rights organisations accuse Frontex that this information is leading to rejections (the so-called “push backs”), which is in violation of international law. According to the Geneva Convention, people must not be taken to states where they are threatened with torture or other serious human rights violations. The United Nations High Commissioner for Refugees regularly renews his assessment that Libya is not a safe haven and no refugees may be disembarked there.

It is true that Frontex does not itself take the refugees in distress discovered from the air back to Libya, but leaves this to the so-called coast guard there. However, this is aid and thus so-called “pull-backs”, which are also prohibited. With its aerial surveillance, Frontex or the EU military mission EUNAVFORMED in the Mediterranean have superior knowledge, without which the so-called Libyan coast guard could not take action.

“High added value” also for illegal deportations?

FASS surveillance of land borders was carried out for the first time with Croatia. In cooperation with the Ministry of the Interior there, Frontex has been monitoring the EU external border with Bosnia and Herzegovina since 18 July 2018. The flights took off from Zadar airport. According to the Frontex annual report for 2018, 635 migrants were identified in this way in 46 sightings throughout 2018, most of them were in small groups. Frontex calls an incident involving 89 people the “single biggest detection”.

The Croatian authorities had been informed immediately about the sightings. Croatia has therefore sent liaison officers to the “European Monitoring Team” in Warsaw. According to Frontex, only the real-time videos had led to an immediate “operational response on the ground”. Thus, the EU Border Agency may have contributed to illegal deportations by the Croatian border police, about which refugees and humanitarian organisations have reported on several occasions.

Information from the FASS flights is fed into the EUROSUR surveillance system, whose headquarters are located at Frontex in Warsaw. The national EUROSUR contact points in other Member States might also benefit from this. Frontex praises the FASS as “high added value” and writes that in 2018 the companies have performed more than 1,800 flight hours. At least 4,924 refugees were discovered and reported to the competent authorities (2017: 1,960), but no figures are yet available for 2019.

Stationing of large drones

It is questionable which courts have jurisdiction to prosecute if it can be proven that it was the FASS flights that initiated “push backs” or “pull backs”. Presumably, it is not the operating charter company that can be prosecuted under civil and criminal law, but Frontex as the commissioning customer. Such proceedings could take place before Polish courts, as Poland is home to the border agency under a “headquarters agreement”.

In any case, refugees cannot bring complaints about human rights violations within the framework of the FASS services before the Human Rights Court in Strasbourg. This is because 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 has now expanded the FASS. Its new operational areas include the Western Balkans, the Aegean, the Black Sea and the Atlantic. Most of the flights are carried out with manned systems, with the exception of Portugal, where Frontex is currently flying a drone. Before the end of this year the Border Agency also wants to station large drones in the Mediterranean for up to four years, after a EU-wide invitation to tender, the supplier is now being selected.

Image: “Osprey3” flying for Frontex.