WhatsApp to Libya: How Frontex uses a trick to circumvent international law

The EU is not allowed to return refugees to countries where they face persecution. In 2017, the Commission therefore set up a backdoor for refoulement to North Africa. Published text messages now reveal how Frontex is providing aerial reconnaissance for the Libyan coast guard.

Four years ago, Frontex began setting up its aerial surveillance over the central Mediterranean. Under a new regulation from 2016, the European Border Agency is allowed to buy or lease its own equipment. With the change, the EU wanted to respond to the increasing number of people seeking protection at its external borders. Frontex has since invested hundreds of millions of Euros in charter flights with small planes from European companies that monitor the central Mediterranean and the so-called Balkan route with cameras and radar equipment.

For the now increasingly powerful agency, this flight service is of central importance, which is also reflected in the annual expenditure. This year alone, Frontex is spending a third of the budget earmarked for operations on aerial reconnaissance. Meanwhile, Frontex has supplemented its chartered aircraft with a drone with much greater endurance.

All ships withdrawn

OSPREY 1 and OSPREY 3 flying for Frontex from Sicily.

With the development of the aerial service and the end of Operation Triton in 2018, Frontex withdrew its ships from the central Mediterranean. So the agency is no longer directly involved in sea rescue when its aircraft spot a boat with refugees there. Mostly, these boats start in Libya, but in many cases also in Tunisia, more rarely from Egypt.

Through a back door, Frontex ensures that the seekers for international protection do not reach the EU member states, but end up back in North Africa. The border agency increasingly informs Libyan authorities with the order to pick up the people on the high seas and bring them back to Libya.

Frontex claims that this procedure is internationally prescribed and complies with international law. However, this is only half the truth.

When pilots or captains detect a maritime emergency, they must indeed follow a set routine. First, the Maritime Rescue Coordination Centres (MRCC) responsible for the area concerned must be notified. This is stated in the International Convention for the Safety of Life at Sea (SOLAS), which has been in force since the sinking of the Titanic. At the same time, ships in the vicinity are to be informed by radio via the open distress channel 16.

Control centre without functions

Italy used EU funds to support the Libyan coast guard in declaring a sea rescue zone from 2017 (Italian Ministry of Defence).

Until a few years ago, however, Libya did not establish a maritime rescue coordination centre or designate an area where it declared itself responsible for sea rescue. At that time, this task had been taken over by the Italian MRCC in Rome. All persons rescued by Frontex or EU member states in the central Mediterranean were thus brought to Italy or Malta.

So in order for the new Frontex flight service to have its desired effect in countering migration, the EU member states and the EU Commission resorted to a trick. Parallel to the launch of the first surveillance flights, Italian authorities were instructed in 2017 to set up a MRCC in Libya to receive the Frontex calls. The Libyan coast guard was also to be supported in registering a sea rescue zone with the International Maritime Organisation (IMO). The Commission initially spent 44 million Euros on this.

After an initial unsuccessful attempt, the IMO accepted the application from Libya in 2018. Frontex considers the control centre in Tripoli as „internationally recognised and competent“. However, the Libyan MRCC does not meet the mandatory requirements: it is not available day and night, the staff there sometimes do not speak English, and the authorities do not have the necessary ambulances or hospital facilities for a maritime emergency.

It is now also certain that the Libyan MRCC exists on paper at best. This is confirmed by the EU Commission and the Council, both of which do not know where the maritime emergency centre financed by them is located at all. In February of this year, the German government also said that it was „not a fully functioning authority“.

New attempt with containers

So the fact that Frontex nevertheless commissions the Libyan MRCC to „rescue“ sighted boats is a trick. However, according to a 2012 ruling by the European Court of Human Rights (the so-called „Hirsi case“), this is against international law. Refugees may not be returned to countries from which they have fled and where they are threatened with persecution. Libya is undoubtedly one of them, the country has no asylum system, protection seekers are crammed into overcrowded camps by militias, mistreated and murdered. A documentary by the Italian filmmaker Sara Creta recently confirmed this.

Following the Hirsi ruling of the Human Rights Court, the EU has also enshrined the duty to rescue at sea in its own legal text. According to the 2014 Regulation for the surveillance of the external sea borders, Frontex or a member state participating in a Frontex operation must provide assistance to any vessel or person in distress at sea without regard to the nationality or status of such person, in accordance with international law and with respect for fundamental rights.

Frontex is therefore not allowed to return refugees to Libya. It makes little difference whether Frontex carries out such pushbacks itself or commissions the Libyan coast guard to do so (as so-called pullbacks). The Geneva Refugee Convention also prohibits such refoulments. Article 18 of the EU Charter of Fundamental Rights furthermore stipulates the right to claim asylum.

Notwithstanding this, the EU Commission is even extending its support for Libya. The MRCC allegedly set up in Tripoli is described in the answer to a parliamentary question as „very basic“, so the Italian Ministry of the Interior is spending another 15 million euros on its expansion. According to this, it will be „initially hosted in containers“, which can then be moved along the entire coast.

Direct contact with the coast guard

Excerpt from the WhatsApp exchange with the Libyan Coast Guard (Frontex via FragdenStaat).

Apparently, the „very basic“ MRCC in Libya is also difficult to reach for Frontex aerial surveillance. The agency has therefore established a short line to the coast guard there. In several cases, members of the militias were informed via WhatsApp when a Frontex aircraft spotted refugees on the high seas on their way to the EU.

SPIEGEL first reported on this and confronted Frontex head Fabrice Leggeri. According to the magazine, it has screenshots of the incident. A captain had even been sent a photo of a refugee boat taken by a Frontex aircraft. This direct contact is a clear violation of European law, SPIEGEL quotes Nora Markard, a German expert on international and constitutional law.

„Frontex has never cooperated directly with the Libyan coast guard,“ Leggeri lied about this in March to a special committee investigating violations of international law by the border agency in the European Parliament. Confronted with the screenshots by SPIEGEL, Frontex no longer explicitly denied direct contact with the coast guard. However, according to a spokesperson, it was an „emergency communication“ and thus not a formal contact.

However, excerpts from the WhatsApp communication in question, which Frontex has now had to release following a freedom of information request, draw a different picture. According to these, the coast guard there exchanged information with the border agency on at least ten days about possible boats on their way to the EU. For example, on 31 May of this year, a Libyan captain asked via the messenger service „Do you have anything about migrants who need help?“. A response from Frontex is not documented, perhaps it was via a phone call.

Coordination by Frontex plane

Even more questionable, however, is the case of 27 May, in which the parties involved coordinated over a longer period of time about a total of four sighted boats. On the part of the Libyan coast guard, it seems to have been the patrol vessel „Ras Al Jadr“, which is abbreviated as „ras“ several times in the communication.

Like many other coast guard vessels in Libya, the „Ras Al Jadr“ is operated by militias whose members are notorious for their brutality (for this reason, many organisations write the word „coast guard“ in inverted commas in connection with Libya). Probably their best-known operation took place at the start of the Frontex flights in 2017, during which at least 20 people drowned. In addition, the crew has repeatedly shot at sea rescuers, most recently documented for 30 June this year.

Investigations show that the „Ras Al Jadr“ was actually operating in the central Mediterranean on 27 May 2021 and was taking the occupants of at least one boat back to Libya. The „Zawiya“, another Libyan Coast Guard vessel based in Tripolis, was also on two missions and brought 194 refugees back to Tripoli, according to the United Nations refugee agency (the IOM, meanwhile, speaks of 185 people). According to the WhatsApp chat, 60 more could have been on the „Ras Al Jadr“, other EU sources speak of 100 people.

A Frontex aircraft flew two missions off Libya on 27 May (ADB-S Exchange).

Apparently, the instruction for the pullback to the „Ras Al Jadr“ issued on 27 May came from Frontex air surveillance. Historical transponder data shows that one of the Frontex aircraft had departed from Malta on two missions off the Libyan coast on the day in question. The WhatsApp chat also points to close cooperation with Frontex. According to this, the parties involved exchanged the position of the boat in question and the Libyan coast guard ship multiple times.

Incomplete coordinates

Sometimes such information is no longer passed on completely to all ships in the vicinity via emergency channel 16, but only partially. This may involve cases where Frontex considers the lives on the boats to be „not in immediate danger“ at its own discretion, according to an answer to a parliamentary question to the agency.

This questionable practice is confirmed by members of the private sea rescue organisation Sea-Watch, which itself monitors the central Mediterranean with aircraft. According to this, Frontex in some cases only gives indications of the distance and direction of a boat from the Libyan coast guard units. Without further coordinates, this cannot be understood by any other vessel in the vicinity.

The EU Border Agency de facto provides aerial reconnaissance for the Libyan coast guard. This close cooperation not only ensures that thousands of people are returned to camps where they await mistreatment, torture and death. By keeping the coordinates of a maritime emergency secret from rescue organisations, and instead giving it to brutal militias, Frontex is directly responsible when people drown in the Mediterranean.

Update from 12 October: With a day’s delay, Frontex has responded to the request for comment. In it, a spokesperson confirms that „in an emergency, where lives are at stake“ information about the whereabouts of boats will be shared in any way possible to the people involved in the rescue operation“. This includes emails, phone calls or „messages“. Frontex denies, however, that it has ever cooperated with the Libyan coast guard or coordinated rescue operations. The MRCC, which the German government describes as „still very rudimentary“, is also notified by Frontex of any emergency case in Libya’s SAR zone.

Image: The Libyan patrol boat „Ras Al Jadr“ during its deadly mission on 6 November 2017, the same year Frontex launched its questionable cooperation under the new air service with Libya (Sea-Watch).

Autor: Matthias Monroy

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