Guest post by Niamh Keady-Tabbal and Covadonga Bachiller López. Niamh is a Ph.D. researcher in Law at the Irish Centre for Human Rights and recipient of the NUI Dr Peter Sutherland Travelling Studentship in European Studies. Her research focuses on access to asylum and border violence. She has investigated pushbacks at the Greek maritime border and is involved in submissions to the European Court of Human Rights challenging these practices. Covadonga is a Marie Skłodowska-Curie Early-Stage researcher at Teesside University. Her Ph.D. project explores the ground-level realities of border enforcement through an ethnographic study of Frontex. 

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https://twitter.com/Frontex/status/1395789123697397763

In the context of debates surrounding Frontex’ complicit role in human rights violations, EU and Member States’ senior officials started to construct and promote a view of ‘interception’ which distorts the reality of violence in the Aegean. By shifting the focus from the systemic violence to the technicalities of the law and ‘border management’, officials have brought the fundamental protections afforded to migrants under international and EU law into question. 

Meanwhile, tactics of enforcement that directly facilitate violence and violations continue to be routinely performed by Frontex assets in the Aegean. Addressing the European Parliament in December 2020, Frontex Executive Director, Fabrice Leggeri, put forward a particular interpretation of the law governing Frontex’s sea operations, Regulation 656/2014. According to Leggeri, if there are no grounds for a search and rescue operation, national authorities “can order either to apprehend or the suspicious boat could be invited to change its course”. In Leggeri’s view the particular geography of the Aegean landscape, in contrast with the Central Mediterranean, allows certain border enforcement tactics to be used, without violating the law.

A few months earlier, a similar reading of Regulation 656/2014 was invoked by the Romanian authorities in an attempt to explain the - caught on camera - actions of their vessel deployed to Frontex Operation Poseidon in Lesbos. The Romanian vessel was recorded manoeuvring to block a rubber dinghy carrying migrants.  The letter addressed to Frontex Executive Director relies on the UN Convention against transnational crime to explain these actions. According to the Romanian Border Police, the intent of the “watercraft” to circumvent border checks and its involvement in migrant smuggling justifies “ordering the vessel to change its course...including escorting the vessel or steaming nearby until it is confirmed that the vessel is keeping to that given course”. 

Back in 2015, however, institutional discourse did not call into question the seaworthiness of the flimsy boats that people had to resort to in order to reach safety and access to asylum in the Greek shores to this extent. In fact, it was precisely because of its precarity that the overcrowded rubber dinghy became an icon of the ‘refugee crisis’, reflecting the urgency of the needs of people seeking international protection. Conversely, this same danger was also relied on as a basis of legitimacy for the EU-Turkey Statement, a political agreement concluded with the aim of  “stopping the flow of irregular migration” from Turkey to Europe. The Statement was presented as a means “to offer migrants an alternative to putting their lives at risk”. The risk posed by such journeys has long been invoked by wealthy states to justify interceptions (see here, here and here) and denial of access to territory.

Such danger has been acknowledged by Frontex in the past. Commenting on the journeys made by migrants in the Eastern Mediterranean route, Frontex stated: “The distance between the Turkish coast and Greek islands can be as little as 4 nautical miles (7.5 km) as is the case of Chios, or 5.4 nautical miles (10 km) as is the case of Lesbos. While this distance might be short, with unstable weather conditions and overcrowded and unseaworthy boats the death toll is high.” The agency, in earlier years, published photos of its assets rescuing people from “overcrowded rubber boat[s]” off the coast of Greek islands (see for instance here, here and here). 

The suggestion that these same rubber boats can now be turned back or invited to change their course in the middle of the sea reflects a shift in the framing of the nature of the ‘crisis’, the protection needs of those crossing the Aegean, and the legal obligations of Greece and the EU towards them. Following Turkey’s announcement in early 2020 that it would no longer prevent migrants from leaving irregularly, Greece has re-formulated migration ‘flows’ in the Eastern Aegean as a hybrid threat to Greek and EU security. Over a year since the confrontation at the Greek-Turkish border, Turkey’s ‘instrumentalisation’ of migration, as Greek officials refer to it, continues to be relied on to delegitimise the mobility of protection seekers. 

Such efforts to undermine the right to seek asylum in Greece, however, precede Turkey’s recent provocations. Since their election in 2019, Greek government Nea Demokratia have pointed to the changing demographics of asylum seekers arriving on Greek islands (from a Syrian majority to Afghan majority) to advance a view that “this is a migration, not a refugee, issue” despite the high rate of recognition for Afghan claimants in Greece. The depiction of Turkey as a safe third country for asylum seekers to be returned to has been central to this.

The shift in official discourse goes hand in hand with legal interpretations espoused by EU and Member States’ officials, particularly in recent sessions at the European Parliament (see here and here), that hinge the right to seek asylum on whether or not boats are in “distress”, and which neglect the range of human rights afforded to migrants under international and EU law.   

Frontex’s obligations at sea 

But Frontex, like all public bodies, has binding positive obligations towards migrants that apply irrespective of whether or not the boat they travel in is ‘in distress’. One of the most direct sources of these obligations is the EU Charter of Fundamental Rights, which must be interpreted in light of other European regional human rights instruments and the jurisprudence of the European Court of Human Rights (ECtHR), as well as international legal standards. In the context of ‘sea surveillance’, the enforcement measures contained in Regulation 656 and the Schengen Borders Code rely on certain factual conditions, and resorting to such measures, for example, “ordering the vessel to alter its course”, is strictly subject to the EU Charter of Fundamental Rights, and provisions including inter alia, the right to life, the prohibition on torture, inhuman and degrading treatment, the prohibition on collective expulsions and the principle of non-refoulement. According to the Frontex Consultative Forum, the agency’s advisory body on fundamental rights, Article 6 (5) (c) of the Schengen Borders Code “explicitly authorises” Member States to allow entry to migrants where a refusal would violate these obligations. 

In Frontex operational areas, all officers - Frontex staff, deployed officers and, in the case of Greece, the Hellenic Coast Guard - are fully bound by the principle of non-refoulement, which prohibits returning persons to a country where they would be at risk of irreparable harm. Non-refoulement is not only a principle of refugee law, it is central to upholding the human rights of all persons and a core component of the prohibition of torture and cruel, inhuman or degrading treatment or punishment, also enshrined in the EU Charter of Fundamental Rights. In order to uphold this obligation in the context of ‘interceptions’ at sea, decisions to return migrants must be preceded by an individualised assessment of each person on the intercepted vessel. The assessment includes at the very least to identify the persons onboard but also to ensure they will not be subject to direct or ‘chain’ refoulement, if returned (Hirsi Jamaa and Others v Italy). This obligation applies to intercepted migrants irrespective of whether an asylum request has been expressly made and regardless of whether a boat is in distress. Second, according to the EASO and  Frontex Practical Guide on Access to the Asylum Procedure, officers “have a responsibility to be proactive in ensuring effective access to the asylum procedure”. To meet this procedural obligation they have a “duty to identify persons who may wish to apply for international protection, inform them about the right to apply for asylum and provide them with the information on how to make an application”. Failing to ensure these procedural safeguards contravenes Frontex’s own Regulation, which obliges the agency to guarantee the protection of fundamental rights in the performance of its tasks. 

The EU-Turkey Statement’s recognition of Turkey as a “safe third country” does not absolve Frontex of its obligation to guarantee non-refoulement in its operations. In fact, the jurisprudence of the ECtHR has affirmed that in the case of returns to an intermediate country, the removing State has the duty to conduct a thorough examination of whether there is a real risk of the individuals being denied access in the intermediate country to an asylum procedure protecting them against refoulement.    

Procedural obligations to ensure compliance with the principle of non-refoulement and access to asylum are largely absent in Frontex and Member States institutional discourse. Just as Leggeri’s legal interpretation reads border surveillance in isolation from International and EU law, Frontex operations at sea are arranged to circumvent human rights and international protection obligations. 

The Human Rights implications of the ‘early detection’ tactic

The main modus operandi followed by every patrol boat, thermo vision vehicle and surveillance plane deployed in the Aegean Sea is what officers refer to as ‘early detection’. In the Greek context, when Frontex detects a migrant boat, the Greek Liaison Officer onboard the Frontex boat calls the Hellenic Coast Guard to dispatch their own vessel.  Frontex hands over responsibility to the Greek authorities and is “excused from the scene” to patrol elsewhere.

Through repetition – as this sequence is followed in every patrol that encounters a migrant boat – the ‘early detection’ tactic has been crafted, generating a clear division of labour between Frontex and its host, Greece. Frontex operational plans are rather vague when it comes to spelling out tactical and procedural instructions. As a result, they do not provide a firm base for officers’ day-to-day practices. This enables bordering practices to shift according to political decisions, as officers have themselves observed in the last year. 

Despite being considered the core mission, the specificities of this modus operandi are conveniently absent in Frontex Operational Plan Poseidon. As reported by Frontex during a Consultative Forum meeting on 16 October 2020: “the operational plan does not foresee anything in relation to transferring the responsibility of sightseeings at sea to Greek vessels”. Yet, Frontex assets repeatedly hand over responsibility to the Greek authorities and individual officers become quickly habituated to their specific role within the division of labour. 

This inevitably impacts the extent to which Frontex can guarantee fundamental rights during such operations at sea. Official discourse gives the impression that officers are able to conduct an ‘impartial’ and ‘rational’ assessment of the facts of a particular situation to determine whether it is a “distress case”, an “asylum case”, or whether people on the boat have other protection needs. However, the tactic’s design – how it structures day-to-day patrolling – precludes this possibility. First, Frontex deployed officers do not conduct individualised assessments of protection needs and refoulement in the Aegean. Access to asylum in this context is de facto made dependent on being in distress. Second, the process of determining whether or not a boat is in distress is distorted by Frontex’s limited role, which is designed to end once the Hellenic Coast Guard takes over responsibility. The tactic’s design, by deflecting responsibility to the Greek authorities, creates a physical and moral distance between Frontex deployed officers from those on the boat. By doing so, it inhibits what Itamar Mann describes as the “encounter between a powerless individual and a powerful official” and, thus, undermines the transformative potential of this moment, and the conditions that give rise to the possibility for a human rights claim to be heard and addressed.

From conversations one of us had with officers and observation during patrol, it is evident that everyday decision-making in the vessel is structured in a way that disincentivizes any other action than handing the boat over to the Hellenic Coast Guard. Furthermore, these practices clearly follow what one Frontex officer referred to as the “political guidance” which has elevated a forceful prevention of sea crossings as the ultimate - de facto - objective of the joint operation. In the words of Frontex Executive Director, since March 2020, the Greek authorities have opted for the “optimal use of the provisions of interceptions”. 

This is evidenced by the fact that boats of asylum seekers intercepted by Frontex are no longer disembarked in Greek shores and registered. The unwritten division of labour between Frontex and the Hellenic Coast Guard, which is at the core of ‘early detection’, conceals the systematic violence that asylum seekers “detected” by Frontex are ultimately subject to by Greek authorities. In a joint investigation into collective expulsions in the Aegean conducted by one of us, asylum seekers described being taken aboard Greek Coast Guard vessels where they were beaten and robbed of their belongings before being forced into motorless life rafts and abandoned, in many cases, at night. None of those interviewed were provided the opportunity to apply for asylum before they were violently and summarily expelled.  

Yet, despite efforts to compartmentalise the agency’s involvement, this violent abandonment is the end result of a tactic routinely enacted by Frontex to circumvent obligations enshrined in international and EU law. This is reflected in Frontex’s internal reporting system, JORA, with frequent references to migrant boats “detected” by Frontex assets, who are subsequently requested to leave the scene. In a well documented collective expulsion near the island of Samos, challenged before the European Court of Human Rights, the boat of approximately 30 asylum seekers was first “detected” by Frontex deployed assets, as confirmed by German officials. The asylum seekers were then intercepted by Greek officials, forced into two, damaged life rafts and left to drift

On July 15, the Frontex Scrutiny Working Group of the European Parliament’s LIBE Committee presented their long awaited report. While the report acknowledges that Frontex knew about fundamental rights violations and failed to prevent or address them, it does not fully scrutinise the tactical arrangements between Frontex and the Hellenic Coast Guard. The way in which the agency’s daily work is intertwined with national authorities on the ground is, therefore, erased. 

What our research shows is that handing over responsibility to the Hellenic Coast Guard is at the heart of Frontex’s modus operandi in the Aegean. The agency’s activities cannot therefore be separated from the pushback policy reigning at EUrope’s borders, and the severe ill treatment and risk to life migrants are systematically subjected to by the Hellenic Coast Guard. Article 46 of Frontex Regulation 2019/1896 creates an obligation to divest, suspend or terminate operations in the context of “violations of fundamental rights or international protection obli­gations related to the activity concerned that are of a serious nature or are likely to persist”. The way in which the operation in the Aegean is structured on the ground not only precludes Frontex’s ability to fulfil its task to guarantee human rights compliance as per Article 80 of the Regulation, it situates the agency in a position in which it can be considered instrumental to the completion of these illegal practices.

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How to cite this blog post (Harvard style) 

Keady-Tabbal, N. and Bachiller López, C. (2021). Dividing Labour, Evading Responsibility: Frontex-Hellenic Coast Guard’s Modus Operandi in the Aegean. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/07/dividing-labour [date]