The case against Frontex: Taking the EU's border agency to court

Its soaring budget is the product of an escalating obsession with 'preventing' the arrival of refugees and migrants to Europe.

As detailed in The New Arab, this appears to involve habitual human rights violations in the form of a collective expulsion tactic known as 'pushbacks' - the illegal deportation of people who are crossing a border.

In a letter to Frontex, lawyers of the group Front-Lex and Legal Centre Lesvos state that "in the face of numerous violations of fundamental rights and international protection obligation" Frontex must "immediately suspend or terminate all actions in the Aegean sea". 

The letter was filed in March 2021. They say they will take the case to the European Court of Justice (ECJ) if they do not receive a satisfactory response.

'Evading responsibility'

In the past, Frontex has often pushed responsibility onto other institutions, claiming that they are simply obeying the instructions of national authorities and are not physically present when human rights abuses occur. 

Since 2014, over 20,000 people have drowned in the Mediterranean Sea trying to cross into Europe

When questioned by the European Commission (EC) over allegations of pushbacks in the Aegean Sea, Frontex's executive director Fabrice Leggeri claimed that they have only played a supporting role in the Greek border guard's new policy of "zero arrivals".

Lena Karamanidou is a researcher focusing on migration to Greece. "This is not the first time they've done this discursively; it's a strategy for evading responsibility," she told The New Arab.

Read more: Why Syrian refugees in Turkey urgently need a new EU migration deal

Frontex has opened a working group to investigate allegations against them. While their report admits that "it has not been possible to completely resolve the incidents beyond any reasonable doubt", it nonetheless found itself innocent of all wrongdoing.

One of Front-Lex's leading lawyers, Omer Shatz, does not see hope in the EU's various internal investigations.

"They cleared themselves. You see the videos and you think - this is something people should be in prison for. Yet Frontex is enjoying full impunity," says Shatz. 

Article 46

In Frontex's statute there is only one provision for human rights protection: Article 46. This article instructs that if the executive director of Frontex becomes aware of serious and/or persistent human rights violations occurring at the border, they "shall withdraw funding for any activity" or "suspend or terminate any activity". 

"In legal language, this 'shall' is very important. It means that the director must suspend the actions - it is an imperative, not a suggestion," says Shatz. Leggeri has indicated in communications with the European Parliament that he believes the article is too strict and fears it may have a cooling effect on Frontex's effectiveness. "He is not obliged to amend the law. He is obliged to follow the law," says Shatz.

Frontex has been accused of a collective expulsion tactic known as 'pushbacks' - the illegal deportation of people who are crossing a border

An opening in the Aegean

The Aegean Sea is not the only location where pushbacks have been alleged. Of the 20,000 people who have died attempting to cross the Mediterranean Sea, most drowned in the central Mediterranean - the deadliest migration route in the world.

But locating legal culpability for abuses in the central Mediterranean is difficult. The pushbacks often happen from international waters by Libyan coast guards and armed militias. While some of these groups may be funded by the EU they are clearly legally distinct organisations.

The situation in the Aegean is simpler; there are no international waters due to the close proximity of the Greek islands to the Turkish coast. This means that when the alleged pushbacks happen, they do so in Greek waters, and often with alleged direct oversight of Frontex officials.

The EU-Turkey deal ratified the deportation of Syrian refugees who arrived via the Aegean route to Turkey, which is considered a 'safe third country' despite Ankara's illegal deportations of Syrian refugees back to Syria.

Frontex: The border agency at the heart of Europe's migrant pushback scandal

Now this deal has expired, Greek and Turkish governments use refugees as pawns in the mounting hostility between them. This provides a legal opening; unlike the Libyan coastguard who cooperate with the EU to prevent crossings, the Turkish border guard work against them to regularly publicise alleged misconduct. 

In March, for example, they reported that the Greek coastguard had handcuffed seven people seeking asylum and dumped them in the sea.

Gathering evidence

Uncovering information about Frontex's actions can be challenging. Freedom of Information requests have been returned to journalists with all of the information blanked out, with documents consisting of a large black box.

"Frontex are not only economical with the information that they give out to the public, but also to the European institutions that it is accountable to - like the European Parliament," says migration researcher Karamanidou. 

This is one of the rather disturbing issues in most attempts to address violations of human rights by states; lived experience and testimonies are never enough to prove a case

Legal crackdowns on researchers, journalists and NGOs have made recording abuse as it happens difficult. The Aegean Boat Report has been collecting evidence of movements of people across the Aegean since 2016.

The group collates footage from both Greek and Turkish coast guards, as well as evidence sent in by refugees themselves. This has been dismissed as 'fake news' by the Greek government, which has since 'leaked' unsubstantiated claims to local media that the NGO is funded by the Turkish state.

The practices of illegal and violent pushbacks remain well known amongst refugees and migrants, but these testimonies may not be admissible in court. "This is one of the rather disturbing issues in most attempts to address violations of human rights by states; lived experience and testimonies are never enough to prove a case," says Karamanidou.

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"The very people who experience the violations are very rarely given recognition of their own experiences or justice for what they have been through." 

Hopes for the future

The court case comes as Frontex prepares its first standing force, and received its biggest budget to date in 2021. It is also a time of escalating anti-migrant and anti-refugee rhetoric throughout the continent.

To stress the urgency of the issue, Shatz compares the mortality rate of migrants in 'peacetime' to other mass civilian deaths in conflict zones.

"Seven thousand people died in Bosnia [Srebrenica]. Up to 10,000 Rohingya people have been murdered in Myanmar. And in the Mediterranean we're talking about 20,000 people drowning, in peacetime. There must be a reckoning," says Shatz. "Our legal action is just the beginning".

Keira Dignan is a freelance journalist and librarian based in Athens, Greece. 

Follow her on Twitter: @DignanKeira