frontex: refugee protection and human rights in practice · • un working group on the smuggling...
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Frontex: refugee protection and human rights in practice
Katja Franko Aas
Lampedusa, the right to life in the EU
Frontex: EU external border control agency
• Established in October 2004 (E. Council Regulation No 2007/2004), operational in October 2005;
• Budget : 2012 – 85 mill EUR; permanent staff ca 300.
• Management of the external borders, but not overall responsibility
• Tasks:
– Joint border operations (European Border Guard Teams)
– Training of border guards (common training standards)
– Intelligence gathering and risk analysis
– Research and development (EUROSUR, ABC)
– Technical and operational assistance (CRATE, RABITs)
– Internaional cooperation and coordination (coordination of return flights)
EU POLICY FOR INTEGRATED BORDER MANAGEMENT
NORWAY NORWAY
SWEDEN SWEDEN
FINLAND FINLAND
DENMARK DENMARK
POLAND GERMANY GERMANY
HOLLAND HOLLAND
UNITED KINGDOM
IRELAND
NORTH. IRELAND
BELGIUM BELGIUM
FRANCE FRANCE
LUXEMBOURG LUXEMBOURG
CZECH. REP.
AUSTRIA AUSTRIA
SLOVAK REP . .
SWITZERLAND SWITZERLAND
SLOVENIA
CROATIA CROATIA
BOSNIA - BOSNIA -
HERCEGOVINA HERZEGOVINA
ITALY ITALY JUGOSLAVIA
Serbia
Montenegro
HUNGARY
MACEDONIA FYROM
ALBANIA ALBANIA
ROMANIA
GREECE GREECE TURKEY
UKRAINE UKRAINE
MOLDAVIA MOLDAVIA
BELO BELO
RUSSIA RUSSIA
RUSSIA RUSSIA
RUSSIA RUSSIA
LITHUANIA
LATVIA
ESTONIA
SPAIN SPAIN
PORTUGAL PORTUGAL
CYPRUS MALTA
COMMON RISK
ANALYSIS
MANAGEMENT
BY FRONTEX
BURDEN SHARING
- Community funding*
JOINT
OPERATIONS
COMMON
LEGISLATION*
TRAINING
AND
PROFESSIONALISM
COMPATIBLE
EQUIPMENT
BULGARIA
Data design
• At present, 26 transcribed interviews, 2 field visits to Warsaw • Currently expanding interviews to the Frontex expert pool • In total ca. 50 interviews
1. National Criminal Investigation Service (KRIPOS) - Frontex national contact point (12)
2. Police Directorate, International Section and Immigration project (12)
3. Ministry of Justice and Public Security (2) 4. Norwegian National Police Immigration Service, Frontex (7) 5. Frontex personnel in Warszaw (5) 6. Norwegian Police University College, Frontex training and education
unit (3) 7. Oslo Police District 3 cases:
1. Management (2) 2. Police cooperation Romania (7) 3. Vest-African networks
4. Lithuania networks
Norwegian participation in operations • 35 officers in the Frontex pool
• Screeners (interviews about travel routes)
• Debriefers (in depth interviews about smugglers, etc)
• Not wearing weapons and not patroling the green line.
• Frontex Risk Analysis Unit in Norway
• Eurosur surveillance system
Photo: Lars Andreas Lindstøl
‘Humanity, open communication, professionalism,
trustworthiness, teamwork’
Quick Guide to the Code of Conduct:
Do:
•Know and respect the law
•Inform those in need of international protection about their rights and relevant procedures
•Respect human dignity at all times and be sensitive to cultural differences
•Pay particular attention to the need of vulnerable persons
•Uphold the highest ethical standards
•Act fairly and impartially at all times
•Report all violations of the law and the Frontex’ guide to behavior…
Human rights challenges at the border(1)
• The right to life (Art 2 EU Charter of Fundamental Rights and art 2 ECHR)
• Aftenposten (31.3.2014): 23.000 people dead since 2000 (The Migrant Files)
• Militarization of European borders and of the ’outsourcing’ of European asylum rights (Gammeltoft-Hansen, 2009)
• ‘Pre-arrival border controls’ built on the ‘presupposition of illegality’ (Carrera, 2007) – not treating individual cases but risk categories
• Push-backs and the right to not be sent back to torture, persecution and inhuman treatment (non-refoulement)
• ECtHR, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09 • Recommendation to revise Schengen Borders Code: EU member
States and Frontex have responsibilities that go beyond border surveillance in relation to search and rescue activities and other interceptions at sea (Council of Europe, Committee on Migration, Refugees and Displaced Persons 2013).
FRA Report 2013: right to life
“When the EU and its Member States provide assets, equipment and other maritime border management facilities to neighbouring third countries, priority should be given to assets and equipment that can be used to enhance their search and rescue capacities.
EU Member States should not punish for facilitation of irregular entry any private shipmaster who takes on board or provides other assistance to migrants in unseaworthy and overcrowded boats. The European Commission could consider stipulating this in a possible future review of the Facilitation Directive.” (p. 10)
Critique of search and rescue (SAR) • UN Working Group on the Smuggling of Migrants stated in
June 2012 that:
• “State parties [to the UN Protocol against the Smuggling of Migrants by Land, Sea and Air] should prioritize the preservation of life and safety upon detection of a vessel used to smuggle migrants”.
• In presentation for by EP Parliament’s LIBE Committee Operations (Civil Liberties, Justice and Home Affairs) Frontex agree that push back is forbidden
• Doc 13161 concludes to revise Schengen Borders Code to take into account the fact that EU member States and Frontex have responsibilities that go beyond border surveillance, in particular in relation to non-refoulement,
search and rescue activities and other interceptions at sea
Example «push back» (doc 13161)
• 26. Another serious issue is that of non-assistance to persons in danger. The most recent alleged case concerns a Frontex airplane which reportedly crossed a migrant boat in distress in October 2012 without assisting or initiating a SAR operation. At least 56 people died in this incident. If these allegations were to be true, such a situation is unacceptable. Frontex has to ensure that its staff or deployed officers inform without delay the competent authorities and that the necessary follow-up steps to initiate a SAR operation are taken.
Total Intercepted in African Coast and diverted during HERA II Operational Phase – 3887 illegal immigrants (57 cayucos or pateras) till 15/12/2006.
This means that these people were stopped from setting off for a dangerous journey that might have cost their lives.
Source: http://www.frontex.eu.int/gfx/frontex/files/hera-statistics.pdf
Critique regarding human rights (2) • Human rights on paper vs human rights in practice • Respect for human dignity (detention conditions, health care) • ECtHR, M.S.S. v. Belgium and Greece (2011) – inhuman and degrading
treatment (art. 3) and the right to an effective remedy (art 13 of ECHR) • Human Rights Watch (2011) The EU’s dirty hands –Frontex
involvement in ill-treatement of detainees in Greece. Although Frontex should not have any enforcement role in the joint operation, the report reveals that guest officers were making de facto decisions on the ground.
• Shifting of responsibility between Frontex/EU and member states • The challenges of working in multi-jurisdictional areas: burden shifting
“Facilities used to host migrants immediately upon arrival should be equipped to provide adequate care and protection to separated children, families as well as individuals with specific needs, such as survivors of torture or suspected victims of human trafficking. EU Member States should consider operating open facilities when there is no risk of absconding or other reasons justifying a deprivation of liberty, or where protection considerations should prevail, as is the case, for example, for separated children.
EU Member States are encouraged to apply the safeguards against arbitrary detention contained in the relevant parts of Article 15 of the Return Directive to migrants apprehended in connection with the irregular crossing of a sea border, even if they have decided to make use of the optional clause contained in Article 2 (2) (a) of the directive.” (FRA Report 2013, p.13)
Well. After we…I would say, without bragging, I would say that things have become much better. Because we pointed out, when we started coming to Greece, we pointed out that conditions were terrible for the migrants. It was like watching, it is terrible to say it, but it was like watching a war movie from 1943. Just like that. It came close to concentration camps. And we wrote a lot about it. What has happened now is that they have expanded the camps. They have gotten in, among other, Medicins sans Frontiers, nurses which are in the area, and the threshold for being sent to a hospital is quite low. So I have to say that if Frontex hadn’t been there, this would never have happened. Never. So one can criticize as much as one wishes, but things have become better. I would say that.
(police officer PU5, Frontex team leder)
Doing police work in a humanitarian borderland
«The most challenging part for me was what I talked about earlier. Well, it was so bad that my thoughts went to the dark sides of our European history. I began to reflect over – these are very personal thoughts – but I thought about those who were participating under nazism, who were involved, were they thinking the same as I am now? Did they try to find a way to justify it? Did they understand that whatthey were doing was wrong? Is it wrong? Should we be involved in this? Should we nt be involved? I have a very large apparatus guarding my back, which in a way supports me that this is good, but then you see in a way, at least I see, that nothing happens. What’s the point? Many such things. This part has been a challenge and we talked a fair amount about it down there , not exactly with the same perspective, but about whether it was right for us to be involved. Are we contributing to something good or are we just helping Greece to do something wrong? /…/ I hope that my children and grand children can look back on what their father and grandfather did as something that was right, that he did something good; that this will not be a shadow in European history that I have contributed to. I really hope so. «(FRN2)
«Jeg vet om mange sånne ulike enkelthendelser som ble rapportert i tillegg til den generelle situasjonen da. Ting som skjedde som gikk konkret på enkelte greske tjenestemenn, og der har vi en utfordring når vi er ute, når vi ser ting og opplever ting som ikke er i orden i det hele tatt. Etter både menneskerettigheter eller våre interne handlingsmønstre, hvordan vi skal være mot de menneskene vi kommer i befatning med, den der..det diplomatiet som på en måte ligger bak, at vi er der fordi vi er, altså for å bistå det greske politiet, samtidig som jeg er dypt uenig med den metoden de bruker og måten de snakker med folk på. Sånne ting som vi setter ganske høyt her hjemme som på en måte hadde blitt for lengst lagt bak for det er ikke kapasitet til å bruke tid på å være høflig..det blir som dyr. Det var slitsomt». (FRN 2)
Many illegal immigrants and persons in need of international protection are travelling in conditions of extreme hardship and are taking great personal risks in their attempts to enter the EU illegally by hiding in vehicles, on cargo vessels, etc. The recent practice of travelling on board of unseaworthy and overcrowded boats, has multiplied the number of unfortunate migrants who continue to lose their lives by drowning in the Atlantic Ocean between Africa and the Canary Islands and in the Mediterranean Sea.
The tragic death toll resulting from this kind of illegal immigration is unacceptable and must therefore be significantly reduced. The capacity to detect small boats in the open sea must be enhanced, contributing to greater chances of search and rescue and thereby saving more lives at sea. (EU Commission)
“The EU legislator should support Eurosur’s life-saving potential by strengthening the references to rescue at sea in the proposed regulation. The Eurosur handbook should include practical guidance on how to achieve this. The handbook could recommend, for example, that one national authority manages its respective Eurosur and national rescue coordination centres, that rescue coordination centres post liaison officers in the national Eurosur centre and the creation of an automatic alert system. /…/
The Eurosur handbook should provide persons operating national coordination centres with clear guidance on how to ensure respect for fundamental rights, including on how to avoid personal data from being inadvertently collected, stored and shared, as well as how to reduce the risk that data referred to in Article 18 (2) of the proposed regulation are not shared with third countries.” (FRA Report 2013, p.12)
‘The ambiguous architecture of risk’ (Weber and Pickering, 2011)
• ‘Vulnerability is determined by the capacity of a system to mitigate a threat. Vulnerability is understood as the factors at the border or in the EU that might increase or decrease the magnitude or likelihood of the threat.’ (Frontex, CIRAM, version 2.0: pg 27).
• ‘Threat is defined as a force or pressure acting on the external borders.’ (ibid.: 20).
• The ‘impossibility’ of counting border deaths. • Human vs state security • Humanitarian vs law enforcement mission • "within the EU policy context, irregular migration remains largely
viewed as a security concern that must be stopped. This is fundamentally at odds with the human rights approach concerning the conceptualisation of migrants as individuals and equal holders of human rights“ (Paul d'Auchamp from the Brussels section of the Office of the High Commissioner for Human Rights)
Meeting of Sub Committee on human rights (DROI) 16 may, 2013
on the on the Implementation of the new regulation of FRONTEX in the EP in Brussels
"within the EU policy context, irregular migration remains largely viewed as a security concern that must be stopped. This is fundamentally at odds with the human rights approach concerning the conceptualisation of migrants as individuals and equal holders of human rights.“
Paul d'Auchamp from the Brussels section of the Office of the High Commissioner for Human Rights
Frontex statistics and measures of success
Name of
Activity
Illegal
Migrants
diverted
back /
deterred
Facilitators
arrested
Interviews
carried out
by experts
deployed by
Frontex
HERA 2008 4791 294 1428
MT 2321
IT 16098
Total number of
arrivals
7544
NAUTILUS
20087930 15
Frontex: Annual Risk Analysis 2011
Who is migration dangerous for?
“Through an examination of datasets in Europe, the USA and Australia it [the article] finds women are more likely to die crossing borders at the harsh physical frontiers of nation-states rather than at increasingly policed ‘internal border’ sites. The reasons why women are dying are not clearly discernible from the data, yet based on the extant literature it is reasonable to conclude that gendered social practices within families, and within countries of origin and transit, as well as the practices of smuggling markets, are key contributing factors.” (Pickering and Cochrane, 2013)
Criminalisation of migration • The difficulty of accessing Europe with legal means
• Stumpf (2006): convergence of criminal law and immigration law (crimmigration law):
a) progressive criminalization of immigration offences
b) the growing similarities in their enforcement
c) united by a similar social function of ‘acting as gatekeepers of membership’
• Immigration related prosecutions outnumber all other federal criminal prosecutions, including drugs and weapons prosecutions. Immigration and Customs Enforcement is now the largest investigative arm of the U.S. Department of Homeland Security.
• Imprisonment decision based on immigration law the largest category of first time imprisonment decisions in Norway
§ 106 A foreign citizen can be apprehended and imprisoned when
a) The foreign citizen does not cooperate with the authorities in ascertaining his identity as prescribed by § 21 or § 83, or there are concrete indications that may suggest that he is presenting incorrect identity.
e) The foreign citizen does not do what is necessary to fulfill his duty of getting valid travel documents, and it is purposeful for presenting him to the foreign authorities in order to obtain such documents.
Deportation and return activities
• Frontex: charter
flights
• The most «useful»
aspect of Frontex
for Norway
Immigration law
Other (unknown)
EEA (criminal)
Breach of criminal
law
Deportation in Norway 1991-2012
Human rights challenges in co-operation with third countries
“It is a violation of the principle of non-refoulement to return individuals to situations of inhuman or degrading treatment (for example in detention facilities) or where there is a risk of onward removal to a country where the person has a well-founded fear of persecution or other serious harm. More generally, if an agreement is concluded with a country that has a record of persistent or serious violations of human rights, there will still be pressure to implement the agreement, in spite of the risks involved for the readmitted person.” (FRA Report 2013: 16)
In Kufra the delegation visited the detention camp for illegal immigrants where 130 sub-Saharan citizens were detained. The condition of this structure can be described as rudimentary and lacking in basic amenities.
The mission was informed that, during 2006, the Libyan authorities had apprehended 32,164 illegal immigrants and had repatriated 53,842 during the same period. Furthermore, some 60,000 illegal migrants were currently detained.
Source: Report on the Frontex-led mission to Libya 28 May-5 June 2007
The normative challenges • Sassen (2008): ‘Third spaces’ – neither national nor global • ‘proliferation of particularized normative orders, including their downgrading to
utility logics’ (ibid. 75) • ‘de-bordering of national normative frames’ (Sassen, 2008: 63).
• Frontiers are marked by the shifting terrain between legality and illegality. They are the ‘meeting point between savagery and civilization’; ‘zones of not yet – not yet mapped, not yet regulated’; open for collaborations among legitimate and illegitimate partners (Tsing 2005: 27).
• Frontier zones producing precariousness of life (Weber and Pickering, 2011): risky journeys, border deaths, exploitation.
• Establishing responsibility for action-at-a-distance (policing-at-a-distance, off-
shore industries, drones…) – formation of transnational jurisdictions. • Guild (2012): What legal mechanisms of regulation of state violence beyond the
border exist and how do they work?
Class Debate: Interdiction of Refugees at Sea (last class)
Explain how your region interprets protection duties for refugees arriving by sea:
1) First group will represent the Inter-American Commission of Human Rights, The Haitian Centre for Human Rights et. al. v. United States, Case 10.675, Report No. 51/96 (1997)The Haitian Centre
2) Group nr 2 will represent the US Supreme Court, Sale v. Haitian Ctrs. Council, 113 S. Ct. 2549, 125 L (92-344), 509 U.S. 155 (1993) - [pdf] US Supreme Court
3) Third group will address how the EU manages this issue: Hirsi v. Italy, ECHR 2012
4) Group nr 5 will review Australia's practice and policies:
http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html