Frontex in the Mediterranean

This article about the practices and strategies of Frontex concerning the European sea borders was published in the brochure Frontex – Widersprüche im erweiterten Grenzraum by the “Informationsstelle Militarisierung” in German. Here is a translated version without the references included in the original article.

Frontex in the Mediterranean – Of Grey areas and legalisations of a different kind

The public discourse on irregular migration to Europe is dominated by the images of small boats packed with refugees and migrants crossing the sea to reach the coasts of Europe. This discourse of an allegedly uncontrolled “invasion” of Europe dates back to the 1990s when the image was first used particularly in the Spanish media. Soon the packed refugee boat on the open ocean became the image that symbolised migration to Europe. It also became the central figurative element in the debate on European refugee and migration policy and was used by all sides to legitimise their respective demands and ideas.

For the EU Commission, therefore, it seems clear that the EU has a moral obligation to prevent irregular migration, not least to end the suffering and dying on the high seas. This line of argument fits seamlessly into the EU’s interventionism in the area of human rights. The image of the boat refugees hence serves in part to justify the militarization of the borders and the widening of the activities of a europeanised border management system. At the same time it enables the EU to turn on its head the old call to “fight what causes people to become refugees, not the refugees” and integrate border management into a larger concept of a policy of “migration and development”, which legitimises broad-based socio-technical intervention in the countries of origin and transit.

But also for the critics of the current situation regarding the refugee protection in the EU, the figure of the exhausted or even dead boat refugee plays a central role which is used to denounce the inhumanity and amorality of the EU and call for improvements. It is clear to all players involved, however, that while it may not be the exception in the actual migratory reality, this common image certainly does not constitute the rule. Not surprisingly, migration too uses the most modern forms of mobility and seldom takes place in a totally criminalised space; it rather moves in the grey areas of statehood and uses existing legal guarantees to serve a different purpose. Frontex and the EU Commission are both aware that the majority of those, who are living illegally in the EU, initially entered legally but simply did not leave when their visas expired (the new figure of the “visa-overstayer”). A glance at the current statistics published by Frontex shows that the number of those refused entry at sea borders represents just a third of all those rejected. It should be warned to draw to simple a conclusion from these figures as practices in terms of refusing entry vary greatly between the different types of border. In general, however, it is clear that migration by sea is only one of many forms of migration.

Frontex itself certainly keeps an eye on these different forms of migration – indeed, the Risk Analysis Unit exists for precisely this purpose. Nevertheless, it has been apparent from the beginning that sea borders have a particular meaning for Frontex. The first major joint operations after the establishment of the agency in 2004 took place at sea borders, and it was those operations which rapidly grew both in scope and duration. While small pilot projects were still being conducted on the land borders to try to assess what European border protection under joint responsibility was really supposed to mean, on the open sea it was already being put into practice. This special position occupied by sea borders is also reflected in the budget, where spendings on maritime operations are always the largest single item.

This led Christoph Marischka in 2007 to ask why Frontex loves the sea so much. He attributes the special attention that Frontex devotes to the sea borders to their special character: there is no clear borderline with border posts and barriers; instead they are a broad, diffuse area, a “blurred border of the rule of law” – an excellent experimentation ground for an agency which is seeking to invent, test and ultimately establish a new form of “border management”.

Questions about Frontex’ love of the sea are still relevant in 2009. Even though the agency is significantly expanding its operations at land and air borders, its sea operations still represent the bulk of Frontex’ operational activities. Asked specifically why it devotes so much attention to these, a Frontex officer from the Sea Operations unit replied that sea borders are most difficult to control, that they entail a very special and larger expenditure in terms of resources and personnel than, for example, a single border post on land, and that they are therefore the area in which the European border agency can contribute and achieve the most.

Another reason the question about Frontex and the sea is still relevant in 2009 is because this is the year which has proved how right both answers were. 2009 could make history as the year in which migration in small boats across the sea to Europe was halted, at least as far as the Euro-African part of the Atlantic and the western and central Mediterranean are concerned. The Frontex officer was therefore right in his assertion that the sea was where most could be done. But he was less communicative about the resources backing this development. This question points back to the “blurred border of the rule of law”.

Once upon a time off the Canary Islands…
The history of Frontex’ Operation Hera has been told often enough elsewhere. In summary, Spain and Frontex, in trying to stop irregular migration from Senegal, Mauritania and the Cape Verde Islands to the Canary Islands, have invented a new practice of migration management on a sea border which has been moved forward to West Africa in the context of Operation Hera. Under the Seahorse agreement, which covers many more aspects than only migration, the three
countries give Spain and hence Frontex operations led by Spain the right to carry out joint patrols in the respective territorial waters. In this way, cayucos and pateras (small boats) were prevented from setting sail. In 2009, this form of cooperation has, according to the Frontex officer, been expanded to include land patrols to prevent the boats from even leaving.

While there were repeated reports of migrants circumventing the patrols in the Frontex operation, on 1 June 2009 AFP reported that not a single migrant boat had landed on the Canary Islands for two months. While it is idle to speculate whether the joint patrols have really been the decisive factor for the decrease in the number of arrivals or whether it rather has something to do with the worldwide economic crisis, Gil Arias, deputy executive director of Frontex, believes that the activities of Frontex have indeed been decisive.

The fact that the now existing readmission agreement significantly reduced the chances to stay in the EU for those who made the crossing may also explain the drop in numbers. However, it is a fact that Frontex, in association with other EU Member States, is actively seeking to export this “recipe for success” of moving the border control forward to states bordering the Mediterranean, as the following will show.

Sailing boats and freighters
Frontex also runs another sea operation around Malta and Lampedusa. Codenamed Nautilus, the operation conducted in association with Italy and Malta sought to achieve similar results to the operation off the West African coast. Its aim was to halt irregular migration, particularly stemming from Libya. In 2006 and parallel to Operation Hera, Frontex began to send out interrogation experts to find out more about the migration routes and prepare deportations. At the same time, sea patrols were used to try to halt the crossings. After the first operations in 2006, Frontex executive director Ilkka Laitinen was still giving very optimistic statements: “I am very satisfied with the successful course of this operation. It was a pilot project and I am very happy that […] it could be carried out according to the schedule. From the coordination point of view the operation went very smoothly and it was a good example of the effectiveness of joint efforts.”

But already in 2007, the fragility of the construction of a European border agency which may not encroach on the sovereignty of the Member States and which therefore also has no operational resources of its own was starting to emerge: on 08.03.2008, the then EU Commissioner for Justice, Freedom and Security, Franco Frattini, officially declared that the operation had failed. The reasons cited were the unwillingness of the EU Member States to loan Frontex the items they had pledged such as ships and helicopters, including personnel. The operation was also ineffective because, as Frontex spokesman Michal Parzyszek explained, the human traffickers had easily been able to choose other routes during the first Nautilus operation. A large number of refugees travelled not to Malta but to the Italian island of Lampedusa. He said the smugglers were clever and very well informed about the operation, and had been in possession of ‘intelligence’.

The operation failed again in 2008. On 09.21.2008, the Times of Malta, under the headline “Frontex chief admits failure”, reported that Ilkka Laitinen, the executive director, had declared that the second operation had also been a failure and that Frontex even saw itself as part of the problem rather than part of the solution: “This is the saddest part of the story. We have an increased level of operational activities which might be serving as a pull factor for traffickers.” He also speculated that the relative success of Operation Hera could have shifted migration from the Atlantic to the Mediterranean: “Traffickers could be targeting Malta and Italy as an alternative to the Canary Islands. The number of clandestine immigrants reaching the Canaries has fallen considerably.”

It can be concluded that the main reason Frontex failed in the region of Italy, Libya and Malta was that it was not possible to stop refugees from setting sails, as this would have entailed encroaching on the sovereignty of the Libyan state.

Criminal practice in Greece
Frontex is confronte with a similar problem on the sea border between Turkey and Greece. The Greek coastguard, which is under the control of the Trade Ministry, does not have enough resources to guard the fractal sea border and it has no legal possibility of preventing crossings to the Greek islands. This is further complicated by the fact that there are virtually no international waters and some of the Greek islands are just a few kilometres away from the Turkish mainland. The Frontex officer quoted above talked about the island of Lesvos which he visited recently during the current Frontex Operation Poseidon. He reported that the Turkish coastguards were doing nothing at all to stop migrants crossing to Lesbos at night. It would be well known from where the migrants set sail and where they stayed beforehand, he said, but the Turkish police had no interest in acting. Likewise Frontex’ invitation to the Turkish coastguard to participate in Poseidon had been rejected.

The Greek coastguard has developed its very own way of dealing with this “problem”. According to reports from human rights organisations, refugees who are seized in Greek territorial waters (only there, the Greek coastguard can operate) are routinely taken on board, beaten and tortured, robbed of all their possessions and abandoned either at sea or on uninhabited islands: border management by deterrence

This illegal practice which is blatantly in contravention of human rights and all principles of a liberal-democratic state may well appear so archaic to some people that they would actually welcome European intervention in the form of Frontex. It is noteworthy, however, that Frontex has made no concrete statement on either this or on other human rights violations. It is true that the agency takes enormous efforts now, following human rights based criticism, to stress repeatedly that the safeguarding of human rights is a matter of the highest priority in the planning of all operations and that Frontex investigates accusations. However, practical consequences of this are not reported.

Division of labour
These configurations show that tackling irregular migration in the Mediterranean is based on the principle of the division of labour. As will be shown by the example of the region of Libya, Malta and Italy, exporting Operation Hera remains the goal. Where this is not possible, the existing practice is tolerated while efforts are made to put in place the political foundations to move the border controls forward as in the Hera model. In both cases, the Member States involved and Frontex interact cleverly with each other. In the media, “successes” in preventing migration are attributed to a Frontex operation and successful European cooperation, while political responsibility, as well as the initiative for bringing about the political changes required to facilitate an expansion of Frontex operations, is down to the Member States.

Italy, for example, has long sought an agreement which would pave the way for joint Italian-Libyan patrols in Libyan coastal waters. As far back as 2002 Italy had negotiated migration control treaties with Libya but these either never came into force or were annulled after a short time. In December 2007, Italy concluded a further agreement with Libya which was designed to allow joint patrols. Libya, however, linked the implementation of this agreement to the conclusion of a Friendship Treaty between Libya and Italy, which was signed in summer 2008. In this Friendship Treaty, Italy explicitly recognises its responsibility for the crimes committed during Italy’s colonisation of Libya and agrees to pay the sum of five billion US-dollars to Libya in reparation. This treaty also, of course, offers a further possibility of bringing influence to bear; not least among those who benefit will be Italian companies carrying out the infrastructure measures in Libya to be financed out of this reparation payment. Still it is a unique incident that a former colonial state not only to apologises for its colonialism but also expresses the apology in material manners. This treaty is not, of course, to be understood as only relating to migration and border policy; certainly there will be other geopolitical motivations behind it. Nevertheless, the implementation of patrols is one of the points on which Italy insisted.

In December 2008, Libya and Italy signed an implementation protocol, and the Italian and Maltese governments were optimistic that the patrols could begin by the end of January 2009. There were, however, further delays and the patrols, together with the pushing back of refugees to Libya resulting from the patrols, did not begin until mid May 2009. In the weeks before the patrols began, a furious, at times public dispute flared between Malta and Italy over the continuation of joint border management activities in the Mediterranean. Italy, in particular, accused Malta of having diverted around 40,000 refugees to Italy in 2008. The background of the dispute was a supplementary protocol to the 2004 UN Convention on the Law of the Sea which deals with the definition of the nearest “safe haven” for those rescued from distress at sea, which includes refugees. Since Malta has not signed the protocol but has a very large search and rescue zone, many of the refugees seized by the Maltese armed forces were taken to Italy which the Maltese understood to be the nearest safe haven. The dispute became public in the case of the Turkish freighter “Pinar E”, which, having taken on refugees, was sent back and forth between Malta and Italy for days until Italy finally agreed to accept the shipwrecked refugees. Particularly in view of this dispute, the Frontex officer already quoted said no further joint operation would be possible in 2009. Although Frontex is continuing with Operation Nautilus in 2009, this is being restricted to Malta as host country, whereas Operation Hermes, focussing in particular on Sardinia, will be conducted with Italy.

In terms of migration originating in Libya, Italy appears to favour a national solution and put this into practice sensationally on 5.6.2009 when a ship with 227 refugees aboard was stopped by the Italian coastguard and was promptly diverted back to Libya. The Italian interior minister, Roberto Maroni, called this new policy “a turning point in the fight against illegal migration” and confirmed that Italy’s new possibilities for action resulted from the treaty with Libya. As this practice contravenes, in particular, the Geneva Refugee Convention which requires asylum applications to be examined, the public outcry was huge; even the UNHCR intervened publicly and criticism was also voiced by the EU Commission. But Italy continues to adhere firmly to the new practice and marked the official start of cooperation with Libya with the handover of three patrol boats to the Libyan authorities.

Frontex’ attitude to this practice, which is in contravention of international law, underlines the thesis of a division of labour described above. Notwithstanding the fact that Frontex claims to honour human rights and international conventions, no criticism could be heard from the agency. It simply made the usual references to the agency’s coordinating role which required it to respect the sovereignty of Italy and an announcement that Frontex would not send refugees on the open seas back to Libya during Operation Nautilus, as this practice was based on a bilateral agreement between two states which does not include Frontex. The Frontex officer also said he knew nothing concrete about the status of cooperation between Italy and Libya but noted that significantly fewer refugees had arrived in Malta since mid May. Frontex is therefore benefiting in silence from Italy’s contravention of the law and leaving it to Italy to continue with it. This became particularly clear once again when a German Federal Police helicopter deployed in Operation Nautilus spotted a refugee boat and reported this to the Italian coastguard via Frontex headquarters in Malta, in the knowledge that this intervention could lead to the immediate deportation of the refugees to Libya – which promptly happened. No concrete reactions by Frontex to this event have come to light, but no doubt Frontex would again point out that this was the action of a sovereign state (in this case Germany) over which Frontex has no control. The line of defence used by the German Interior Ministry is similar.

Thus political responsibility gets lost in a ping-pong-game of who is to be blames, a circumstance which surely is very convenient for Frontex. There has been no further discussion of this event. Unfortunately this means that the export of the Hera concept to the central Mediterranean region is virtually concluded. Italy’s current practice will no doubt be condemned in a few years, for instance by the European Court of Human Rights, as contravening human rights (if a case is brought to trial at all). By time, it is likely that Italy’s actions will be retrospectively legalised: Libya is currently working actively to establish its own asylum system, which will include cooperation with the UNHCR. This will remove important arguments from the existing legal criticisms. In the meantime, the IOM (International Organization for Migration) and CIR (the Italian Council for Refugees) have established representations in Libya. The vanguard activities of NGOs and IGOs follow an established pattern of EU policy. In Morocco and Ukraine too, for example, the IOM and NGOs were active in the field of refugee politics and, with the support of the EU, laid the foundations for an asylum system which is the prerequisite for the involvement of these countries in the European migration regime. The establishment of minimal protection for refugees would finally complete the export of Operation Hera, and Frontex, which would no doubt welcome the establishment of an asylum system, could take part in the Italian practice.

A similar process can be observed on the Turkish-Greek border, where considerable efforts are being made to push Turkey to cooperate in border management and hence to legalise the existing practice of illegal deportations. On 7.7.2009, Greece’s deputy foreign minister, writing in the Greek newspaper Kathimerini, described his wishes for further negotiations with Turkey. The “Six-point plan on illegal migration in the Aegean” includes the readmission agreement with Turkey to be expanded and implemented, if necessary accompanied by a threat to block negotiations about Turkey’s accession to the EU. In addition, a Turkish port would be designated to serve as central reception port for returned refugees. The demand for an intensification of Frontex’ operations comes as no surprise in this context. While this process bears no consequences for migration so far, the pattern is nevertheless clear: the moving forward of the border and the inclusion of countries of origin and transit in the regulation of migration follows the example of Spain and Italy. Until this goal is achieved, the EU and Frontex, will tolerate the existing, lifethreatening practice of hunting down and illegaly deporting refugees which happens every night in the Aegean Sea.

Conclusion
If these developments are not halted by resistance from migrants, activists or civil society, a dangerous precedent will be created and the moving forward of the borders of the EU may be further advanced. Even though Frontex may describe itself simply as a small coordinator of diverse operations, the agency’s central role in this policy cannot be overstated. The policy of moving the border forward may have been discussed and decided at high EU level, but the implementation of this policy as well as inventing and testing the related practice takes place centrally in operations organised by Frontex. It would be impossible or at least far more difficult to pass on this practice and to adapt it to regional conditions without a European agency like Frontex. From this insight must follow a criticism of the agency. Frontex does not represent the boots on the ground of European border management, as is often assumed, but is active on a higher level, the level at which new policies and practices are developed.

Frontex wears suit, not uniform. Criticising concrete border management practices will make no impression on Frontex. Rather, there is a need to examine the way in which a European border management practice is being synthesized and passed on and from this criticism of the Europeanisation of migration and border policy, a criticism must be developed and directed against Frontex, whatever the agency’s claims of being apolitical.

This criticism must include two elements in particular. The first is a matter of transparency and clearly defined responsibilities in the process of Europeanisation. It is unacceptable that the political responsibility for what happens on the open sea is played back and forth between the various levels and institutions of the Member States and the EU until it disappears. The second stems from observing operations in the Mediterranean and that the political modus operandi which is generally supported by Frontex always takes the form of retrospectively legalising an existing or newly tested border management practice which, as can be clearly shown in the case of Italy and Greece, is unlawful and inhuman. Frontex often operates in the grey areas of national, EU and international law and extends this in interplay with other border management actors. A policy of “act first, think second” is manifested here which is unacceptable. But it is important not to assume that the EU would pursue such a strategy unconsciously. The consequence in the Mediterranean is a border policy which is aimed exclusively at halting undesirable migration and which also contains strong elements of a purely symbolic policy: it is more a matter of signalling activity than a fundamental debate about migration in all its forms. The rights and often also the lives of the migrants are lost in the middle of this process.

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