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November 19, 2021
While Frontex is currently under unprecedented investigation for human rights abuses at EU borders, its work beyond EU borders remains barely scrutinized, write Dr Mariana Gkliati and Statewatch researcher Jane Kilpatrick in Forced Migration Review.
This article was published in November 2021 by Review of forced migration. “The most read publication on forced migration”, this issue specializes in the theme of outsourcing/mobility and action in protracted displacement.
Find the entire number herewith articles on UNHCR’s perspective on international protection, by Madeline Garlick, European Aerial Survellance (Angela Smith), “a word on the ‘right to flee'” by Violeta Moreno-Lax, and many others.
Since its creation in 2004, Frontex (the European Border and Coast Guard Agency – ECBG) has become an important vehicle for implementing EU outsourcing policies. Its arrangements with states of origin and transit aim to prevent further movement to the EU and facilitate return and readmission. Using case studies from Albania and Niger, we explore different human rights risks and draw relevant lessons for protection-focused practitioners and policymakers interested in EU membership. the EU to the rule of law.(I)
Frontex in the Balkans
Following an increasing number of arrivals in 2015 and pressure to “close” the Balkan route, the Western Balkans became a priority region for Frontex. The EU has concluded five status agreements with Albania, Bosnia and Herzegovina, Montenegro, North Macedonia and Serbia, allowing Frontex to carry out joint surveillance operations or rapid border interventions on their territories. (A Frontex operation in Albania in 2019 was the first to be organized outside EU borders.)
In Albania’s case, unfortunately, the status agreement does not provide necessary human rights guarantees, and migrants have reported systematic abuses by law enforcement, including pushbacks violent.(ii) First, it does not oblige Frontex or Albania to suspend or terminate an operation in the event of fundamental rights violations.
Second, although it requires both parties to have a mechanism to address complaints of human rights violations by personnel during operations, it is unclear whether the mechanism covers complaints at any stage of the process or only appeals concerning rejected applications; furthermore, the complaints mechanism lacks accessibility, effectiveness and independence. It is not used often and has so far given no tangible response to complaints. The mechanism is now the subject of an investigation by the European Ombudsman.
Third, the status agreement gives Frontex personnel executive powers, including the use of force and weapons, while granting them immunity from civil and criminal prosecution. Finally, Frontex’s operational plans with third states lack transparency, leaving little opportunity to review the agency’s actions or its investigation of complaints.
Frontex in West Africa
The West African route passing through the Sahel region, a historic transit zone, constitutes another major priority for Frontex, whose presence in the region was strengthened in 2010 with the launch of the Africa-Frontex Intelligence Community (AFIC) . The AFIC – a cooperation framework with 31 African states – aims to strengthen the effectiveness of border management by establishing and improving information sharing and communication channels, and improving the operational capacities of beneficiary African states and their ability to share strategic and operational risk analyses. on migration flows, border security and cross-border crime.
In one such case, under AFIC, Frontex is cooperating with Niger by sharing information on border management, providing training and capacity building, and establishing integrated border management systems. borders, in particular by guaranteeing the interoperability of West African databases and their accessibility by EU authorities. .(iii)
Migrants traveling across West Africa risk racketeering, arbitrary arrest and detention, deportation and torture at the hands of state and non-state actors. Many of them die or are abandoned in the desert region of Niger. The situation in Niger has worsened following structural changes in national legislation carried out in the name of European cooperation. In particular, Niger, a traditional transit country, was the first country in sub-Saharan Africa to amend its national legislation to criminalize the smuggling of migrants in 2015 and adopted repressive measures to contain migrants. The criminalization of migration and closed borders have led to increased fees for smugglers and increased security risks for individuals, with many forced to take more dangerous “underground” routes.(iv)
A look towards the future
Frontex occupies a central place in the implementation of EU outsourcing policies and we can expect a further expansion of the territorial scope of its activities in the Balkan and West African regions, notably through joint operations. Furthermore, the new EU pact on migration and asylum calls for increased engagement with third countries to achieve their cooperation on readmissions. It envisages a much deeper involvement of Frontex in forming and supporting new partnerships with third countries.
One specific challenge we identified during our research is the lack of transparency regarding the agency’s work on the ground. The concealment of operational plans, combined with the restricted right of access to information in third countries, poses a considerable challenge; this challenge is even more acute in West Africa where the presence and activities of Frontex are barely known. This prevents local civil society from monitoring the agency, with the result that it cannot effectively advocate for human rights and the interests of local economies and communities.
Frontex’s cooperation with third countries is tailored to the region. For Balkan countries, the path to EU membership is inextricably linked to cooperation in preventing migrant movements. This incentive makes them particularly receptive to EU concerns on securitization and is likely to encourage more direct operational cooperation as their geographic location helps reduce Frontex’s operational costs.
On the other hand, the agency’s cooperation with West African countries is more indirect and more practical. It focuses on capacity building, information sharing and cooperation regarding the readmission into the country of people rejected from asylum in the EU. However, this is vitally important for achieving the EU’s objective of deterring entry into EU states. This cooperation is extremely politically sensitive because it tends to go against the national interests of West African countries. This is why the EU uses visa liberalization and development aid as incentives.
It is important to understand that different regional characteristics lead to different outsourcing strategies and different forms of cooperation. Therefore, our policy, legal and advocacy solutions cannot be universal: they must be region-specific.
Call for robust guarantees
By outsourcing border control, the EU also aims to outsource its responsibilities for refugee law and human rights protection. However, we can identify two types of risks in this approach.
Firstly, there is a risk of violation of the civil, political and socio-economic rights of vulnerable people on the move and residents of third States. Second, the EU risks being held responsible for rights violations, attributed to Frontex either directly or indirectly through its complicity in violations committed by third states. Therefore, any cooperation should be conditional on an assessment of the human rights situation on the ground. This requires clear situational awareness and continuous monitoring and reporting. Here, the role of the European Parliament in monitoring and approving such cooperation should be central.
Finally, status and employment agreements should be underpinned by the necessary human rights guarantees, so that they can be enforced and reviewed by competent authorities, including the courts, and by civil society in the region. EU and third countries.
www.fmreview.org/outsourcing
Mariana Gkliati: mariana.gkliati (at) ru.nl @MarianaGkliati; Assistant Professor of International and European Law, Radboud University
Jane Kilpatrick: jane(at)statewatch.org @JaneVKP; Researcher, Statewatch
(I) Our research is partially supported by the Transnational Institute and Statewatch, and includes interviews with national authorities, civil society and Western missions in Mali and Niger.
(ii) Border Violence Monitoring Network Black Book of Pushbacks www.borderviolence.eu/launch-event-the-black-book-of-pushbacks/ See also the article on “Pushbacks on the Balkan route: a feature of the externalization of EU borders” in this issue.
(iii) Zandonini, G (2020) “Biometrics: The new frontier of EU migration policy in Niger”, Conference proceedings, Externalization of borders; detention practices and denial of asylum, Lagos
(iv) ARCI (2018) “The dangerous nexus between migration, development and security for the externalization of borders in Africa. Case studies from Sudan, Niger and Tunisia www.statewatch.org/news/2018/jul/report-frontiere-2018-english-.pdf
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