EU: Deploying armed Frontex teams on the 'Balkan Route': agreements with Serbia and Macedonia on the way

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Deploying armed Frontex teams on the 'Balkan Route': agreements with Serbia and Macedonia on the way
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Will the deployment of armed European Border and Coast Guard teams in Serbia and Macedonia - with immunity from the civil and criminal law of those countries - improve the chances for protecting the fundamental rights of migrants and refugees, or legitimise the violence and abuse that is currently taking place?
The closure of the 'Balkan Route' for migrants and refugees travelling to the EU has been hailed as a great success by politicians and officials.

Donald Tusk, the President of the European Council, recently praised the "reduction of 98%" in "illegal migration through the Western Balkans route", which has been replaced by "stability in the region" thanks to "mutually beneficial coooperation" between the EU, its Member States and other countries in the region such as Serbia and Macedonia.

For the migrants and refugees that remain stranded in the Balkans, this cooperation amongst states in the region - including the coordinated deployment of border guards, the construction of fences and the introduction of border procedures designed to minimise access to EU territory - has led to a massive increase in the use of smugglers in attempts to avoid the "violence and intimidation" and "routine abuse" that is meted out by law enforcement officials, including through "brutal tactics, such as attack dogs and forcing people to strip naked in freezing temperatures."

In February this year ministers of interior and defence from countries in the region concluded (pdf) that they were "concerned that a large number of migrants remain stranded along the Western Balkans route," and agreed on the need for a "Joint Action Plan including a Crisis Response Plan to be drawn up by the responsible civil, police and military authorities of the participating partners," as "the situation... could deteriorate swiftly and numbers of migrants illegally crossing EU borders could increase again."

Part of that plan was to involve a "coordination mechanism... aimed at supporting partners in need of support, e.g. through possible future operations making use of the European Border and Coast Guard," whose deployment in Serbia and Macedonia is currently the topic of discussions in the Council of the EU.

Frontex in Serbia and Macedonia

A new Regulation (pdf) governing Frontex was approved by the Council and the Parliament in September 2016, and Article 54 offers the possibility for the agency to take "actions at the external borders involving one or more Member States and a third country neighbouring at least one of those Member States, including on the territory of that third country."

Doing so requires the signing of an agreement with the third countries in question, and the first two with which the EU is to negotiate - Serbia and Macedonia - play a key role in keeping the 'Balkan Route' closed.

The latest version of the text on an agreement with Serbia was discussed on Brussels last Friday (28 April) by the Council's Working Party on Frontiers(pdf), whose task is to agree on a text to be negotiated between the Commission and Serbia.

While the latest version of the negotiating mandate is not yet public, Statewatch is publishing here earlier versions of the proposed agreements with both Serbia and Macedonia, which are based on a "model agreement" (pdf) produced by the Commission in November 2016.

See: RESTRICTED/RESTREINT documents: Directives for the negotiation of an agreement between the European Union and the Republic of Serbia on actions carried out by the European Border and Coast Guard Agency in the territory of: the Republic of Serbia (6327/17, REV 1, REV 2, REV 3) and: the former Yugoslav Republic of Macedonia (6329/17, REV 1, REV 2).

Model agreements

The early draft negotiating directives for both Serbia and Macedonia both include the same summary of what the Council hopes to see in the final agreements, emphasising broad powers, the ability to carry weapons and exemption from civil and criminal liability (emphasis added in bold underlined):

"The model status agreement adopted by the Commission, and modified as enclosed, serves as a basis for the negotiations of a status agreement with [the Republic of Serbia/the former Yugoslav Republic of Macedonia.] There are no specific reasons to derogate from the modified status agreement as enclosed. Therefore, the Commission should aim to preserve the essence of the modified status agreement during the negotiations, and in particular:

Territorial scope of the agreement

The agreement should cover the whole territory of [the former Yugoslav Republic of Macedonia/the Republic of Serbia. This agreemet shall not cover Kosovo.]

Purpose of the agreement

The agreement should provide for the possibility to carry out joint operations and rapid border interventions, as well as return operations.

Tasks and powers of the teams

Members of the teams should be entitled to perform all the tasks and exercise all the executive powers required for border control (border checks and border surveillance) and return operations; they should be entitled to carry service weapons, ammunition and equipment and use them in accordance with the law of [the Republic of Serbia/the former Yugoslav Republic of Macedonia.]

Privileges and immunities of the members of the teams and Frontex staff

The agreement should foresee strong protection for the members of the teams and Frontex staff who are not team members but who are sent in the context of a specific operation (e.g. a coordinating officer). In particular, they should enjoy a full immunity from the criminal jurisdiction of [the Republic of Serbia/the former Yugoslav Republic of Macedonia] under all circumstances. They should also enjoy immunity from civil jurisdiction of [the Republic of Serbia/the former Yugoslav Republic of Macedonia] for the acts performed by them in the exercise of their official functions. The other provisions on the privileges and immunities of the members of the team as enshrined in the model status agreement should be replicated in the status agreement as far as possible [these include immunity from the criminal and civil jurisdiction of the host state and exemption from any obligation to give evidence as witnesses, amongst other things].

Fundamental rights

The agreement should enshrine strong provisions on fundamental rights. The safeguards provided for in Article 8 of the model status agreement should be considered as minimum standards."

Council Decisions that would have led to the opening of negotiations between Serbia, Macedonia and the Commission were previously on the agenda of the 22 February 2017 meeting of COREPER - the Council Committee made up of Permanent Represetatives of the the Member States - but were withdrawn. The Council did not respond to enquiries from Statewatch asking why this was so.

The cost of closure

The EU, its Member States and the Western Balkans countries are intent on keeping the Balkan Route "closed", despite the dire consequences it has had for migrants and refugees on the move in the region.

Yet while they are convinced the recent "unprecedented and uncontrolled migratory flow... must not be repeated in the future," their actions have - according to Frontex itself (pdf) - led to "the migrant routes running through Europe, and in particular through the Western Balkans... getting more diversified, dynamic and dangerous," where "more migrants are now more likely to cross undetected."

People have died, brutal violence, mistreatment and pushbacks (pdf) by border guards and law enforcement officials are well-documented, theuse of smugglers has increased but is now more costly and dangerous, and those that are stuck in Serbia, Macedonia and Greece are often living in squalid conditions with little, if any, recourse to public assistance.

The Council's early drafts for agreements with Serbia and Macedonia are keen to emphasise the need to protect and uphold fundamental rights, stating that provisions in the Commission's model agreement should be taken as "minimum standards", operational plans developed with Frontex and either state must "set out in detail... the provisions in respect of fundamental rights," and:

"Members of the team shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights and freedoms, including as regards access to asylum procedures, human dignity and the prohibition of torture, inhuman or degrading treatment, the right to liberty, the principle of non-refoulement and the prohibition of collective expulsions, the rights of the child and the right to respect for private and family life."

But if the cost of closing the Balkan Route has been violence, pushbacks, hardship and even death, and the key aim of the EU and states in the region (pdf) is to ensure that an "unprecedented and uncontrolled migratory flow... must not be repeated in the future," can the protection of fundamental rights really be assured?

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