15 October 2020
Two recent Amnesty International reports have highlighted the role played by EU institutions, agencies and member states in facilitating 'pull-backs' by the Libyan Coast Guard (LCG). Amnesty argues that collaboration with the LCG in this way violates international law. In a response to Amnesty, Frontex has avoided any meaningful engagement with the issues raised.
In early September, Amnesty published: Malta: Waves of Impunity: Malta’s Human Rights Violations and Europe’s Responsibilities in the Central Mediterranean (link).
The report chronicles Malta's "unlawful, and sometimes unprecedented, measures to avoid assisting refugees and migrants," including by:
"...arranging unlawful push backs to Libya, diverting boats towards Italy rather than rescuing people in distress, illegally detaining hundreds of people on ill-equipped ferries off Malta’s waters, and signing a new agreement with Libya to prevent people from reaching Malta."
Part of the report examines the role of Frontex, whose 'Multipurpose Aerial Surveillance' activities have assisted in spotting vessels in distress - small, unseaworthy boats carrying people attempting to escape from Libya - and informing the Libyan Coast Guard of their location, so that it can intercept them and take them back to the very place they are desperately trying to leave.
As highlighted in another recent Amnesty report on Libya: 'Between Life and Death': Refugees and migrants trapped in Libya's cycle of abuse (link to pdf), at the same time as reducing the number of vessels deployed in the Mediterranean and shifting those that do remain to areas where they are less likely to be engaged in rescues:
"EU states and institutions have provided the Libyan Coast Guard (LCG) and the General Administration for Coastal Security (GACS) with at least 16 speedboats and with the training of at least 477 personnel, mostly through EU naval operation EUNAVFOR MED Sophia."
They have also assisted the GNA in its declaration of a Search and Rescue (SAR) zone, which was acknowledged by the International Maritime Organization in June 2018; as well as deploying civilian and military personnel to Libya to assist in the coordination of its 'rescue' capabilities.
The report on Malta gives an impression of what this has led to:
"Of the 146 rescue operations conducted in the central Mediterranean between 1 September 2019 and 29 February 2020, only 25 were carried out by Italian or Maltese assets, while 69 were realized by the Libyan Coast Guard, 51 by NGOs and one by a merchant vessel."
EU missions have retreated from the areas in which rescues are most likely to be necessary, but they have still been busy:
"...they have largely refocused their activities on providing support to the Libyan Coast Guard, and not only through training... EU aerial assets have routinely been employed to identify the presence of refugee and migrant vessels at sea and to immediately inform the Libyan authorities of their position. Such monitoring activity has the evident aim of ensuring that the Libyan Coast Guard can intercept people at sea and return them to Libya, notwithstanding the fact that Libya cannot be considered as a place of safety."
Amnesty argue that:
"The accountability gap for human rights violations in the context of EU external border surveillance is most notable with respect to European aerial assets participating in Frontex Joint Operations or engaged in what is known as Multipurpose Aerial Surveillance (MAS)."
Furthermore, says the organisation:
"...while both Frontex and the European Commission have pointed out that the practice of notifying sightings to the competent MRCCs is in line with obligations under maritime law, they have refrained from ensuring that other non-derogable principles of international law, such as that of non-refoulement, are equally upheld during Frontex MAS and joint sea operations."
In short: Libya cannot be considered a place of safety, and disembarkation in a place of safety is a requirement of international law.
The report on Malta says that the EU and its member states should:
"...set up a predictable disembarkation mechanism addressing the specific situation in the Libyan SAR region, to ensure that any refugees and migrants rescued in the area are promptly disembarked in a place of safety, which cannot be in Libya."
Amnesty cite specific safeguards that Frontex is obliged to take into account. The 2019 Regulation governing the agency says that the Executive Director should not launch activities that "could lead to violations of fundamental rights or international protection obligations of a serious nature," which is clearly relevant in this case.
The human rights organisation argues that this means Frontex should "establish a solid due-diligence framework, ensuring that no border control operation results directly or indirectly in facilitating human rights violations."
What does Frontex have to say in response? On Wednesday, the agency's director, Fabrice Leggeri, wrote to Amnesty (pdf), apparently in response to the two reports, to "clarify the role of Frontex... in providing surveillance activities in the Mediterranean."
Leggeri does not engage with any of the substantive points made in the reports. He does not mention the provisions of the 2019 Regulation cited by Amnesty, not the fact that Libya cannot in any way be considered a safe place for disembarkation, nor any of the specific incidents examined in the report on Malta.
Rather, his letter explains how Frontex's 'Multipurpose Aerial Surveillance' works and reiterates the same argument that is criticised in the report - that in line with international obligations, distress situations are reported to the relevant Maritime Rescue Coordination Centre (MRCC).
The letter goes on to recount the number of people whose lives have been saved following sightings by Frontex's surveillance assets - 8,876 in 2020 so far. This is undoubtedly important - no one should be allowed to drown at sea.
But the reason people are at sea in small, unsuitable boats in the first place is to escape the horrific situation in Libya. It appears Frontex is either unwilling or unable to engage with the fact that, through its surveillance activities and assistance to the LCG, it is pulling them out of the frying pan and throwing them back into the fire.
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