Tag Archives: Frontex

NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey

NATO announced on Sunday, 6 March, that its Aegean Sea patrols have been expanded to Greek and Turkish territorial waters. NATO patrols have been operating only in international waters. And while NATO says its ‘mission is not to stop or turn back those trying to cross into Europe’, NATO has made it clear that NATO ships will return rescued migrants directly to Turkey: ‘In case of rescue at sea of persons coming via Turkey, they will be taken back to Turkey.’ NATO’s plan to summarily return intercepted migrants is consistent with previous statements made by the British and German defence ministers who have said that the purpose of the NATO mission is to stop migrants and return them to Turkey.

NATO’s characterisation of its operation seems to be an attempt to draw a distinction between a push-back practice where any migrant boat, regardless of whether it is in need of rescue, would be intercepted and pushed back and a search and rescue operation providing assistance to migrant boats in need of rescue. This is meaningless distinction given the current situation in the Aegean where every migrant boat is in need of assistance or rescue.

NATO ships are subject to the same rescue at sea obligations imposed by the SOLAS and SAR Conventions as all other ships and are obligated to disembark rescued persons in a ‘place of safety.’ And while disembarking in Turkey is safer than disembarking in Syria or Libya, there are serious questions as to whether Turkey is a place of safety. See the recent Q&A issued by Human Rights Watch concluding that Turkey is not a ‘safe third country’ as defined by EU law. While the question of a ‘place of safety’ under the SAR Convention is not identical to the ‘safe third country’ question under EU law, the fact remains that rescued migrants should not in all cases be automatically returned to Turkey without adequate screening and processing. The failure to screen rescued migrants is a clear violation of the non-refoulement obligations of the individual EU and non-EU States operating under the NATO command.

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EUNAVFOR MED-Six Month Report: No Indication of Refugee Protection Plan for EU Operations within Libyan Territorial Waters and No Reports of Human Trafficking

There is a lot of information in the EUNAVFOR MED Operation SOPHIA Six Month Report   (also here: EEAS-2016-126) that was released last week by WikiLeaks, but there are two subjects not discussed which jumped out at me.

No Discussion of Refugee Protection Plan

First, the Report does not contain information regarding what the EU military force intends to do with migrants who are intercepted or rescued by EU vessels if and when EUNAVFOR MED patrols begin to operate within Libyan territorial waters.

The Report’s ‘Next Steps and Key Challenges’ section [pp 19-21] discusses different EU contingency plans for Phase 2B of the operation and specifically discusses how suspected smugglers arrested by EU forces within Libyan territorial waters would be handled. The Report says suspected smugglers should not be turned over by EU forces to Libyan officials for criminal prosecution unless it can be ensured ‘that they [will be] treated in accordance with human rights standards that are acceptable to the EU and Member States.’ According to the Report, forty-six suspected smugglers have been arrested by EUNAVFOR MED in international waters (between 22 June and 31 December 2015) and all of these individuals have been turned over to Italian authorities for prosecution by Italy’s DNAA – Direzione Nazionale Antimafia ed Antiterrorismo. Italy is so far the only EU Member State prosecuting suspected smugglers.

But unlike the discussion regarding the treatment of suspected smugglers, there is no discussion in the Report about where migrants who are intercepted or rescued in Libyan territorial waters will be taken or how they will be processed. It is certainly possible that intercepted migrants would continue to be taken from Libyan territorial waters to Italy, as is currently the case with operations on the high seas, but I suspect this may not be the plan once EUNAVFOR MED operations are expanded to Libyan territorial waters.

The fact that there is no discussion in the Report of where intercepted migrants will be taken does not mean that EUNAVFOR MED does not have appropriate plans in place, but the omission is troubling because the Report makes clear that once Phase 2B (territorial waters) operations begin, EUNAVFOR MED forces will be interacting and cooperating with the Libyan Navy and Coastguard. (The Report also notes that if requested and if its mandate is amended, EUNAVFOR MED is ready to begin quickly providing capability and capacity building to the Libyan Navy and Coastguard.)

EUNAVFOR MED’s interaction with Libyan forces in territorial waters would, according to the Report, initially include Libyan ‘cooperation in tackling the irregular migration issue’, with the expectation that at a later point in time ‘Libyan authorities could take the lead in patrolling and securing their Territorial Waters, with support being provided by EUNAVFOR Med.’ The Report therefore describes a changing scenario where EU forces would first act alone in Libyan territorial waters, which would lead to some level of cooperation with Libyan authorities (joint patrols? shipriders?), which would finally lead to Libyan authorities taking the lead on enforcement activities, with the EU playing a supporting role of some sort.

The legality of the Phase 2B operations will depend on the details of how intercepted or rescued migrants are processed and where they are taken. EU Member States operating within EUNAVFOR MED would necessarily be exercising effective control over migrants when operating unilaterally or jointly with Libyan forces within Libyan territorial waters and EU Member States would therefore be bound by the non-refoulement obligations in the ECHR, the Refugee Convention, the CAT, and the ICCPR. Any such operations would be subject to the 2012 Hirsi Jamaa v Italy judgment of the ECtHR which rejected Italy’s past push-back practices and close cooperation with the pre-Arab Spring Libya, finding the push-back practices to violate the ECHR’s prohibition on non-refoulement and to constitute collective expulsion.

EUNAVFOR MED’s Phase 2B operation seeks to replicate what Frontex and Spain have done off the coasts of Mauritania, Senegal and Morocco since 2006 pursuant to Joint Operation HERA where Spain and Frontex initially deployed naval patrols in international waters, then negotiated bilateral agreements to move patrols to territorial waters, deployed joint patrols and shipriders within territorial waters, and then continued to provide various forms of support to Mauritania and other West African states to patrol their own territorial waters. Operation HERA succeeded in stopping most boat migration from West Africa, but did so in a manner which did not provide any process to screen intercepted migrants for claims for international protection and subjected intercepted migrants to refoulement.

In order to ensure that non-refoulement obligations are respected and that rights of migrants are otherwise protected, as the EU and EUNAVFOR MED move towards implementation of Phase 2B operations within Libyan territorial waters, more information and transparency is needed to determine and monitor the legality of all aspects of the operations.

No Reports of Human Trafficking

The second perhaps less significant piece of information that jumped out at me as I read the Report was the lack of any suggestion that EUNAVFOR MED patrols have discovered evidence of human trafficking. The Report makes multiple references to trafficking, but always in conjunction with human smuggling, eg, ‘smuggler and traffickers’ business model’, ‘smuggler and trafficker vessels’. The use of the trafficking term seems to be a continuation of the use of imprecise terminology (and possible ongoing confusion over the differences between human trafficking and smuggling as well?). But the Report’s ‘Smugglers’ Business Model’ section [pp 6-8] is clearly only discussing acts of smuggling.

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Filed under Analysis, European Court of Human Rights, European Union, Frontex, Italy, Libya, Mediterranean, Refugees, Reports, UN Security Council, UNHCR

Clarification of Frontex Data On Persons Detected at EU External Borders – Includes Significant Double Counting

Yesterday Frontex released updated monthly data showing that 710,000 migrants crossed the EU’s external borders from January to September 2015. In a Twitter exchange with Nando Sigona (Univ. of Birmingham and Univ. of Oxford), Frontex clarified that it counts an individual migrant each time she crosses an external border; according to Frontex, “[t]his means that a large number of the [710,000] people who were counted when they arrived in Greece were again counted when [after passing through Greece, they entered] the EU for the second time through Hungary or Croatia.”

The 710,000 figure that was widely reported yesterday may overstate the number of individuals crossing the external borders by several hundred thousand. For example, Frontex reported that 350,000 migrants arrived in the Greek islands during the first nine months of 2015 and that 204,000 migrants crossed into Hungary during the same time period. Presumably a majority (or at least a very significant portion) of the migrants crossing into Hungary initially entered the EU via Greece and were counted at that time. Many of the tens of thousands of migrants who crossed into Croatia likewise presumably first entered the EU through Greece.

Frontex did add a disclaimer to its web site explaining the double counting: “Clarification: Frontex provides monthly data on the number of people detected at the external borders of the European Union. Irregular border crossings may be attempted by the same person several times in different locations at the external border. This means that a large number of the people who were counted when they arrived in Greece were again counted when entering the EU for the second time through Hungary or Croatia.”

And to be fair, Frontex has at times previously acknowledged that its figures include double counting. See the press statement from 14 September reporting 500,000 migrants having been detected at the external border: “However, a large number of the persons detected at the Hungarian border with Serbia had already been counted when they arrived in Greece from Turkey a few weeks earlier.” But the fact remains that much of the news coverage generated by the Frontex data will not explain the double counting.

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Satellite Imagery Used by Frontex to Detect and Rescue Migrant Boats

While the use by Frontex of satellite imagery is not new, Frontex released a copy of a satellite image used last week to detect and rescue 370 people on Eurosur Fusion Services imageryboard three inflatable boats off the Libyan coast. (It is unclear whether the image made available by Frontex shows the actual spatial resolution available to Frontex.)

According to Frontex, the imagery is part of “Frontex’s Eurosur Fusion Services … made possible by the cooperation between experts at Frontex and the European Maritime Safety Agency (EMSA), Italian authorities and EUNAVFORMED. … The Eurosur [fusion] services already include automated large vessel tracking and detection capabilities, software functionalities allowing complex calculations for predicting positions and detecting suspicious activities of vessels, as well as precise weather and oceanographic forecasts. Fusion Services use optical and radar satellite technology to help locate vessels at sea. Recent upgrades of their technical capabilities make it possible to spot smaller vessels.”

Frontex has used satellite imagery for years, for example in 2008 during Frontex Operation Hera off Mauritania, Amnesty International reported that satellite photos would be presented to Mauritanian authorities to demonstrate that migrants on board a particular migrant boat had departed from Mauritania territory. (Amnesty International, “Mauritania: ‘Nobody Wants to Have Anything to Do With Us,’ Arrests and Collective Expulsions of Migrants Denied Entry Into Europe,” 1 July 2008.)

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UN Security Council to Vote Today, 8 October, on Resolution Authorising EU to Inspect and Seize Vessels on High Seas Suspected of Engaging in Smuggling or Trafficking of Persons

From What’s in Blue: The Security Council “is expected to vote [on 8 Oct. 2015] on a resolution aimed at disrupting human trafficking and the smuggling of migrants on the high seas off the coast of Libya. …

The draft resolution authorises member states, acting nationally or through regional organisations, to inspect vessels on the high seas off the coast of Libya that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking. Furthermore, the draft authorises member states to seize vessels if there is confirmation that they are being used for migrant smuggling or human trafficking from Libya. These authorisations are for a period of one year from the date of the adoption, and the draft stresses how these are given in exceptional and specific circumstances. …

It seems that the two most divisive issues during negotiations related to references to Chapter VII and the use of force. Several Council members, including Chad, Russia and Venezuela, raised concerns over the implications of having a Chapter VII resolution with a broad mandate. Following bilateral negotiations, the draft to be voted on is under Chapter VII but states that this is specifically to put an end to the recent ‘proliferation of, and endangerment of lives by, the smuggling of migrants and trafficking of persons in the Mediterranean sea off the coast of Libya’. …

In relation to the use of force, one of the difficulties was defining the instances in which member states are authorised to use force. The initial draft circulated by the UK included an authorisation to use ‘all necessary measures’ in confronting migrant smugglers or human traffickers. Some Council members wanted further guarantees that this was not a blanket mandate to use force. As a result of the members’ concerns compromise language was added to authorise member states to use ‘all measures commensurate to the specific circumstances’ in confronting them. …

While Council negotiations were put on hold during the high-level debate of the UN General Assembly, amendments were made to the draft in order to secure the consent of the Libyan permanent mission to the UN. …

Some Council members stressed the need to respect international refugee law, as well as the protection of the rights of migrants and asylum seekers. The draft underscores that it is not intended to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.

The resolution is expected to provide legal backing for the EU NAVFOR MED’s operation in the high seas (which was renamed Operation Sophia on 28 September). … Council negotiations over a draft resolution authorising such an operation earlier this year (April-May) were put on hold following difficulties getting consent from Libyan authorities to operate in the territorial waters of Libya and its shore. Following the humanitarian crisis in the Mediterranean this summer, EU Council members decided to narrow the scope of the resolution to vessels operating on the high seas off the coast of Libya. A subsequent phase of the deployment of the operation in the territorial waters and on the shore of Libya is likely to be contingent upon the formation of a government of national accord in Libya.”

Full text of What’s in Blue article here.

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Filed under European Union, Frontex, Italy, Libya, Mediterranean, News, UN Security Council, United Nations

UN Security Council is Again Discussing Resolution to Authorise EU Use of Force Against Migrant Vessels

What’s in Blue and the New York Times report that “it appears that EU [Security] Council members are currently discussing with non-EU P5 members a draft resolution authorising EU NAVFOR Med to intercept boats used by human trafficking networks on the high seas of the Mediterranean.”

NY Times: The resolution “would authorize military action on a specific route on the high seas from the coast of Libya north to Italy. The proposal is a significant step down from what the European leaders originally wanted: the Council’s blessing to conduct military operations along the Libyan coast, on land and water, to seize and disrupt the smugglers. …  According to one Security Council diplomat, the resolution would allow for boats to be seized and for the people on board to be taken to Italy, where the authorities would determine who among them might be eligible for asylum because they were fleeing war or persecution….”

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Frontex Director: EU Military Operation Near Libya May Shift Migration Routes to Eastern Mediterranean

In an interview published earlier this week in Les Echos, Frontex Director Fabrice Leggeri noted that there already exists a small shift in migration flows from the central Mediterranean to the eastern Mediterranean: “The pressure is growing stronger on the eastern Mediterranean. … Since early 2015, and before last weekend, there were slightly more arrivals from Turkey: 40.000 irregular crossing in the Greek islands, against 37,000 in Italy. The number of Syrian refugees is decreasing steadily in Italy. Syrian families prefer to avoid Libya because the security conditions there have worsened significantly. The smugglers are much more violent in Libya.”

[“La pression est de plus en forte sur la Méditerranée orientale. … Depuis le début 2015, et avant le week-end dernier, il y avait légèrement plus d’arrivées en provenance de Turquie : 40.000 franchissement irréguliers dans les îles grecques, contre 37.000 en Italie. Le nombre de réfugiés syriens diminue de manière constante en Italie. Les familles syriennes préfèrent éviter la Libye car les conditions de sécurité s’y sont nettement dégradées. Les passeurs sont beaucoup plus violents en Libye.”]

Director Leggeri noted that an EU military operation near Libya may simply move some of the migration flow further to the east: “Migration routes are extremely flexible and can change rapidly. There is strong pressure [migratory] on the European Union in general from those who come from the African continent and the Middle East. … If there is a military operation in the vicinity of Libya, this may change the migration routes and make them move to the eastern route.”

[“Les routes migratoires sont extrêmement flexibles et peuvent se modifier rapidement. Il y a une forte pression sur l’Union européenne de manière générale qui vient du continent africain et du Proche-Orient. … S’il y a une opération militaire au voisinage de la Libye, cela peut changer les routes migratoires et les faire basculer vers la route de l’Est.”]

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