Since March the EU’s main naval mission in the area, Operation Sophia, has withdrawn its ships from waters where the majority of migrant boats have sunk. While Sophia was not primarily a search-and-rescue mission, it was obliged under international and EU law to assist vessels in distress. The switch to drones is part of an apparent effort to monitor the Mediterranean without being pulled into rescue missions that deliver migrants to European shores.
Marta Foresti, director of the Human Mobility Initiative at the Overseas Development Institute, an influential UK thinktank, said Europe had replaced migration policy with panic, with potentially lethal consequences. “We panicked in 2015 and that panic has turned into security budgets,” she said. “Frontex’s budget has doubled with very little oversight or design. It’s a knee-jerk reaction.”
The strategy has seen Frontex, based in Warsaw, and its sister agency, the European Maritime Safety Agency, based in Lisbon, invest in pilotless aerial vehicles. The Observer has found three contracts – two under EMSA and one under Frontex – totalling £95m for drones that can supply intelligence to Frontex.
The models include the Hermes, made by Elbit Systems, Israel’s biggest privately owned arms manufacturer, and the Heron, produced by Israel Aerospace Industries, a state-owned company. Both models were developed for use in combat missions in the occupied Palestinian territory of Gaza. Frontex said its drone suppliers met all “EU procurement rules and guidelines”.
There is mounting concern both over how Frontex is spending EU taxpayers’ money and how it can be held accountable. The migration panic roiling Europe’s politics has been a boon for a once unfashionable EU outpost that coordinated national coastal and border guards. Ten years ago Frontex’s budget was £79m. In the latest budget cycle it has been awarded £10.4bn.
Demand from member states for its services have largely been driven by its role in coordinating and carrying out deportations. The expansion of the deportation machine has caused concern among institutions tasked with monitoring the forced returns missions: a group of national ombudsmen, independent watchdogs appointed in all EU member states to safeguard human rights, has announced plans to begin its own independent monitoring group. The move follows frustration with the way their reports on past missions have been handled by Frontex.
Andreas Pottakis, Greece’s ombudsman, is among those calling for an end to the agency policing itself: “Internal monitoring of Frontex by Frontex cannot substitute for the need for external monitoring by independent bodies. This is the only way the demand for transparency can be met and that the EU administration can effectively be held into account.”
The Frontex Consultative Forum, a body offering strategic advice to Frontex’s management board on how the agency can improve respect for fundamental rights, has also severely criticised it for a sloppy approach to accountability. An online archive of all Frontex operations, which was used by independent researchers, was recently removed.
The switch to drones in the Mediterranean has also led to Frontex being accused of feeding intelligence on the position of migrant boats to Libya’s coast guards so they can intercept and return them to Libya. Although it receives EU funds, the Libyan coast guard remains a loosely defined outfit that often overlaps with smuggling gangs and detention centre owners.
“The Libyan coast guard never patrols the sea,” said Tamino Böhm of the German rescue charity Sea-Watch. “They never leave port unless there is a boat to head to for a pullback. This means the information they have comes from the surveillance flights of Italy, Frontex and the EU.”
A Frontex spokesperson said that incidents related to boats in distress were passed to the “responsible rescue coordination centre and to the neighbouring ones for situational awareness and potential coordination”. Thus the maritime rescue coordination centre in Rome has begun to share information with its Libyan counterpart in Tripoli, under the instructions of Italy’s far-right interior minister, Matteo Salvini.
The EU is already accused of crimes against humanity in a submission before the International Criminal Court for “orchestrating a policy of forced transfer to concentration camp-like detention facilities [in Libya] where atrocious crimes are committed”.
The case, brought by lawyers based in Paris, seeks to demonstrate that many of the people intercepted have faced human rights abuses ranging from slavery to torture and murder after being returned to Libya.
Omer Shatz, an Israeli who teaches at Sciences Po university in Paris, and one of the two lawyers who brought the ICC case, said Frontex drone operators could be criminally liable for aiding pullbacks. “A drone operator that is aware of a migrant boat in distress is obliged to secure fundamental rights to life, body integrity, liberty and dignity. This means she has to take actions intended to search, rescue and disembark those rescued at safe port. Acting to extradite helpless vulnerable civilians to the hands of Libyan militias may amount to criminal liability.”
After publication, Frontex disputed this view, saying: “It is never a drone operator or a pilot assessing whether a vessel is in distress and where it should be disembarked. In the case of the two planes used by Frontex to monitor the Central Mediterranean, the video is live-streamed to the agency’s headquarters, where a group of experts, including maritime surveillance experts, analyse the image and make an initial assessment whether a case can be qualified as SAR based on certain parameters (number of people on board, condition on boat, distance from shore, presence of life vests, weather conditions). This initial assessment is communicated to the maritime search and rescue center (MRCC) for further action.”
Under international law, migrants rescued at sea by European vessels cannot be returned to Libya, where conflict and human rights abuses mean the UN has stated there is no safe port. Under the UN convention on the law of the sea (Unclos) all ships are obliged to report an encounter with a vessel in distress and offer assistance. This is partly why EU naval missions that were not mandated to conduct rescue missions found themselves pitched into them regardless.
Drones, however, operate in a legal grey zone not covered by Unclos. The situation for private contractors to EU agencies, as in some of the current drone operations, is even less clear.
Frontex told the Observer that all drone operators, staff or private contractors are subject to EU laws that mandate the protection of human life. The agency said it was unable to share a copy of the mission instructions given to drone operators that would tell them what to do in the event of encountering a boat in distress, asking the Observer to submit a freedom of information request. The agency said drones had encountered boats in distress on only four occasions – all in June this year – in the central Mediterranean, and that none had led to a “serious incident report” – Frontex jargon for a red flag. When EU naval vessels were deployed in similar areas in previous years, multiple serious incidents were reported every month, according to documents seen by the Observer.
Reporting for this article was supported by the Returns Network, an investigative unit collaborating with ARD Report München, De Correspondent, EfSyn and the Observer
