A Fig Leaf: the Frontex accountability regime

[by Lena Karamanidou, researcher] 13 December 2021 – Since 2011, Frontex has established several accountability mechanisms to address the widespread concerns about the Agency’s human rights record. The collective function of the six accountability mechanisms – the Serious Incident Reporting system, Forced Return Monitors, the Fundamental Rights Officer (FRO) and the Consultative Forum, all established in 2011, the Individual Complaints mechanism introduced in 2016, and Fundamental Rights Monitors (FRMs) in 2019 – is to monitor and report fundamental rights violations in the context of Frontex’s operations and strengthen compliance with fundamental rights obligations. In addition to these internal administrative mechanisms Frontex is accountable to other institutions, such as the European Parliament, the Council and courts.

The effectiveness of the Frontex human rights record and accountability regime has always been questioned, but in the course of the investigations into Frontex that have taken place in the last year, it has become clearer than ever that the accountability regime acts as a fig leaf. Rather than documenting violations and violence at the borders of the European Union, it conceals them. Rather than preventing violence – assuming this is possible since the institution of the border is inherently violent and racist – they have been used to exonerate Frontex from any wrongdoing and to legitimatize the violence and violations perpetrated by the EU and its member states.

A first example of how this happens is that the information produced by mechanisms such as the Serious Incident Reporting system has been used to underplay violence and violations of human rights. In 2017, Executive Director Fabrice Leggeri rejected the recommendations of the Consultative Forum and the Fundamental Rights Officer, citing that there were only three serious incident reports concerning human right violations. National governments have cited the absence of reported violations by Frontex to deny illegal practices at their borders. In 2020, Commission President Ursula von der Leyen responded to a letter by MEPs raising concerns about shootings and deaths at the Greek- Turkish borders by citing the absence of any Serious Incident Reports. Yet, within Frontex, it was known for years that very few Incident Reports [SIRs) on human rights violations were submitted by Frontex officers. When submitted they were sometimes misclassified in categories other than human rights violations. The FRO was not always informed. We know now there was a culture of discouraging the submission of SIRs. Yet, this flawed system was used as evidence to claims by Frontex and EU actors to dismiss or deny concerns of violations and violence at European borders.

Conversely, the input of mechanisms such as the Consultative Forum and the Fundamental Rights Office has been ignored when inconvenient for the preferred course of action by Frontex. This is enabled by the very design of these mechanisms: the Consultative Forum is an advisory body, while the FRO, although independent in the performance of their tasks, has no decision-making powers. It is the Executive Director who decides, and to an extend the Management Board, comprised of representatives of interior ministries and border guards of member states and representatives of the European Commission. When the Consultative Forum recommended that Frontex withdrew from operations in Hungary because of serious and widespread human rights violations, including of access to asylum and the principle of non-refoulement, he did not – it was only after a decision by the Court of Justice that Frontex decided to withdraw from operations at Hungarian borders, even though it continued to participate in return operations. FRO recommendations on the 2020 Rapid Border Interventions in Evros and the Aegean, expressing concerns for compliance with human rights, were not adopted. The new appointed FRO, Jonas Grimheden, recently suggested that his recommendations are taken into account.

There have been many more indications that human rights accountability has never been high in the Agency’s priorities. Both mechanisms faced issues of under-resourcing, in particular the FRO. In January 2021, PICUM, one of the members of the Consultative Forum, withdrew its membership citing concerns both on the Frontex’s human rights record and on the cooperation between the Forum and the Agency. It’s now apparent that there have been many tensions between the Executive Director Fabrice Leggeri and the Fundamental Rights Office, resistance to the independence and growing of the FRO accorded by Frontex regulation and mishandling and delays of the recruitment of FRMs and a new FRO. Thus, the existence of monitoring and accountability mechanisms is invoked when Frontex faces human rights criticisms, but in practice the information they produced is used instrumentally or ignored because the imbalance of powers in the legal framework of Frontex makes it possible to do so.

Further, Frontex evades accountability by directing responsibility for human rights violations towards the border guards of member states. As has been frequently argued, it is extremely difficult to hold Frontex responsible for the commission of or complicity to human rights violations . From a legal perspective, one key issue is that many actors – Frontex deployed officers, national officers, national commands – are involved in operations during which a human rights violation takes place. The responsibility of each of them is difficult to establish because it often depends on operational arrangements and decisions surrounded by a lack of transparency. Frontex have always argued that it is national forces that have primary responsibility for fundamental rights violations since they have operational command and that it has few powers over national authorities. This argument was made, for example, in relation to pushbacks in the Aegean when Frontex assets were involved. While it can be argued that Frontex has a degree of responsibility over violations that happen in its operational areas, it relies on national governments to investigate their own wrongdoings further adding to the absence of accountability. Unsurprisingly, national authorities tend to exonerate themselves, as the trail of communications feeding into the Management Board inquiry shows.

The Management Board inquiry, in response to a major media investigation, illustrated yet again the reliance on internal accountability arrangements and national authorities. Like the monitoring and accountability mechanisms mentioned above, the Management Board is an internal governance body. The inquiry was conducted by representatives – bar one from the Commission – of the national structures which guard the external borders alongside Frontex. The information it considered originated from Frontex and the national authorities themselves, without external verification. Based on such information, it exonerated Frontex and while it suggested some of the Aegean pushbacks incidents involved human rights violations by the Hellenic Coast Guard, near all incidents were closed. The second major inquiry into Frontex, conducted by a scrutiny working group (FSWG) of the LIBE Committee of the European Parliament was a far more rigorous, public process which invited a range of external actors to the hearings – journalists, human rights organisations, academic experts. Yet, both inquiries exonerated Frontex from ‘direct involvement’ in human rights violations, although the FSWG inquiry found that Frontex knew and failed to act about incidents of violations of human rights.

The effect of these inquiries, similarly to the existing mechanisms, was to create an illusion of accountability. A lot of attention and blame was directed at one person, Executive Director Fabrice Leggeri, rather than the legal frameworks, policies and practices that produce violations and failed accountability regimes – that, for example, have given so much power to the executive director. Both inquiries suggested minor reforms to mechanisms and practices in order to enhance accountability, but no structural changes which would need reforms of the legal framework. Yet, one of the biggest weaknesses of the accountability regime is that it relies on mechanisms that are internal to Frontex and not independent by legal design. In essence, Frontex is tasked with participating in the activities that produce human rights violations AND with monitoring, reporting and preventing them. We have seen that the second aim has been, for Frontex but also the EU and member states, far less important than the first.

This was evident in the inquiries, which showed that in the current political environment there is little appetite for the radical reform of Frontex – even less for defunding or abolition! – in EU and state policy making circles. The parliamentary investigation was set up as a Scrutiny Working Group instead of a full parliamentary inquiry because of objections by some political groups. In one of the sessions, Commissioner Ylva Johansson, commenting on the findings of the Management Board inquiry that there was no evidence to implicate Frontex in pushbacks went as far as saying that it was ‘the outcome we expected’ because ‘an EU agency should not infringe fundamental rights’.

This is no surprise: Frontex is a flagship institution for the project of EUropeanising the management of borders in Europe. The idea that the presence of Frontex is necessary for ensuring that human rights are respected at external borders and violations monitored and reported is a deeply entrenched one, despite all evidence to the contrary. Thus the inquiries and broader accountability arrangements do not challenge the raison d’être of Frontex but act as fig leaves, creating an impression that the Agency’s shortcomings have been addressed through the minor reforms suggested, restoring the myth of Frontex’s as a force for good at EU borders rather than as an active component of the inevitable violence of the border.

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