On Nov 14th European Ombudsman, Emily O’Reilly, has closed its own-initiative inquiry against Frontex, concluding on Frontex’s view that human rights infringements are exclusively the responsibility of Member States (where Frontex operations take place) concerned, to be invalid.
The Ombudsman’s consideration goes into the heart of the argument between human and refugee rights defenders and the EC about the legal gap created in order to make Frontex a security structure that stands at the forefront of immigration policy making and border controls without ever being possible to be held accountable about human rights violations the policies and controls might produce.
The idea of the so called “legal gap” is simply based on a legalism (which is what essentially the Ombudsman has rejected), meaning that European Member States through a formal procedure claim authority and responsibility for every operation Frontex conducts on their borders. On the field this translates to an official of the local authority always being present during any Frontex operation or for example national authorities signing decisions made by Frontex personnel during screening. Thus Frontex can appear as a solicitor for any questionable actions occurring during its operations.
In its press release the Ombudsman explains the history of its inquiry as well as the disagreement that occurred with Frontex. It is obvious that Frontex has rejected the Ombudsman’s call for establishing a complaints mechanism because this would mean an indirect admission that it could be responsible for human rights violations, thus invalidating its own line of argument.
“In 2009, the Charter of Fundamental Rights became legally binding on Frontex, which is based in Warsaw. Since then, a number of civil society organisations as well as the Parliamentary Assembly of the Council of Europe have questioned whether Frontex is doing enough to comply with the Charter. One example given was its deployment of EU border guards to Greece where migrant detainees were kept in detention centres under unacceptable conditions.
In 2011, the European Parliament and the Council of the EU adopted a Regulation setting out specific additional fundamental rights obligations for Frontex. In 2012, the Ombudsman asked Frontex a number of questions about how it is fulfilling these obligations and launched a public consultation which gathered contributions from citizens, human rights NGOs and other organisations. Frontex replied that it had taken several measures, including the creation of a fundamental rights strategy, a fundamental rights officer and codes of conduct for its operations.
The Ombudsman found that, in general, Frontex was making reasonable progress in addressing fundamental rights issues. She recommended, however, that Frontex establish a complaints mechanism.
Frontex rejected this recommendation with the argument that individual incidents are the responsibility of the respective Member State. Emily O’Reilly disagreed and submitted a Special Report to the European Parliament, asking for its support in persuading Frontex to review its approach”.
Responsibility or involvement of European officials or structures for human rights infringements is constantly and consistently denied by European officials whenever it occurs as an issue. The political objective of this stance is this of externalizing responsibility to Member States while the European Commission is gradually becoming the main decision maker over policy and border controls issues. The case of Greece manifests this political issue in the best possible way. While Greece the last two years is regularly denounced by human rights organizations for an en mass detention policy of irregular migrants and asylum seekers, inhuman detention conditions, push backs of refugees at the sea and its territorial borders, the EC that plays a key role on shaping, financing and monitoring these policies believes and insists it should be exempted from any responsibility. Meanwhile during 2013 the EC has restructured its institutional infrastructure to allow for a more extended and effective use of funds it has made available for immigration control to Member States. Still many of the funded operations have been connected to severe violations of human and asylum rights.
You can read all the history of the Ombudsman’s inquiry here.
For a characteristic case of the argumentation used by the EC on the issue of responsibility see this interview with EU Home Affairs Commissioner spokesperson Michele Cercone
For more on how EC officials have turned a blind eye on violations of human rights read this (two parts) investigation Officials turn blind eye to abuse of asylum seekers and European Commission bankrolls anti-immigrant policies