“Frontex is complicit in abuses in Libya”: aerial surveillance facilitates the interception of migrants, their refoulement and a return to violence

BRUSSELS – The use by the EU Border Guard Agency, Frontexof aerial surveillance to allow the Libyan Coast Guard to intercept migrant boats, knowing that they will suffer systematic violence once they are forcibly returned to Libya, Frontex complicit in such abuses, they declared Human Rights Watch And Border Forensics in a multimedia article published today. Thanks to a careful analysis of the data and various direct testimonies, the interactive web survey “Airborne Complicity: Frontex Aerial Surveillance Enables Abuse” documents the role that Frontex-operated aircraft – several aircraft and a drone – play in detecting migrant boats in the central Mediterranean and their subsequent interception by Libyan forces. The aircraft, operated by private companies, transmit video and other information to a situation center in the headquarters of Frontex in Warsaw, where operational decisions are made on when and who to alert about the presence of migrant boats.

But they say “air control saves lives”. Although Frontex argues that aerial surveillance saves lives, the analysis of Human Rights Watch And Border Forensics demonstrates how the latter is functional to the interceptions of migrants and asylum seekers by the Libyan forces, rather than their rescue by civilian rescue organizations or merchant ships operating in the area. “By alerting the Libyan authorities to the presence of boats carrying migrants, knowing that they will be subjected to atrocious treatment and having other options,” says Judith Sunderland, associate director for Europe and Central Asia at Human Rights Watch – Frontex is in fact complicit in the abuses. The rhetoric about saving lives will remain tragically empty until the Agency uses the technology and information at its disposal to ensure people are rescued promptly and disembarked in safe harbours,” added Sunderland.

The real purpose is to drive them back. The analysis of the available data supports the conclusion that the approach of Frontex it is not designed to rescue those in distress at sea, but to prevent them from reaching EU territory, the organizations said. Statistics indicate that aerial surveillance did not have a significant impact on the fatality rate. However, there is a moderate and statistically significant correlation between the presence of Frontex aircraft and the number of interceptions carried out by the Libyan Coast Guard: on days when aircraft fly over their area of ​​operation for several hours, the Libyan Coast Guard tends to intercept more boats.

Complaint to the International Criminal Court. On 29 November, the European Center for Constitutional and Human Rights (European Center for Constitutional and Human Rights, ECCHR) filed a complaint with the International Criminal Court (ICC) highlighting European responsibility for crimes against humanity committed against migrants and refugees in Libya. Border Forensics And Human Rights Watch reconstructed the events that occurred on July 30, 2021, when several boats carrying migrants were intercepted by the Libyan Coast Guard. This was done by cross-referencing official and open-source data, including drone and aircraft flight paths, together with information provided by Sea Watcha civilian salvage organization that had a ship at sea and a plane in the air that day, and from Alarm Phonean emergency telephone line for migrants in distress at sea, together with testimonies from survivors.

The remotely piloted Heron drone. Frontex uses an Israeli-made remotely piloted Heron drone designed for intelligence gathering and surveillance, because it can fly for many hours off the Libyan coast. The tracks of the drone on that day indicate that it most likely sighted at least two boats which were then intercepted by the Libyan Coast Guard. The rescue ship Sea Watch 3who had not received any distress calls from Frontexaccidentally witnessed the interception of one of them.

Frontex violations of maritime law. The decision not to inform civil rescue organizations of the presence of boats in distress or to raise an alarm mayday to all vessels in the area illustrates the deliberately restrictive interpretation of Frontex of the concept of ‘distress’, the organizations said. Doing so only in cases where there is a risk of imminent loss of life conflicts with relevant maritime law and the EU regulation on maritime border surveillance, as well as the unanimous opinions of the Office of the High United Nations Commissioner for Human Rights and the United Nations High Commissioner for Refugees. According to Frontex, between January 2020 and April 2022, the agency issued 21 alerts mayday in the central Mediterranean, i.e. for only a fraction of the 433 sightings that the Agency itself claims to have made thanks to its aerial surveillance in the central Mediterranean in 2021 alone. In that year, Frontex facilitated the operations of the Libyan Coast Guard which led to the forced repatriation of around 10,000 people, almost a third of the more than 32,000 people landed in Libya.

The lack of transparency. The lack of transparency of Frontex it makes fact-checking and direct accountability difficult, the organizations said. In examining 27 of the 30 submitted civic access requests – the rest are pending – Frontex identified thousands of relevant documents, but provided only 86. Many were heavily censored. Frontex has refused requests to visit the situation center in Warsaw and to speak with operational staff. “Faced with the fundamental opacity of Frontexwe have analyzed a vast series of flight paths and many other data to reconstruct the surveillance activities in the sky – said Giovanna Reder, investigator responsible for this investigation for Border Forensics – our analysis clearly suggests that the drone has played a key role in returning potentially hundreds of people to Libya, condemning them to abuse and violence. The Border Agency and the EU Member States should be held accountable”.

Two obligations to be reconciled. Aerial surveillance is a central element of the EU strategy which aims to prevent migrants and asylum seekers from reaching Europe by sea, and allows the Union to evade its responsibilities spatially, physically and legally. European authorities have established an extensive and dense network of aerial surveillance over the central Mediterranean, while gradually withdrawing their rescue vessels from the area, handing over responsibility to Libyan forces and hampering non-governmental rescue groups in their essential work of rescue. Frontex underlines its obligation under maritime law to alert the competent coastal authorities in case of dangerous situations at sea, but this obligation needs to be balanced with its obligations under regional and international human rights law, in particular obligations relating to the right to life, the prohibition of torture and cruel, inhuman and degrading treatment or punishment, and the consequent prohibition of return to places where migrants are exposed to the risk of torture, persecution and other serious harm under the laws on human rights and asylum.

The EU must reorient its migration policy. As long as the operations of Frontex be designed to allow interceptions by Libyan forces, the border agency and the EU will have to be held accountable for their role in the abuses suffered by people returned to Libya, the organizations said. L’Agency it should put in place effective measures to fulfill its obligation to assess whether its activities, including aerial surveillance, violate fundamental rights. This should include greater transparency and accountability in its operations. The EU should radically refocus its migration policy towards establishing safe and legal channels for migrants and refocus its activities in the central Mediterranean and cooperation with Libyan authorities to make sure people are not returned to places where they run ‘very high risk of suffering abuse and inhuman and degrading conditions of detention, and not having access to international protection.

Avoid the risk of migrants returning to Libya. Meanwhile, theAgencywith the support of the EU and all Member States, should use aerial surveillance to meaningfully and genuinely support sea rescue and prevent the risk of people being returned to Libya. Frontex, Italy and Malta should alert all vessels that are in the vicinity of a vessel in need of assistance, based on a broad definition that considers all vessels that are overcrowded and unseaworthy in open waters as endangered. L’Agency and member states should deploy their ships in areas where their aircraft operate, so that they can respond directly and quickly to distress situations, and should stop attacking non-governmental groups that do. Also, unless called by other emergencies, when aircraft and drones used for surveillance spot vessels, they should remain on the scene to monitor their situation and document rescue or intercept operations.