Human Rights Watch Letter to Frontex Executive Director Mr. Hans Leijtens

Dear Mr. Leijtens, 

On behalf of Human Rights Watch, I would like to extend my congratulations on your recent appointment as Executive Director of the European Border and Coast Guard Agency, Frontex.

We welcome your statements to the media on your commitment to restore trust in Frontex and for the agency to operate under the fundamental principles of accountability, respect for human rights and transparency.

As you assume leadership of Frontex, we are writing to draw your attention to some pressing human rights challenges facing the agency that we hope you will address as a priority. We believe this is a critical moment to ensure Frontex is putting respect for fundamental rights front and center, in line with its mandate and responsibilities.

Frontex’s complicity in abuses

In December 2022, Human Rights Watch released the report “Airborne Complicity – Frontex Aerial Surveillance Enables Abuse”, which concluded that the agency’s aerial surveillance in the central Mediterranean is implemented not to assist the rescue of people in distress but to prevent them from reaching EU territory.[1] Human Rights Watch’s report documented how Frontex’s use of its aerial surveillance, which includes a deliberately narrow interpretation of distress and a failure to alert nearby rescue ships and other vessels for most boats detected, does not have any meaningful impact on the death rate. Instead, its use of aerial surveillance facilitates interceptions by abusive Libyan coast guard forces who in 2022 alone, forcibly returned more than 32,000 children, men and women to serious abuses in Libya, 10,000 of which were directly facilitated by the agency. Changing this approach is essential to ending Frontex complicity with grave abuses.

In June 2021, Human Rights Watch released the report “Frontex Failing to Protect People at EU Borders” that concluded that Frontex’s multiple oversight mechanisms failed to safeguard people against serious human rights violations at the EU’s external borders.[2] We found that Frontex’s oversight, reporting, and monitoring mechanisms failed to ensure that its officers do not engage in abuse, are held accountable if they do, and that Frontex is not complicit in abuse by EU member states.

The need for bolder action

Since the publication of our 2021 report, Frontex has taken some important steps towards ensuring that it operates in accordance with EU and international human rights law standards, including by hiring fundamental rights monitors and a fundamental rights officer, and adopting a fundamental rights action plan. But concerns remain on the real impact of those steps with respect to unlawful pushbacks and human rights violations in countries where Frontex operates, and on the way in which concerns expressed and measures recommended by the Fundamental Rights Officer have been taken into account in the context of Frontex’s operational activities.

It is critical to take bold actions in the context of the agency’s border operations, by re-evaluating Frontex’s approach with respect to human rights violations taking place at the EU’s external borders where it operates, including by suspending or terminating operations in case where serious abuses are well documented, such as in Greece and Croatia. At the very least, the Frontex Executive Director should demonstrate more transparency on actions taken under Article 46 following recommendations brought forward by the Fundamental Rights Officer. While we acknowledge that Frontex’s presence can sometimes help reduce abuses, we believe that if Frontex maintains a presence where abuses are taking place on an ongoing basis, it risks enabling or becoming complicit in that abuse, rather than playing a positive or deterring role. As part of its human rights responsibilities and as an EU agency bound by the Charter of Fundamental Rights, Frontex should uphold the EU’s human rights obligations.

In the Central Mediterranean, we believe it is equally paramount that Frontex takes all appropriate measures to ensure it is not complicit with abusive Libyan coast guard forces in the interception and return of people to Libya where they are subject to arbitrary detention and well-documented widespread and systematic abuses, including torture, forced labor, exploitation, and other horrific abuses. In September 2022, the Prosecutor of the International Criminal Court stated that crimes against migrants and asylum seekers in Libya “may constitute crimes against humanity and war crimes.” We have called on EU institutions to ensure that people are not returned to places where they would face the risk of abuse, lack of access to international protection, and inhuman and degrading conditions of detention.

Key reforms moving forward

Reforms are needed, and Frontex leadership should be clear that these reforms would lead truly to ending abuses where Frontex operates or duly responds to allegations of complicity. Indeed, Frontex should ensure that there is more transparency and understanding of credible actions taken to prevent abuses by its own officers or officers of the host countries and how it responds to allegations of violations. The following recommendations are drawn from our work on Frontex in recent years:

• Given the criticisms of Frontex’ own mechanisms in recent years, there is a need to ensure that Frontex’s Fundamental Rights Office (FRO) and Monitors are genuinely independent and that reports and recommendations from the FRO are acted on by the Frontex Executive Director and the agency as a whole. The Executive Director should demonstrate full transparency by responding publicly to concerns or recommendations brought forward in relation to his responsibility under Article 46. Should concerns arise related to the response of Frontex and the Executive Director to FRO recommendations, we have recommended in the past a credible, independent oversight mechanism be set up to assess whether the FRO and Fundamental Rights Monitors (FRMs) are able to carry out their role credibly and independently and that Frontex acts effectively upon their findings and recommendations.
• The FRO should not only act on Serious Incident Reports or Complaints filed in Frontex’ own mechanism – but should also proactively consider allegations of abuse and reports from international and regional organizations, nongovernmental groups, civil society, and the media.
• The FRO and FRMs should have in-situ access without obstacles from the host country or Frontex itself.
• The FRO and FRMs should have confidential access to victims of abuses, including where feasible to those who have been pushed back.
• The findings, assessments, and recommendations of the FRO should be made public – including when feeding into the Executive Director assessment into the Article 46 due diligence obligation.
• Reforms are needed to give effect to Article 46 as a safeguard to ensure Frontex acts in accordance with its mandate and fundamental rights obligations. This requires a systematic assessment of the risk of Frontex’s complicity in human rights violations in all its operations. Under Article 46, the Executive Director should ensure:
  • Clarity and transparency about which information was considered when evaluating whether there are serious and persistent violations that would justify decisions to suspend, terminate or not launch activities.
  • Decisions take into account not only reports by EU agencies or international organizations, but also those by monitoring nongovernmental groups and investigative media.
  • Transparency about assessments, conclusions, and recommendations for remedial measures; as well as which criteria or timeline were considered.
  • Transparency about which level of continued monitoring is applied to ongoing operations.
• Finally, scrutiny is key: we recommend the creation of a system for joint parliamentary scrutiny by the European Parliament and national parliaments, like that in place for Europol, under article 112 of the 2019 Frontex regulation. This would ensure political oversight of the activities of Frontex in the fulfillment of its mission, including with respect to the impact of Frontex’s activities on fundamental rights.

With regards to Frontex’ aerial surveillance in the Central Mediterranean, the agency should carry out a thorough, credible, and transparent assessment of the human rights impact of its activities and implement the following minimum interim steps:

• Review rules and practices associated with aerial surveillance to ensure it is used in genuine service of rescue and in compliance with international human rights law;  
• Immediately alert all nearby civil and commercial vessels of any boat in distress, applying this definition broadly to all migrants’ unseaworthy boats;
• Keep aerial assets in the area to monitor people’s condition and document subsequent rescues or interceptions; and
• Deploy its naval assets in the same areas surveilled by its aircraft to intervene promptly to rescue people and prevent unlawful returns to Libya.

We look forward to constructive engagement with you and your team, including around ways to strengthen accountability mechanisms for Frontex. We would welcome an opportunity to meet to discuss these important issues.

Sincerely,

Tirana Hassan