Deniability? Frontex and Border Violence in the EU

Blog post by Dr Elif Kuskonmaz University of Portsmouth and Professor Elspeth Guild Queen Mary University of London

Both the media and academic worlds have been increasingly galvanized by evidence of extreme border violence at the EU’s external borders. This violence has been documented in many ways, reporters’ eye witness accounts, videos etc, yet in response to these allegations the Frontex Director has firmly denied any Frontex involvement and only admitted that perhaps Frontex officers might have seen unlawful acts of violence against migrants on one or two occasions. Without more proof, the European Parliament’s specialised committee on Frontex accepted for the moment this position.  

Yet, the reports of violence against people cross EU external borders continue to flow in. In particular, the Greek-Turkish border has become a place of systemic violence against migrants with no move towards accountability in sight for the moment. The Mediterranean Sea around Italy’s southern coasts has also been a site of pushbacks and border violence for many years now. Recently, violence by board guards against people trying to cross borders have caught international attention as events have unfolded on the Belarusian-Poland and Lithuanian borders – but in this case the Polish and Lithuanian authorities have not even tried to hide their actions, from Ministerial instructions to border guards to force people seeking asylum across the border into Belarus, to the actions of border guards which have contributed to the loss of life at that border (the Polish authorities have declined the offer of assistance made by the Frontex director to assist).  Violence is also now taking place at the Franco-British border as would be refugees take to little unseaworthy boats seeking to cross the Channel and encounter violence by French gendarme trying to stop them from leaving, an activity for which the UK pays the French authorities royally. Once again the French Interior minister has denied that the events, occur at all.  

These reports, no matter how well documented, result in the officials denying that the incidents occurred. This stonewalling has so far been surprisingly effective, even as regards the multiple inquiries instigated by the European Parliament’s LIBE Committee and the European Ombudsman. However, things may be changing. First, there are a slowly increasing number of prosecutions of officials for border violence. The best known is the Italian prosecution, yet to be completed, of the former Interior Minister Salvini for closing the southern Italian ports to rescue boats to prevent disembarkation. There has also been a sprinkling of prosecutions for failure to rescue in Italy and some information about prosecutions in Spain and Greece.  

However, deniability of border guard violence just got a lot more difficult in Europe as a result of events at the end of November 2021. Here, instead of the object of the violence being an ‘unidentified’ migrant, it was a Frontex employed translator who was the victim. His individual complaint to the Frontex Complaint Mechanism depicts how he was pulled off a bus on his way to Thessaloniki, beaten, stripped, and taken to a warehouse with other 100 people (see here and here for news reports). He was later forced to cross the Evros river, which is the natural land border between Greece and Turkey, to Turkey. While the Greek Ombudsman launched an investigation in December 2021 following the individual complaint, it was reported that the Greek government disputed the facts.  

This complaint of border violence at the Greek-Turkish border is not a sole incident. The similar accounts can be found in some earlier reports by the European Committee for the Prevention of Torture (CPT), the NGOs such as Border Violence Monitoring Network and Amnesty International, and the Istanbul Bar Association. These reports were drafted in response to the re-escalation of the mistreatment of migrants in the Evros region following the announcement of the Turkish government in late February 2020 that it would not stop migrants wishing to cross the border into the EU – something it has done since 2016 following the infamous EU-Turkey Migration Agreement, to pressure Russia to stop supporting Damascus and agree to a ceasefire. According to witness statements (and as reported in the news) Turkey has been facilitating (sometimes forcefully) migrants to cross the Evros river in large groups since this announcement. As the clashes between migrants and the Greek police erupted at the Greek-Turkish land border, in March 2020, the Greek government announced the suspension of asylum applications for a month on national security grounds (see here for the decree). Accounts of migrants (as the subject of and witness to the mistreatment) such as those included in the CPT and the Human Rights Watch describe encountering people in military or police uniforms wearing balaclavas to hide their faces on the Greek side of the border. In December 2020, the Greek Ombudsman published an interim report, acknowledging a pattern of illegal pushbacks and ill-treatment. The Ombudsman was not adamant in spelling out who had been involved in these actions, while speaking about the direct or indirect involvement of the Greek police and the possibility of the involvement of private groups and militias. To address the complaints regarding the illegal pushbacks and mistreatment of migrants, he urged the Greek police to investigate each allegation and develop a plan to effectively address the possible involvement of other actors in such allegations.  

As far as states’ obligations under the European Convention on Human Rights (ECHR) is concerned, conducting independent and effective investigations for the allegations of human right violations is one such state obligation to investigate deaths, allegations of ill-treatment, and disappearances. States also have an obligation to take measures to safeguards the lives of individuals within their jurisdiction (as per Article 2 ECHR) and to ensure that they are not subjected to ill-treatment (as per Article 3 ECHR). States thus become complicit in border violence when they know or should have known the ill-treatment of migrants or risk to their lives (supported by the information in public domain), but have done nothing to stop human rights abuses. Denial of responsibility before the European Court of Human Rights (ECtHR) based on the absence of jurisdiction has been the strategy of some states for the allegations of human rights violations relating to border and immigration management. Generally, the Court has rejected these types of claims based on the meaning of (extraterritorial) jurisdiction for the purpose of the ECHR where state authorities have exercised authority over people who were affected by the measure complained of.  

What happens when states deny the facts relating to the human rights violations themselves? The state strategy to deny accountability through disputing the facts persistently (generally because they claim to have been unaware of the conduct of their agents, or they were operating outside orders) in common and at the moment fairly successful as regards border violence. Yet this may change as courts, in particular the European Court of Human Rights, has developed an increasingly robust doctrine on assessment of facts to defeat cultures of ‘deniability. The most infamous example of such denial is the cases relating to extraordinary rendition and the complicity of some European states (Signatory Parties to the ECHR) with the US intelligence agency, CIA, for the secretive operations of detention and ill-treatment of people who had been supposedly identified as person of interest for their involvement in terrorist activities. In the El-Masri case, the applicant complained of Article 3 ECHR (prohibition of torture and ill-treatment), Article 5 ECHR (right to liberty and security), and Article 8 ECHR (right to respect for private and family life) in relation to his detention in Skopje by state agents before being handed over to the US agents to be detained and interrogated in Afghanistan.  

The defendant Macedonian Government denied the involvement of its agents, especially as regards collaboration with the US agency, and submitted that the applicant stayed in and left the country on his free will (paras 40-41). The ECtHR upheld the facts and events described by the applicant despite the conflicting evidence submitted by both parties. The applicant’s account, which according to the ECtHR was very detailed, was supported by scientific evidence, expert opinions, and international inquiries (paras 157-161). According to the ECtHR’s settled case-law, the onus was on the Government to provide a satisfactory and convincing explanations of injuries and deaths occurring during detention because it has the exclusive knowledge of the events occurring during this period (para 152). The Government, however, failed to demonstrate why the evidence corroborated the applicant’s account of events rather than that of the state. Equally important in the El-Masri case was the ECtHR’s reference to the ‘right to truth’ whereby not only the applicant, but also the general public has the right to know what has happened, which was not satisfied due to the lack of effective investigation for public authorities’ treatment of the applicant contrary to Article 3 ECHR.  

In the face of growing accounts of border violence, it is incumbent upon states to monitor and investigate the allegations of ill-treatment and illegal pushbacks at borders. They cannot avoid accountability by denying the involvement of their agents or seeking to displace responsibility to the other ‘complicit’ agents. For the moment, it is important to have an overall strategy of linking up incidents of border violence and human rights abuses and establish an effective oversight for the distribution of responsibility for each actor.    

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This post was originally published on Refugee Law Initiative Blog.