The General Court of the European Union (TGEU) has ruled against Frontex, the European border control agency, for denying the German NGO Sea Watch access to information related to a migrant interception operation in the Mediterranean in which the Libyan coast guard was involved on July 30, 2021. According to Sea Watch, documentation that Frontex holds and refuses to share demonstrates how the agency facilitated a Libyan coast guard patrol vessel to enter Malta’s territorial waters and force a drifting boat with 20 migrants on board to turn around and return to Libya instead of taking them to the nearest safe port, in this case Malta. This is a violation of maritime and international law because Libya is not considered a safe port.
Frontex identified 73 documents, images and one video, including several related to the exchange of communications between its agents and the Libyan, Italian and Maltese authorities in relation to its operation in the central Mediterranean on July 30, but refused to share them with Sea Watch arguing that this would endanger public safety. In the list of documents, he never included or mentioned the existence of a hundred photographs that were taken by the agency’s drone.
The TGUE partially rules against Frontex. On the one hand, he believes that his refusal to share information cannot apply to those hundred images, since he never claimed why he needed to keep them secret. However, he does agree with the security argument regarding the 73 initial documents. “By not having mentioned certain photographs in its decision, Frontex did not justify the denial of access to them,” the TGUE, based in Luxembourg, reported in a statement. However, the ruling also states that it “largely rejects the arguments made by Sea Watch against Frontex’s decision.”
A spokesperson for the agency has indicated to this newspaper that they are currently studying the ruling. “Frontex is pleased that, to a large extent, the court has confirmed that the Agency maintains the appropriate balance between transparency and protecting the security of our officials and operational activities,” he added.
Sea Watch had indeed recorded how the Libyan coast guard entered European waters and took the boat back in what could be a violation of the principle of non-refoulement, since the operation was witnessed by the Seabird 1 tracking plane and the boat. rescue ship Sea Watch 3, both owned by the same organization. The NGO decided to investigate the events and requested a series of documents from the agency about its actions that day. Given Frontex’s refusal to share them, Sea Watch filed a complaint in April 2022 and the hearing took place in October 2023.
After this ruling, Frontex is not obliged to hand over the photographs that the agency had never mentioned and, in fact, it can appeal the ruling before the Court of Justice of the European Union, the highest administrative instance of community justice, explains Luisa Izuzquiza, researcher. and campaign coordinator for FragDenStaat, the NGO that has legally assisted Sea Watch. “Now the ball is in Frontex’s court. “He has told them that the denial of the photos cannot be applied and it is clear to us that they have to publish them, since they did not present any argument as to why these images could endanger public safety,” she explains. In his opinion, not doing so would go against the speech of the new director, Hans Leijtens, who upon taking office told the press and the European Parliament that one of his priorities would be transparency, one of the workhorses of this European agency. , questioned on countless occasions in the past for its opacity.
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Complicity in human rights violations
The 20 people on the boat intercepted that July 30 were part of the more than 32,400 migrants captured at sea by the Libyan coast guard and forced to return to that country, according to data from the International Organization for Migration (IOM). An investigation by the organizations Human Rights Watch and Border Forensics revealed a year later that almost a third of these interceptions were possible thanks to intelligence information collected by Frontex through its aerial surveillance systems.
“Frontex highlights that drone and aircraft sightings can save lives. But our analysis of how the agency uses aerial surveillance shows that it is in the service of interceptions, not rescues. Without the information from the EU planes, the Libyan Coast Guard would not have the technical and operational means to intercept these ships on such a scale,” says the report of these organizations, recalling that the Mediterranean is the place in the world with the most deaths and missing under its waters, more than 28,000 at the end of 2023.
NGOs involved in the defense of migrants’ rights have been denouncing for years that Frontex’s surveillance work and its collaboration with the Libyan coast guard are a central pillar of the EU’s strategy to prevent migrants from knowingly reaching Europe. that if they are returned they will face arbitrary arrests, torture and systematic violence, making the EU complicit in these abuses.
For Izuzquiza, the big question is what these photos can say about how the different actors relate to each other in the central Mediterranean and how responsibility is distributed when a human rights violation occurs. “We are not talking about illegality, but about complicity. To what extent Frontex is an instrument when it comes to carrying out human rights violations and to what extent it should be that way. And it is difficult to answer these questions because Frontex denies information about its collaboration with the Libyan coast guard,” denounces the researcher.
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