ARTICLES Push-back and the violence of Frontex

A suited man on a Frontex boat looks through binoculars at people in a dinghy
Image: Mohammad Hamza (c/o Intifada Street)

Push-back and the violence of Frontex

Behind the European system of border control known as “push-back” lies a racist and violent ideology that only civil society, working deliberately across borders to understand and undermine the status quo, can overcome.

In another case, a migrant explains his experience with the Greek coast guard:

“Instead of trying to rescue us they were taking photos, and while we were trying to get on the ship they hit me. They slapped me twice. This was the rescue!”

Recently, Amnesty International released a report about how violently Hungarian police and migration forces pushed irregular migrants back to Serbia:

“Once, we managed to get 21km into Hungary. But police came and still brought us back to Serbia. First of all when they caught us they said don’t worry we will take you to a camp. They transferred us to a different group of mixed police and military. They had a video camera with them. They said I had to say to the camera that I broke the law and we were only 3 km in. They were aggressive. They said if we don’t do that we will use tear gas and hit you. They gave us no papers, took no finger prints. Just drove us back to the border by Kelebia and then looked at our passports and threw them over the fence.”

The way a political community deals with migration defines the identity of that community. It determines who can be included and who excluded. Push-back is the practice of a European community of nation-states that is exclusionary, violent, militarised, and racialised. This is a practice that has been systematically established throughout the twenty-first century. It’s a practice that presents, however, an opportunity for European civil society to overcome racism, to deepen transborder ties and to challenge and transform what Europe has become. This can only be achieved though once the apolitical discourse of humanitarianism has been abandoned.

So what is Push-back?

In a report prepared by the European Parliament’s Directorate General for External Affairs in 2015, push-back practices are defined as practices of “national coast guards trying to prevent migrant boats from reaching certain territorial waters by returning them to their points of departure”.

The examples from Greece and Hungary, mentioned above, are likely the most well publicised, partly because of their extreme and violent content. However, push-back does not always take the form of a physical and direct encounter between the irregular migrant and the coast guard. Two types of push-back practice are:

  1. Direct push-back: This occurs during a direct encounter between migrants and coastguards or border guards where the latter physically pushes the migrants away.
  2. Indirect push-back: which occurs when in the encounter between the migrant boat and the coast guard, the latter circles the migrant boat and manoeuvres so as to force the boat to turn back. This practice sometimes causes the migrant boat to capsize, killing its passengers. Although coast guard operations co-ordinated by Frontex are legally banned from performing indirect push-back at high seas, the practice is still common and permissible in the territorial waters of member states.
Frontex: the militarisation of the Med

Maritime cooperation among EU member states started at the end of the 1990s under the leadership of Italy and Spain, to meet the challenge of ‘illegal’ crossings in the Mediterranean Sea, and led in turn to cooperation between southern and northern Mediterranean states in the area of immigration control so that, as early as 1998, for example, Italy began to subsidise Tunisia to strengthen its hand.

The early years of the 21st century saw the rhetoric and response to irregular migration stepped up to more emphatically invoke concepts of Europe as a territory under attack and, as such, in need of defence so that, in 2003, for example, Operation Ulysses was launched as a joint naval initiative between France, the UK, Spain, Portugal and Italy.

In the same year, the Spain–Morocco and Italy–Libya agreements were announced with regard to joint naval patrols in the Mediterranean, and in 2004, the EU Council issued a regulation for the establishment of a border agency, which would co-ordinate member state cooperation and conduct risk analysis in the area of immigration control.

In 2005, EU Commissioner Franco Frattini articulated what was already a reality, describing ‘three defense lines’ to protect Europe against the attack of ‘illegal migration’: firstly, to equip EU borders with the latest technology; secondly, to obtain the cooperation of the North African countries to control the EU’s borders; thirdly, to establish bilateral agreements with the countries of origin. It was within this atmosphere of bellicose excitement about defending Europe that Frontex was ushered into existence…

Super-Frontex: pedalling ambiguity

From the time of its initial risk assessment reports (which, though presented to the European Commission and the Council, excluded the European Parliament) the culture of Frontex has been described as suffering from poor democratic accountability, transparency, and legal scrutiny.

By 2011, amidst increasing criticism, particularly from the European Parliament’s Civil Liberties, Justice and Home Affairs Committee, Frontex  was pressured into halting push-back operations, replacing this tactic with one of Search and Rescue (SAR), which emerged as the dominant strategy for monitoring migration waves in the wake of the Arab uprisings of 2011 and the Syrian Civil War.

Yet, in spite of the rhetoric of SAR that has shaped Frontex narratives about its operations since 2011, the recorded death toll in the Mediterranean increased to 5,143 in 2016, from 3,785 in 2015. Instead of questioning the utility of a militarized approach to migration, the EU  responded, in July 2016, by creating a “Super-Frontex“ – a “European Border and Coast Guard Agency” with new powers to deploy its 1500 border guards into any member state, without invitation, and with the freedom to return illegal migrants back to where they came from.

Migrants’ experiences of return to third countries like Libya and Turkey are sometimes horrific:

“The Turkish guard showed up, they grabbed a knife to cut the boat to drown us. So we all lifted the small children. We lifted up the small children and are telling them, in one voice: ‘We have children with us, we have children with us, God is great, God is great.’ They were agitating the water around the boat, to drown us. They wanted us to drown, they didn’t want to save us. The goal was to drown us…”

It would be misleading to claim that European states and the EU are solely engaging with push-back. Italy’s Mare Nostrum operation saved around 80,000 migrants. The EU replaced Mare Nostrum with Operation Triton in 2014 under the aegis of Frontex, albeit covering a much smaller area than its predecessor, and here is where the problem lies: national coast guards individually or under the coordination of Frontex can either push migrants’ boats back or take them to Europe by allowing them into their ships.

Irregular migrants cannot know in advance what type of practice the coast guard would adopt. Facing this uncertainty, boats sail back, sail into dangerous routes to avoid interception, or do not give distress calls until it is too late.

Article 2: the right to life

Since 2011, two decisions of the European Court of Human Rights (ECtHR) have provided vital context in terms of the legal ramifications for push-back practice.

In the case of Hirsi Jamaa and others vs Italy in 2012, the ECtHR ruled that Italy, which had pushed back a group of Eritrean irregular migrants to Libya, thanks to a bilateral agreement between the two countries, was in violation of Protocol 4 of the European Convention of Human Rights. The protocol defines and bans “collective expulsion”, which, according to the Court, is what the push-back practice in question resulted in.

The second case, Xhavara and fifteen others v. Italy and Albania, concerned the incident of the collusion of an Italian navy ship and a boat, which left more than 50 irregular migrants drowned. The Court found Italy responsible for violating Article 2 of the Convention – the “right to life”.

The basic fact established by this ruling is that if there is death as a result of a push-back practice, member states are liable. If the movement of coast guard boats or navy ships causes the capsizing of a migrant boat, causing death, even if the intention is push-back and not death, it is legally understood that the relevant state violates the right to life.

From the point of view of international refugee law, these types of practice can also mean violation of the Refugee Convention’s non-refoulement clause. All intercepted migrants, without being given due attention to the possibility that they might apply for asylum upon their arrival in Europe, are sent back (or forced to go back) to their countries of origin. In other words, push-back practices, even when used as a form of deterrence, can also violate the Refugee Convention.

Despite these legal consequences, why are push-back practices still common? The answers lie within the predominant political and ideological frames adopted by Europe towards migration.

Neoliberalism’s paradox: how movement became a crime

From 1974 onwards, during the recession that followed the oil crisis and rising unemployment, European states, starting with Germany, ended and phased out their guest worker schemes.

The subsequent decades were marked by a process where legal, permanent migration channels to Europe were reduced to asylum-seeking, family unification, and increasingly expensive and digitalised visa systems, oriented to appeal only to wealthy and highly-skilled migrants.

Lack of accessible and legal options inevitably led many migrants to use asylum or family unification routes, which in turn resulted in the European discourse of “bogus asylum-seekers” and “white” or “sham” marriages. Irregular migrants got quickly redefined as “criminals”.

It may come as no surprise that this process, the criminalisation of migration into Europe, coincided with the period of neoliberalisation in many European economies. The scapegoating of migrants often emerged as a convenient tool for politicians facing the decline of the welfare state and reductions in public expenditure: a situation where many citizens’ living standards fell into decline and low-skilled jobs were put at risk.

Push-back, it’s important to remember, is often justified as an economic “defence” as much as a political and legal one…

Civil society’s response: going beyond the discourse of white saviours

Today, the Mediterranean Sea hosts several NGOs including the Migrant Offshore Aid Station (MOAS), Doctors without Borders, Save the Children, SOS Méditerranée, Sea Watch, Life Boat Project, Sea Eye, Jugend Rettet, Boat Refugee, and Proactiva Open Arms. All of these organisations engage with the practice of search and rescue, offering a humanitarian response to the often fatal culture of push-back that is practised by the state.

Hundreds of thousands of lives have been saved by these civil society organisations.

However, for all the praise and acknowledgement these efforts deserve, it’s important to understand how the humanitarian discourse, propagated by NGOs, can still in various ways serve the status quo, rather than weaken it.

In January 2017, for example, the Daily Mail reported on a search and rescue operation performed by the Royal Navy describing how British sailors had saved the lives of 15,000 migrants. It quoted a “rescued migrant” as follows: “I was granted a new life. I thank them with all my heart and I thank Britain for providing me with everything I need in life.”

The humanitarian discourse can quickly become a vehicle for propagating the idea of the white saviour. It depoliticises the real issue of how the criminalization of migration has been a political choice and an economic choice, made by neoliberal Europe, over a period of decades.

It’s a discourse that entirely conceals the reasons why many migrants are left with no choice other than to put their lives at risk and who and what is the agency that is putting those lives at risk. It’s also a discourse that finds itself entirely vulnerable to a sovereign state whose warlike processes against “illegal” migrants show signs of only further escalation.

Italy has recently asked all NGOs conducting rescue operations in the Mediterranean to sign a code of conduct that “forces them to allow police officers on board and return immediately to port, rather than transferring migrants to other ships”. Frontex has recently accused NGOs, not only of encouraging traffickers, but also of working with them, signalling that humanitarianism, like migration, can fall foul of a similar process of bogus criminalisation.

In response to the racism and xenophobia of today’s political structure, what we need, now in Europe, is not simply a furthering of the humanitarian discourse but the emergence of a transborder political voice and position that can deepen civil society ties and build platforms strong enough to overturn these choices that have been made by neoliberal Europe over the course of a generation.

A first step towards this might be to create an alternative European Migration Forum (EMF). The EMF was launched by the European Economic Social Committee of the EU in January 2015. It aims to bring together civil society representatives to shape EU migration policy but, in reality, it has served to legitimise the discourse of the “humanitarian emergency” which in turn has contributed to increased border security measures across the Mediterranean.

In contrast, what’s urgently needed is a forum that brings together humanitarian NGOs, pro-immigration civil society actors, academics, journalists and researchers, in order to politicise this crisis, in order to reveal how the real crisis here is not really migration at all but one of multiple layers of Europe’s political economy.

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This article was commissioned through the Black Journalism Fund.