The 2016 deal between the EU and Turkey, and the closure of the western Balkan route, curbed the massive influx of Syrian refugees towards Europe. But the story didn’t end there. In the years since, Europe’s intransigence on the issue of mass migration has led EU member states on the external frontier of Europe to restore control over their borders by employing violent force and bending the law.
The EU’s external border control apparatus is now a patchwork of irregular approaches engineered to avoid EU and international external border rules. The European commission has virtually no oversight of what truly goes on.
Meanwhile violence reigns on the external frontier. The dog hunts, the beatings and torture, the summary expulsions and the racial biases that are engraved in the culture of policing and border control, are eroding the supposed moral foundations of the European Community. This September, Europeans have a fleeting opportunity to do something better as the European commission considers whether to institute an independent border monitoring mechanism. But first, we should remind ourselves why such an instrument is necessary.
By 2016, Hungary had already put in place a system of transit zones that functioned outside the remit of EU law. Migrants and asylum seekers were hunted down, returned to the designated zones, denied food and in many cases expelled without access to legal procedures.
Allegations of systematic and organised violence and pushbacks by Croatia’s border police have surfaced repeatedly. Following a complaint from inside the border police about orders from superiors to carry out illegal acts, in March 2019 the Croatian ombudswoman asked the authorities to open an investigation.
In the Mediterranean, Italian and Maltese authorities have bent rules of maritime international law so hard that they ended up resorting to enlisting private fleets of ships and human smugglers in their effort to curb crossings through the central Mediterranean. Italy has been supported by the EU to set up a refoulement by proxy system, enabling the Libyan coastguard to drag back thousands of people embarking from its shores to escape a war zone.
This year Greece was heavily criticised for conducting irregular expulsions of thousand of migrants from its territorial and maritime borders to Turkey. The Greek prime minister has characterised these allegations as “misinformation”, but mounting evidence and reports have been considered credible by the UN refugee agency.
The system put in place by the commission to assist member states in border control – run by Frontex – has faced recurrent systemic deficiencies in securing the necessary oversight.
On paper, Frontex should be able to provide a realistic picture of what happens in the field but its reporting system, according to human rights organisations, has not been efficient. Additionally, the absence of reports has too often been presented as proof that not enough evidence exists.
Pressed on the issue during a meeting at the European parliament on 6 July, the EU commissioner for home affairs, Ylva Johansson, responded that the commission didn’t have the authority to investigate allegations about violations on the external borders. But she added that the time was right “to consider if we also need to put in place a new mechanism to monitor and verify reports of pushbacks”.
The time is, indeed, right. On 23 September, the commission is preparing to release a new framework proposal to overhaul the EU’s reception of migrants and asylum regime. And if Johansson follows up on her remarks, a new borders monitoring mechanism and all necessary adaptions of related legal tools could be facilitated within this proposal.
Frontex cannot be part of the solution. The agency has failed to deliver a robust monitoring system while growing at a fast pace and commanding a huge EU budget.
This independent monitoring mechanism ought to be based on already existing and truly independent national institutions that have the expertise and, in many cases, the mandate to carry out such investigations. State-, but not government-controlled, national ombudsmen and national preventive mechanisms against torture and ill-treatment, directly and only accountable to national parliaments, could be empowered by the commission to shine a light on law-breaking on Europe’s frontier.
The demand for an independent monitoring mechanism may sound minor or bureaucratic. And it would not be a definitive solution to the crisis. But my years of reporting on this have made clear that Europe needs a trusted body to restore the rule of law.
This is not only about registering violations or defending human rights while making border police accountable. It is also about stopping the political abuse and weaponisation of migration as an issue by the EU and third-party countries. It would help Europeans redraw the democratic limits within which executive power can be exercised. Contrary to conventional thinking, a well-planned, independent and effective monitoring mechanism would benefit member states and not work against their interests.
The crisis has gone on for too long and the commission should stop turning a blind eye to what happens on its edges. The time for Johansson to act is now.