Ferahkaya, Rabia

Moser, Carolyn

Märtin, Lukas

English

<intR>²Dok

Frontex goes Africa: On Pre-emptiveBorder Control and MigrationManagementCarolyn Moser 2020-02-06T11:00:00Where does the European polity end? This fundamental question has keptgenerations of European thinkers busy. Defining who is ‘in’ and who is ‘out’ is indeeda tricky issue. Next to a multitude of political, legal, and also cultural factors, contextmatters a lot when (re)drawing European boundaries. The significant migratoryincrease Europe experienced in 2015 propelled the protection of the EU’s externalborders to the top of the political agenda. Consequently, Frontex—the Union’sagency in charge of external border control—experienced an important upgradein terms of competences and capabilities. The logic underpinning this move wasthat more power and resources would help to improve the control and managementof the EU’s external borders in relation to migratory pressures, transboundarycriminality, and other security threats.At the exploration of the EU’s Southern ‘pre-frontierarea’But where exactly are these borders that Frontex is to protect? This questionbrings us back to the initial interrogation on the confines of Europe. Intuitively, wewould say that Frontex operates at the EU’s external borders which, essentially,are the sum of all EU Member States’ land and sea borders with third countries.However, a closer look at the manifold activities of Frontex leads to a quite differentconclusion. Next to its presence at the borders with third countries, the agencyhas progressively increased the number of extraterritorial activities far beyond theEuropean boundaries. Based on a combination of formal and informal agreements,the agency has managed to project its control and intelligence activities to the EU’sarc of neighbours and far beyond. Incrementally, the agency has conquered the so-called pre-frontier area of the EU that, according to the relevant EU rules, covers allnon-EU land and sea territories.Especially since the migratory pressure of 2015, the agency has discoveredthe significance of the African pre-frontier area. The rationale behind thisreinforced engagement in Africa is one of pre-emptive border control and migrationmanagement: By means of enhanced surveillance and capacity building, (potential)problems are identified and addressed long before they hit the EU at its externalborders. This contribution sketches out the progressive Southern extension of thetheatre of operations of Frontex from the Mediterranean to the Sahel region, inparticular through intelligence activities. As demonstrated by two case studies—the first concerning the cooperation of Frontex with the EU’s military operation in- 1 -the Mediterranean Sea, and the second regarding its increased presence in Sub-Saharan Africa—the African continent has become Frontex turf. This, in turn, raisesa number of questions.A steady surveillance rapprochement: lawenforcement and military cooperation in theMediterraneanThe Mediterranean Sea has for many years been the theatre of numerous Frontex-led maritime operations, including Indalo, Poseidon, or Themis (formerly Triton) toname only some. In recent years, the agency’s level of operational engagementin the Mediterranean has noticeably intensified while taking a more pre-emptivetwist. Indicative of this development is the unprecedented close cooperationbetween Frontex and EU security and defence actors, in particular the Union’s navaloperation EUNAVFOR Med Sophia. The unusual alliance between an agency ofthe Area of Freedom, Security and Justice (AFSJ), on the one hand, and a militaryoperation deployed under the Common Security and Defence Policy of the Union(CSDP), on the other, can be explained by a major common interest: intelligencesharing.Operation Sophia was set up in 2015 to fight human smuggling and trafficking alongthe Central Mediterranean route. Since then, the Operation’s mandate has beenamended several times. In 2016, the implementation of the UN arms embargo onthe high seas off the Libyan coasts as well as the training of Libyan coast guardswas added to the Operation’s mandate. These new tasks significantly expanded theintelligence portfolio of Operation Sophia: Indeed, surveillance activities, evidencegathering, and the collection and storage of personal data amassed in the courseof the operation have been on the rise since 2016. Even when the deployment ofthe Operation Sophia’s naval assets was suspended in early 2019 due to profounddisagreements of Member States on the role of the Operation, its intelligencemandate remained unaltered.Importantly, the collected data can be shared with competent Union bodies,including Frontex. This means that the agency is entitled to receive data on migrants(and smugglers), including their fingerprints, acquired by Operation Sophia whilecarrying out its mandate. In return, Frontex inputs strategically important informationabout the methods used by criminal groups that the agency’s mobile debriefingteam collects and processes. In the framework of Operation Sophia, Frontex alsogot involved in the (severely criticised) training of Libyan coast guards on lawenforcement at sea. What is more, the agency touched base with the civilian sideof security and defence: Next to deploying a liaison officer to the civilian mission inLibya (EUBAM Libya), the agency started to offer courses to Libyan coast guardmembers together with that mission and Italian authorities.In 2018, information sharing in the joint fight against human trafficking and smugglingoff the Libyan shore reached a new level with the establishment of the CrimeInformation Cell (CIC). The rationale behind the Cell’s creation was to facilitate- 2 -the receipt, collection, and transmission at the EU level of information betweeninvolved military and policy actors. Praised as the first concrete example of aCSDP–AFSJ cooperation, the pilot project brought together members of OperationSophia, officials from national law enforcement authorities, and representativesfrom several EU agencies (i.e. Frontex, Europol, Eurojust, and EASO). The Cellhosted by Operation Sophia thus provided for an intelligence interface combiningdifferent sources of information that could then be used both for police and militarypurposes. As borders have become more flexible, their management has becomemore flexible, too, combining civilian and military instruments.The entente between Frontex and Operation Sophia illustrates an underlyingconceptual and operational shift: Not only have the internal and external spheres ofEU security become imbricated, but information gathering and intelligence sharinghave come to be seen as a strategic priority of effective security governance andborder management.Weaving a dense intelligence net: the case of Sub-Saharan AfricaIntelligence gathering also drives the gradual extension of Frontex activities tothe African continent. Already in 2010, the Africa-Frontex Intelligence Community(AFIC) was launched which, nowadays, counts 26 countries from all over the Africancontinent. A pivotal element of the AFIC are the so-called Risk Analysis Cellsthat were set up in the aftermath of the migratory increase of 2015. Staffed withlocal analysts trained by Frontex, these cells are to collect and analyse strategicdata on cross-border crime and support relevant authorities involved in bordermanagement. The gathering and assessment of information on illegal bordercrossings, document fraud, and trafficking in human beings forms explicitly part ofthe intelligence gathering exercise. This, in turn, underlines that the AFIC’s raisond’être is to advance the pre-frontier intelligence picture by the comprehensivemonitoring of migratory movements. The collected and processed data is sharedwith all relevant authorities at the national and regional level and with Frontex.And as for its European ‘pendant’ (the cooperative framework of the Frontex RiskAnalysis Network), the input of the African Risk Analysis Cells feeds into regularreports, the AFIC Joint Reports, that also contain policy recommendations.So far, a handful of Risk Analysis Cells have been set up in Africa since 2018, bothin countries of origin and transit along the main migratory routes. The location of thefirst Cell opened in Niamey (Niger) in 2018 is no coincidence: The Sahel region andin particular Niger is known for being a transit hub for migrants on their way North(mostly to Libya) to reach Europe on the Central Mediterranean route. Further Cellswere established in Gambia, Ghana, and Senegal. Thereby, intelligence can alsomore easily be collected with respect to the Western Mediterranean route (runningthrough West Africa and Morocco to Spain) along which migratory movements haverisen steeply in the last years. With a view to enlarging the AFIC to an increasednumber of countries, Kenya, Guinea, Mali, and Nigeria are planned to host furtherCells.- 3 -Once all Risk Analysis Cells will be operational, Frontex will have access to a wideand dense intelligence network, especially in West Africa and the Sahel and LakeChad regions. This pre-frontier intelligence, in turn, will enhance the possibilityfor pre-emptive border control and extraterritorial migration management on theAfrican continent. Think, for instance, of a person stranding in Libya. So far, it isoften difficult to pin down the ‘country of origin’ of this person not least because oflacking documentation. However, if Risk Analysis Cells spread over West Africaand the Sahel region start to collect and share data of migrants, including theirfingerprints, this will allow to trace at least partly their migratory path and potentiallyfacilitate returns. For this strategy to work in the long run, though, checks in Africancountries would need to be more frequent, and the data would need to be sufficientlyreliable. This, however, presupposes a considerable state building and developmentaid effort. Interestingly enough, the creation of the Risk Analysis Cells is financedby DG DEVCO, the European Commission’s Directorate-General for InternationalCooperation and Development.It is furthermore worth mentioning that the new Frontex mandate of 2019 allowsfor executive missions to be carried out in countries with no direct border with theEU. The agency is even mandated to establish antenna offices on non-EU territory.Future deployments of the agency to Africa to take action in countries of origin andtransit are thus no longer pure fiction.Implications of the new confines of the EUThe intensified presence of Frontex in Africa is likely to trigger conflicts on thedivision of labour between different EU structures. So far, Africa has constituteda major operational turf of conflict prevention, peacemaking, and peacebuildingcarried out under the Common Security and Defence Policy. Over the last twodecades, numerous civilian and military CSDP activities have been implemented ina dozen African countries. The enlargement of the portfolio of Frontex to capacitybuilding and training of security sector actors in Africa sits uneasy with the previouslyprevailing conceptual and geographical delimitations between different EU securityactors: CSDP actors took over the pre-frontier zone while law enforcement agenciestook care of Europe’s periphery and arc of neighbours. The EU judicature endorsedthis distinction between internally-oriented security activities (AFSJ domain) andexternal security activities (CSDP turf) on several occasion (see here and here). Dueto the Africa move of Frontex, overlap increases in particular with civilian missionsthat risk to be progressively marginalized by EU law enforcement agencies. Asthe line between internal and external security has ceased to exist in practice, it ishigh time that the EU properly streamlines its internal and external security arms—including in Africa. Given the growing affinity of national leaders and Europeandecision-makers for law enforcement in security management, the recalibration ofEU security measures in Africa will most likely not be to the detriment of Frontex.This, in turn, raises a fundamental issue as, in principle, more power comes withmore responsibility. Let us first have a look at the southwards expansion of pre-frontier intelligence activities. The democratic credentials and human rights recordsof many African governments are at best mixed. Given this fragile public governance- 4 -context, it is judicious to define an appropriate and transparent accountabilityand data protection scheme for extensive intelligence sharing with African lawenforcement and border control authorities. Key in this regard is also to clarify (andcodify) the interface between the African intelligence and the existing EU databasesrelated to migration monitoring, namely Eurodac, SIS, and VIS. This leads to asecond set of interrogations related to the liability of Frontex for potential humanrights violations occurring extraterritorially, especially when undertaking executivemissions. The African theatre of operations will constitute no exception in this regard—to the contrary. If, in the future, Frontex was to address migratory movementsdirectly in countries of origin and transit, where legal protection standards are oftenweak, the risk of human rights violations without appropriate redress routes wouldincrease by the mere intensification of situational exposure. So far, these cruciallegal issues have not been addressed.- 5 -

Frontex goes Africa: On Pre-emptive Border Control and Migration Management

Moser, C.

Ferahkaya, R.

Märtin, L.

MPG.PuRe

1/5Frontex goes Africa: On Pre-emptive Border Controland Migration Managementverfassungsblog.de/frontex-goes-africa-on-pre-emptive-border-control-and-migration-management/Carolyn MoserRabia FerahkayaLukas MärtinThis article belongs to the debate » Frontex - A Rising Star of Declining Europe?06 Februar 2020Where does the European polity end? This fundamental question has kept generations ofEuropean thinkers busy. Defining who is ‘in’ and who is ‘out’ is indeed a tricky issue. Nextto a multitude of political, legal, and also cultural factors, context matters a lot when(re)drawing European boundaries. The significant migratory increase Europe experiencedin 2015 propelled the protection of the EU’s external borders to the top of the politicalagenda. Consequently, Frontex—the Union’s agency in charge of external border control—experienced an important upgrade in terms of competences and capabilities. The logicunderpinning this move was that more power and resources would help to improve thecontrol and management of the EU’s external borders in relation to migratory pressures,transboundary criminality, and other security threats.At the exploration of the EU’s Southern ‘pre-frontier area’But where exactly are these borders that Frontex is to protect? This question brings usback to the initial interrogation on the confines of Europe. Intuitively, we would say thatFrontex operates at the EU’s external borders which, essentially, are the sum of all EUMember States’ land and sea borders with third countries. However, a closer look at themanifold activities of Frontex leads to a quite different conclusion. Next to its presence atthe borders with third countries, the agency has progressively increased the number ofextraterritorial activities far beyond the European boundaries. Based on a combination offormal and informal agreements, the agency has managed to project its control andintelligence activities to the EU’s arc of neighbours and far beyond. Incrementally, theagency has conquered the so-called pre-frontier area of the EU that, according to therelevant EU rules, covers all non-EU land and sea territories.Especially since the migratory pressure of 2015, the agency has discovered thesignificance of the African pre-frontier area. The rationale behind this reinforcedengagement in Africa is one of pre-emptive border control and migration management: By2/5means of enhanced surveillance and capacity building, (potential) problems are identifiedand addressed long before they hit the EU at its external borders. This contributionsketches out the progressive Southern extension of the theatre of operations of Frontexfrom the Mediterranean to the Sahel region, in particular through intelligence activities. Asdemonstrated by two case studies—the first concerning the cooperation of Frontex withthe EU’s military operation in the Mediterranean Sea, and the second regarding itsincreased presence in Sub-Saharan Africa—the African continent has become Frontexturf. This, in turn, raises a number of questions.A steady surveillance rapprochement: law enforcement andmilitary cooperation in the MediterraneanThe Mediterranean Sea has for many years been the theatre of numerous Frontex-ledmaritime operations, including Indalo, Poseidon, or Themis (formerly Triton) to name onlysome. In recent years, the agency’s level of operational engagement in the Mediterraneanhas noticeably intensified while taking a more pre-emptive twist. Indicative of thisdevelopment is the unprecedented close cooperation between Frontex and EU securityand defence actors, in particular the Union’s naval operation EUNAVFOR Med Sophia.The unusual alliance between an agency of the Area of Freedom, Security and Justice(AFSJ), on the one hand, and a military operation deployed under the Common Securityand Defence Policy of the Union (CSDP), on the other, can be explained by a majorcommon interest: intelligence sharing.Operation Sophia was set up in 2015 to fight human smuggling and trafficking along theCentral Mediterranean route. Since then, the Operation’s mandate has been amendedseveral times. In 2016, the implementation of the UN arms embargo on the high seas offthe Libyan coasts as well as the training of Libyan coast guards was added to theOperation’s mandate. These new tasks significantly expanded the intelligence portfolio ofOperation Sophia: Indeed, surveillance activities, evidence gathering, and the collectionand storage of personal data amassed in the course of the operation have been on therise since 2016. Even when the deployment of the Operation Sophia’s naval assets wassuspended in early 2019 due to profound disagreements of Member States on the role ofthe Operation, its intelligence mandate remained unaltered.Importantly, the collected data can be shared with competent Union bodies, includingFrontex. This means that the agency is entitled to receive data on migrants (andsmugglers), including their fingerprints, acquired by Operation Sophia while carrying outits mandate. In return, Frontex inputs strategically important information about themethods used by criminal groups that the agency’s mobile debriefing team collects andprocesses. In the framework of Operation Sophia, Frontex also got involved in the(severely criticised) training of Libyan coast guards on law enforcement at sea. What ismore, the agency touched base with the civilian side of security and defence: Next todeploying a liaison officer to the civilian mission in Libya (EUBAM Libya), the agencystarted to offer courses to Libyan coast guard members together with that mission andItalian authorities.3/5In 2018, information sharing in the joint fight against human trafficking and smuggling offthe Libyan shore reached a new level with the establishment of the Crime InformationCell (CIC). The rationale behind the Cell’s creation was to facilitate the receipt, collection,and transmission at the EU level of information between involved military and policyactors. Praised as the first concrete example of a CSDP–AFSJ cooperation, the pilotproject brought together members of Operation Sophia, officials from national lawenforcement authorities, and representatives from several EU agencies (i.e. Frontex,Europol, Eurojust, and EASO). The Cell hosted by Operation Sophia thus provided for anintelligence interface combining different sources of information that could then be usedboth for police and military purposes. As borders have become more flexible, theirmanagement has become more flexible, too, combining civilian and military instruments.The entente between Frontex and Operation Sophia illustrates an underlying conceptualand operational shift: Not only have the internal and external spheres of EU securitybecome imbricated, but information gathering and intelligence sharing have come to beseen as a strategic priority of effective security governance and border management.Weaving a dense intelligence net: the case of Sub-Saharan AfricaIntelligence gathering also drives the gradual extension of Frontex activities to the Africancontinent. Already in 2010, the Africa-Frontex Intelligence Community (AFIC) waslaunched which, nowadays, counts 26 countries from all over the African continent. Apivotal element of the AFIC are the so-called Risk Analysis Cells that were set up in theaftermath of the migratory increase of 2015. Staffed with local analysts trained byFrontex, these cells are to collect and analyse strategic data on cross-border crime andsupport relevant authorities involved in border management. The gathering andassessment of information on illegal border crossings, document fraud, and trafficking inhuman beings forms explicitly part of the intelligence gathering exercise. This, in turn,underlines that the AFIC’s raison d’être is to advance the pre-frontier intelligence pictureby the comprehensive monitoring of migratory movements. The collected and processeddata is shared with all relevant authorities at the national and regional level and withFrontex. And as for its European ‘pendant’ (the cooperative framework of the FrontexRisk Analysis Network), the input of the African Risk Analysis Cells feeds into regularreports, the AFIC Joint Reports, that also contain policy recommendations.So far, a handful of Risk Analysis Cells have been set up in Africa since 2018, both incountries of origin and transit along the main migratory routes. The location of the firstCell opened in Niamey (Niger) in 2018 is no coincidence: The Sahel region and inparticular Niger is known for being a transit hub for migrants on their way North (mostly toLibya) to reach Europe on the Central Mediterranean route. Further Cells wereestablished in Gambia, Ghana, and Senegal. Thereby, intelligence can also more easilybe collected with respect to the Western Mediterranean route (running through WestAfrica and Morocco to Spain) along which migratory movements have risen steeply in thelast years. With a view to enlarging the AFIC to an increased number of countries, Kenya,Guinea, Mali, and Nigeria are planned to host further Cells.4/5Once all Risk Analysis Cells will be operational, Frontex will have access to a wide anddense intelligence network, especially in West Africa and the Sahel and Lake Chadregions. This pre-frontier intelligence, in turn, will enhance the possibility for pre-emptiveborder control and extraterritorial migration management on the African continent. Think,for instance, of a person stranding in Libya. So far, it is often difficult to pin down the‘country of origin’ of this person not least because of lacking documentation. However, ifRisk Analysis Cells spread over West Africa and the Sahel region start to collect andshare data of migrants, including their fingerprints, this will allow to trace at least partlytheir migratory path and potentially facilitate returns. For this strategy to work in the longrun, though, checks in African countries would need to be more frequent, and the datawould need to be sufficiently reliable. This, however, presupposes a considerable statebuilding and development aid effort. Interestingly enough, the creation of the RiskAnalysis Cells is financed by DG DEVCO, the European Commission’s Directorate-General for International Cooperation and Development.It is furthermore worth mentioning that the new Frontex mandate of 2019 allows forexecutive missions to be carried out in countries with no direct border with the EU. Theagency is even mandated to establish antenna offices on non-EU territory. Futuredeployments of the agency to Africa to take action in countries of origin and transit arethus no longer pure fiction.Implications of the new confines of the EUThe intensified presence of Frontex in Africa is likely to trigger conflicts on the division oflabour between different EU structures. So far, Africa has constituted a major operationalturf of conflict prevention, peacemaking, and peacebuilding carried out under theCommon Security and Defence Policy. Over the last two decades, numerous civilian andmilitary CSDP activities have been implemented in a dozen African countries. Theenlargement of the portfolio of Frontex to capacity building and training of security sectoractors in Africa sits uneasy with the previously prevailing conceptual and geographicaldelimitations between different EU security actors: CSDP actors took over the pre-frontierzone while law enforcement agencies took care of Europe’s periphery and arc ofneighbours. The EU judicature endorsed this distinction between internally-orientedsecurity activities (AFSJ domain) and external security activities (CSDP turf) on severaloccasion (see here and here). Due to the Africa move of Frontex, overlap increases inparticular with civilian missions that risk to be progressively marginalized by EU lawenforcement agencies. As the line between internal and external security has ceased toexist in practice, it is high time that the EU properly streamlines its internal and externalsecurity arms—including in Africa. Given the growing affinity of national leaders andEuropean decision-makers for law enforcement in security management, the recalibrationof EU security measures in Africa will most likely not be to the detriment of Frontex.This, in turn, raises a fundamental issue as, in principle, more power comes with moreresponsibility. Let us first have a look at the southwards expansion of pre-frontierintelligence activities. The democratic credentials and human rights records of many5/5African governments are at best mixed. Given this fragile public governance context, it isjudicious to define an appropriate and transparent accountability and data protectionscheme for extensive intelligence sharing with African law enforcement and bordercontrol authorities. Key in this regard is also to clarify (and codify) the interface betweenthe African intelligence and the existing EU databases related to migration monitoring,namely Eurodac, SIS, and VIS. This leads to a second set of interrogations related to theliability of Frontex for potential human rights violations occurring extraterritorially,especially when undertaking executive missions. The African theatre of operations willconstitute no exception in this regard—to the contrary. If, in the future, Frontex was toaddress migratory movements directly in countries of origin and transit, where legalprotection standards are often weak, the risk of human rights violations withoutappropriate redress routes would increase by the mere intensification of situationalexposure. So far, these crucial legal issues have not been addressed.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Moser, Carolyn, Ferahkaya, Rabia; Märtin, Lukas: Frontexgoes Africa: On Pre-emptive Border Control and Migration Management, VerfBlog,2020/2/06, https://verfassungsblog.de/frontex-goes-africa-on-pre-emptive-border-control-and-migration-management/, DOI: 10.17176/20200206-162911-0.Explore posts related to this: LICENSED UNDER CC BY NC ND

Symposium 'Frontex—A Rising Star of Declining Europe?'

http://hdl.handle.net/21.11116/0000-000C-1D28-8

Frontex goes Africa: On Pre-emptive Border Control and Migration Management

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