Salami Slicing Human Rights Accountability: How the European Border and Coast Guard Agency may inherit Frontex’ genetic defect

Salami slicing is the exercise of dividing one salami sausage into many smaller pieces in the shape of slices. Slices have some advantages over the whole piece. Figuratively speaking, actions that are illegal or difficult to achieve as a whole may become easier, legal, or harder to detect if ‘sliced’ into a series of small actions. The ‘salami slicing’ metaphor is typically used pejoratively to describe practices that take advantage of the benefits that the accumulated ‘slices’ have over the whole, such as stealing or embezzling very small quantities of money repeatedly, or publishing fractions of one research that would form one meaningful paper in several small papers. As discussed in the following piece, something similar can be observed in relation to accountability for human rights violations that may occur during border control operations conducted jointly by several EU member states under the auspices of the EU agency Frontex. Regrettably, this structural shortcoming in the set-up of joint operations coordinated by Frontex is one that the new European Border and Cost Guard Agency is likely to inherit.

The proposal for a new European Border and Coast Guard Agency (EBCGA) was published by the European Commission on 15 December 2015. The plan is to significantly enhance Frontex’ mandate and to reflect those changes in renaming it. The new agency will dispose of considerably increased human and financial resources and gain substantial powers, such as requiring a member state to take ‘corrective measures’ to address ‘upcoming challenges’ at its external border, a possibility to intervene without invitation where it identifies serious deficiencies in a member state’s external border management, additional competences to cooperate with and operate in third countries, and an enhanced role in return operations (for a concise overview see here).

The proposal is part of a package of measures aimed at protecting the area without internal borders by strengthening its external borders. It comes in the midst of the escalating migration crisis Europe is struggling to resolve (see my earlier blog post here). Examples abound, but the recent plea of European Council President Donald Tusk to “potential illegal economic migrants”, “Do not come to Europe. Do not believe the smugglers. Do not risk your lives and your money. It is all for nothing.” , stands out as a particularly desperate move. With stakes this high, it is unsurprising that the Commission called on the European Parliament and the Council to give the EBCGA proposal highest priority.

Similar to Frontex, an important task of the EBCGA will be the organisation of joint border control operations. Simply speaking, in the framework of a joint operation, member states and the agency support another member state by sending their own border guards and equipment to be used for border control. The agency also finances or co-finances the operation and coordinates the actions of the various states involved.

As the migration crisis has once more confirmed, external border control is inherently human rights sensitive. This is so regardless as to whether states control their borders alone, jointly, or with the assistance of international or supranational organisations, e.g. the NATO patrols in the Aegean Sea, EUNAVFOR MED Operation Sophia (see my earlier blog post here), and joint operations coordinated by Frontex. Likewise, the new EBCGA will be involved in human rights sensitive activities. For that reason, the EU and its member states should give careful consideration to the potential consequences of human rights accountability before putting the new proposal in place. Fortunately, the legislator can draw on the lessons learned from the EBCGA’s older sibling Frontex. Frontex has made significant progress in relation to human rights awareness throughout its ten years of existence. However, it is struggling to resolve a structural accountability challenge that may indeed be better addressed through legislation.

The difficulties in human rights accountability with respect to Frontex revolve around two main aspects. First, there is disagreement as to the extent of the agency’s own accountability. While Frontex may be accountable, in addition to member states, especially under the doctrine of positive obligations under human rights law, its official position remains that generally only the participating member states are accountable for human rights violations potentially committed during joint operations. Second, there is uncertainty as to the distribution of accountability amongst the various actors participating in Frontex-coordinated joint operations.

Both aspects result from a combination of various uncertainties, some of a general nature, others more Frontex-specific.

The general uncertainties relate to the rules on allocation and implementation of accountability in multi-actor situations. Under international law (see the video produced by the SHARES project at the University of Amsterdam), these inter alia raise complex questions of attribution of conduct that are exacerbated by a shortage of available fora for individuals to bring claims, in particular, against the EU. Under EU law, the very elaboration of a framework of rules on allocation of accountability between the EU and its member states and among the member states themselves appears to be in its infancy, as is the interpretation of the rules that do exist. Paradoxically, this challenge is exacerbated by the multitude of courts within the EU’s judicial enforcement system i.e. the member state courts and the Court of Justice of the European Union. Due to their limited competence ratione personae, situations where one court could adjudicate the matter as a whole are difficult to imagine, requiring the individual victim of a human rights violation to institute parallel proceedings in several courts.

The Frontex-specific uncertainties relate to the relationships between the agency and the member states, and between the member states themselves during joint operations. Whilst the overall role of the involved actors is superficially addressed in the agency’s founding Regulation, their detailed tasks, the command structures they follow, and the bodies set up for the implementation of the operation, are dealt with in an Operational Plan drawn up for each operation. In combination, these documents result in an extremely complex and at times opaque picture of the distribution of tasks, responsibilities and command powers.

In sum, there are legal and practical difficulties in ascertaining the existence and extent of the respective accountability of the involved member states and Frontex. Such difficulties cause human rights accountability to disperse among these actors. The resulting ‘salami slicing’ strips accountability of its essential characteristics namely, providing meaningful redress to the victim and preventing future wrongdoing. Therefore, it is crucial that the Regulation establishing the EBCGA sets out, first, the precise role and powers of all involved actors and second, the distribution of accountability among them in the event that things go wrong.

When it comes to the clarification of the roles and powers of the actors involved in the implementation of joint operations, the EBCGA proposal (even though more detailed and better structured) does not go substantially beyond the Frontex Regulation. As regards human rights accountability, the Commission proposal most notably introduces a new complaint mechanism to monitor and ensure respect for human rights in all activities of the agency, thereby picking up the core concern the European Ombudsman voiced in 2012. According to Article 72 of the proposal, this possibility is available to anyone who alleges to be the victim of a human rights violation committed by staff during an operation coordinated by the EBCGA. The procedure is handled by the Fundamental Rights Officer who shall decide on admissibility and ensure that all complaints result in an ‘appropriate follow-up’ by the agency (when the agency’s staff is concerned) or by a member state (when a border guard of a member state is concerned).

The establishment of a common forum for victims of alleged human rights violations is a markedly positive development. Clarification of some open issues would be welcome e.g. the specifics of an ‘appropriate follow-up’, the sanctions for an ‘inappropriate follow-up’ or the relationship with mechanisms for judicial redress. Still, the major concern is that it leaves one of the most pressing issues unaddressed. In fact, Article 72 appears to deal with ensuring the accountability of the accused border guard, which is undeniably important. However, it must be distinguished from the institutional accountability of the agency and the member states, topics that are not dealt with in detail in the proposed Regulation. As a result, the EBCGA proposal neither offers meaningful clarification on the allocation of accountability between the actors involved in joint operations, nor unequivocally confirms the agency’s own accountability. It may indeed aggravate the existing challenges by broadening the scope of the agency’s powers and competences (including for example a possibility to coordinate joint operations between member states and neighbouring third countries) without providing for the necessary clarification as regards accountability.

It is true that uncertainties in establishing human rights accountability may lay somewhat in the nature of ‘multi-actor-situations’ and be an unintentional side-effect altogether. Yet, there are far more possibilities within the EU legal order than currently applied to address this difficulty. Whilst establishing a complaints procedure for individual victims is an important first step, ending ‘salami slicing’ in human rights accountability requires more decisive measures. The establishment of the new agency provides the ideal opportunity to address the challenges that have troubled Frontex since its establishment. This would not only help individual victims of alleged human rights violations, but also the agency and the involved member states themselves, who would benefit from clarity on the existence and consequences of their accountability.