Salami slicing human rights accountability: The case of the European Border and Coast Guard Agency
Human rights accountability in the context of Frontex-coordinated border control operations is being dispersed among the involved parties. Regrettably, this is likely to continue after the establishment of the new European Border and Cost Guard Agency.
A longer version of this post appeared on EJIL: Talk!
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 piece of research that would form one meaningful paper as several smaller 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’s mandate and to reflect those changes by renaming it. Similar to Frontex, an important task of the EBCGA will be the organisation of joint border control operations. 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 operations. 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. 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 EBCGA in place and should ideally take lessons from the EBCGA’s older sibling Frontex. 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.
The difficulties in ascertaining the existence and extent of the respective human rights accountability of the involved Member States and Frontex cause it to be dispersed among them. The resulting ‘salami slicing’ strips accountability of its essential characteristics namely, providing meaningful redress to the victims and preventing future wrongdoing. Therefore, it is crucial that the Regulation establishing the EBCGA sets out the precise role and powers of all involved actors as well as the distribution of accountability among them if things go wrong.
As regards the latter, 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. While the establishment of a common forum for victims of alleged human rights violations is a markedly positive development, Article 72 in fact appears to deal with ensuring the accountability of the accused border guard. This is undeniably important, but 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, far more possibilities exist within the EU legal order than are 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.
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Frontex and the European System of Border Guards: The Future of European Border Management, in M. Fletcher et al. (eds.), The European Union as an Area of Freedom, Security Corte europea non ha avuto modo di esprimersi sul punto e la questione delle eventuali responsabilità per omissione dell'Agenzia risulta ancora poco indagata in dottrina.
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