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EU ombudsman criticizes handling of 2023 migrant boat tragedy

The European Union’s Ombudsman has criticized the handling of the 2023 migrant boat tragedy in the Mediterranean, during which more than 600 people are thought to have drowned.

In a just-published report it has also questioned fundamental issues related to the operations of Frontex, the EU’s Border and Coast Guard agency.

The report said that Frontex was unable to fulfil its fundamental obligations and that it was too reliant on member states. It called on EU legislatures to investigate the handling of the migrant crisis in the Mediterranean, and to address what it described as a “fundamental rights gap” that restricts Frontex in its operations.

When created by the EU, Frontex was described as an operation that would “support and coordinate” the efforts of member states for border security and cross-border crime. The agency does have extensive resources when it comes to maritime situations, the fact that the agency operates “in support” of member state agencies means that it must wait until a member state requests assistance. Member states can also redirect Frontex during an operation.

The debate, therefore, goes beyond the deaths of the migrants and enters the field of Brussels vs individual state powers. Previous reports have accused individual states of sending Frontex away or refusing its resources while efforts were made to “push back” migrants.

EU Ombudsman Emily O’Reilly wrote in the report that “Frontex includes ‘coast guard’ in its name, but its current mandate and mission clearly fall short of that. If Frontex has a duty to help save lives at sea, but the tools for it are lacking, then this is clearly a matter for EU legislators.”

Several investigations were launched after a migrant boat named Adriana sunk last year, generating a great deal of publicity. Greece’s Ombudsman and the Greek Naval Court are continuing their investigations. The Hellenic Coast Guard declined to undertake an internal review, despite accusations that its boat contributed to the sinking and covered up its actions by seizing survivors’ cell phones.

The Adriana had been identified as a risk by Italian authorities, Frontex and other international aid groups well before the disaster. It left Libya on June 10th 2023 with about 750 people on board – horrifically overcrowded. The vessel was in Greece’s region and four days later it foundered. All but about 100 of the migrants died. Only 80 bodies were recovered.

The Ombudsman used the investigation into the accident to also investigate the agency’s response in other maritime emergencies, its mandate, and its structure. The report has concluded that Frontex has no internal guidelines on issuing emergency signals, and that there was a failure to ensure fundamental rights monitors were sufficiently involved.

In the case of the Adriana, a Frontex surveillance plane spent 10 minutes over the vessel on June 13th, as part of a standard maritime surveillance patrol. It shared with the Italian and Greek authorities video footage and information about the boat’s conditions and sea state. Frontex pointed out that the vessel was overcrowded and that no lifejackets were visible. However, Frontex said that the boat was not in immediate danger. Frontex says it believed Greece was handling the situation.

The report acknowledges it is contested if a Mayday should have been issued (it was not) and if it such a Mayday, if issued, would have prevented the tragedy. An internal report at Frontex concluded that, while the agency complied with its obligations, in the future similar cases should be more thoroughly assessed.

Frontex made four subsequent offers of assistance to the Greek authorities on June 13th and 14th, but Greece did not reply. A second pre-planned surveillance on June 13th was diverted. Frontex did not return to the Adriana until after the vessel was lost. Under the current regulations, Frontex needed Greek permission to go to the location of the Adriana.

The EU Ombudsman said that “it is not unlikely that there will be a repeat of the Adriana tragedy unless there are significant changes to the legal and operational framework for responding to maritime emergencies”.

Migrants in distress cannot at the moment rely on proactive SAR operations at the EU level. The individual states’ coast guards hold sway.

The Ombudsman has no legal authority to require changes. O’Reilly wrote however that the incident should cause wider reflections on the changes needed to demonstrate the EU’s commitment to saving lives at sea.

A request was made for Frontex to resolve internal issues, while the report calls on the EU to establish an independent commission to assess the reasons for the large number of deaths in the Mediterranean.

The report also wants to consider whether Frontex should suspend or terminate activities when a member state has persistent violations of fundamental rights.