Greece they were—and to say no would have been irresponsible. If Frontex
had followed the course of action recommended by HRW and let Greece
deal with the emergency on its own, how would this have helped the
situation? Would the migrants have been in better conditions? Or is HRW
suggesting that border controls should simply have been lifted and those
wishing to enter the Schengen area irregularly via Greece have been left
free to do so?150
While Frontex may have a legal obligation to respond to a request by a member state for a
RABIT operation in an emergency, the response should not be “at all costs.” The response
must still comply with the binding obligations to respect fundamental rights—whether
under the EU Charter or the ECHR. Therefore Frontex cannot lawfully engage in activities
which violate the absolute prohibition on torture and inhuman and degrading treatment.
As the ECtHR has re-iterated on multiple occasions, no circumstances, no behavior of the
victim (such as illegal border crossing), or even an emergency “threatening the life of the
nation” (which the migrant emergency was not) justifies resort to use of inhuman and
degrading treatment. For migrants who are held in the appalling conditions of Greek
detention centers, whether they were initially detained by Frontex patrols or by Greek
border guards operating alone is irrelevant. To the extent that the presence of “guest”
border guards has curbed any other illegal practices such as unlawful push-backs or
physical abuse of detainees by Greek agents, then that monitoring role could have been
performed without actual assistance in the apprehension and transfer of migrants to
inhuman conditions.
Frontex and participating states should have explored other options at the time of Greece’s
request for a RABIT deployment. For example they could have considered detaining
irregular migrants elsewhere in the Schengen area where conditions were compliant with
EU standards, including other areas of Greece where detention standards are acceptable,
such as on Samos Island, which Human Rights Watch suggested to Frontex at the time.151
150 Letter to Human Rights Watch, May 19, 2011, p. 2 on file with Human Rights Watch.
151
“We would like to bring to your attention that detention facilities for migrants on Samos and Chios Islands with a total
capacity of more than 400 places are currently empty…. We therefore decided to call on Greek authorities to immediately
start transferring migrants from the Evros region to the Aegean Islands…. We therefore believe that our proposal is realistic,
doable, and would immediately improve the desperate conditions of many migrants. We therefore urge you to press Greek
authorities to start transferring migrants as a matter of priority.” Email letter from Simone Troller, senior researcher, Human
Rights Watch, to Gil Arias Fernandez, deputy executive director of Frontex, December 7, 2010, on file with Human Rights
Watch.
51
HUMAN RIGHTS WATCH | SEPTEMBER 2011
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