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Challenging the Complicity of Frontex’s Aerial Surveillance Activities in Crimes Against Humanity

Court of Justice of the European Union, May 2024

front-LEX and Refugees in Libya filed a legal notice pursuant to Art. 265 TFEU requesting Frontex’s Executive Director, Mr. Hans Leijtens, to partially terminate the Agency’s aerial surveillance activities in the ‘pre-frontier area’ in the Central Mediterranean.

To prevent asylum seekers fleeing crimes against humanity in Libya from reaching the EU, Frontex systematically and unlawfully transmits the geolocalisation of refugee boats at high seas to the Libyan Coast Guard/Libyan Militia. Every day, Frontex allows for the systematic interception and ‘pulling back’ of refugees to Libya, from where they have managed to escape by the skin of their teeth, and where they are subjected once more to crimes against humanity. Now, front-LEX, on behalf of X.Y. a refugee trapped in Libya, brings an unprecedented legal challenge against Frontex’s airborne complicity.

Between 2021 and 2023, Frontex has shared 2,200 emails communicating the exact geolocalisation data of refugee boats with Libyan actors to enable their unlawful interception and forcible return back to Libya. There, the ‘pulled back’ refugees are arbitrarily detained and subjected to crimes against humanity of, inter alia, murder, enforced disappearance, torture, enslavement, sexual violence, rape, and other inhumane acts. It is Frontex’s sharing of geolocalisation data which enables the commission of these crimes – making the Agency complicit in the ongoing and systematic attack directed against refugees and asylum seekers in the Central Mediterranean.

Frontex’s complicity in these ‘pullbacks’ and ensuing crimes against humanity committed against refugees has been well-documented by leading human rights organisations, UN organs, and investigative journalists. Now, based on this clear-cut evidence, front-LEX and Refugees in Libya filed an unprecedented legal notice challenging the Agency’s airborne complicity in crimes against humanity committed against people on the move.

UPDATE – October 2024

In October 2024, front-LEX and Refugees in Libya filed a groundbreaking legal action for failure to act before the Court of Justice of the European Union (The General Court) on behalf of FM, a young  asylum seeker from Sudan stranded in Libya, with no access to an asylum procedure or any form of protection from the crimes against humanity committed against migrants there. The case seeks to hold Frontex accountable for its complicity in the systematic interception and ‘pulling back’ of refugees to Libya, from where they have managed to escape by the skin of their teeth, and where they are subjected once more to crimes against humanity.

After fleeing persecution in Sudan, FM lives in hiding in Libya. He was recently diagnosed with a serious illness and lacks access to medical care, shelter, or basic safety. Upon his imminent and unavoidable crossing of the Central Mediterranean in search of international protection, and like thousands of other migrants and refugees intercepted at sea, he faces the risk of being detected by Frontex, handed over to Libyan entities, and, upon his forced disembarkation in Libya, being subjected to arbitrary detention, torture, sexual violence, and even death in Libyan detention camps. While every migrant in Libya is at risk of being arbitrary detained and subjected to crimes against humanity, this risk is exponentially higher for those intercepted at sea by Libyan entities. Thus, FM’s only chance to protect his life is to cross the Mediterranean, but to do so he needs to be sure that he won’t be detected by Frontex.

As our legal filing outlines, Frontex claims that its one and only legal obligation is to inform the “responsible” rescue coordination centre — which in many parts of the central Mediterranean is nominally Libyan. But this is a legal fiction: Frontex has more than one legal obligation, and among them is a prohibition on returning persons to places where they will face persecution or torture. This obligation derives from EU primary law and is constitutional in nature.

Without Frontex’s aerial surveillance activities and communications infrastructure, Libyan authorities would not be able to detect refugee boats at sea. FM v. Frontex seeks a declaration that Frontex unlawfully failed to act and to fulfil its obligations under Article 46(4) of its founding Regulation, by not suspending or terminating the unlawful provision of information to Libyan entities on the location of refugee boats fleeing crimes against humanity in Libya.

UPDATE – April 2025

The General Court has decided to reserve its decision on Frontex’s plea of inadmissibility until it rules on the substance of the case. For the first time in such judicial proceedings brought by victims of its activities, the Agency will be required to submit a Defence to our corroborated allegations, and the Court will examine the substance of the case.

This is a critical step in advancing accountability for the agency’s illegal practices.

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