On 28 June 2022, the European Commission drafted a Memorandum of Understanding which it submitted to the State of Senegal for validation. In the Annex to this document, of which Dialogue Migration has a copy and which is entitled: “DIRECTIVES FOR THE NEGOTIATION OF AN AGREEMENT BETWEEN the European Union and the Republic of Senegal on the actions carried out by the Border and Coast Guard Agency in the Republic of Senegal,” there are six (6) essential points on which the European Commission bases itself in negotiating a new Water status for these Frontex agents on the Senegalese coast. Among these points, there are two (2) that particularly caught our attention.

Item 3, “Tasks and powers of the teams“, recommends the following: “Team members should be empowered to perform all tasks and exercise all executive powers necessary for border control; they should have the right to carry service weapons, ammunition and equipment and use them in accordance with the laws of the Republic of Senegal.”

This means that the European agents who will be sent on a surveillance mission on the Senegalese coast, if the agreement is initialled with the local authorities, will be armed and will have the right to open fire, if they deem it necessary.

Secondly, item No 4, “Privileges and immunities of members of European Border and Coast Guard teams and of the European Border and Coast Guard,” which has aroused the indignation of many observers and of human rights defenders, calls for total immunity of European agents vis-à-vis Senegalese courts. « (…) In particular, such personnel should enjoy full immunity from the criminal jurisdiction of the Republic of Senegal in all circumstances. They must also enjoy immunity from the civil jurisdiction of the Republic of Senegal for acts performed by them in the exercise of their official duties,” the European Commission said in the MoU.

It should be noted that this agreement, not yet signed, should apply throughout the Senegalese territory. Necessary adjustments related to geographic scope may be made during negotiations between the two parties. It should also provide for the possibility for Frontex assets to carry out joint and rapid operations in the areas of intervention.

Human rights defenders warn on the dangers related to the signing of this agreement

But the Director of Amnesty International Senegal is formal. “Senegal must not sign an agreement that grants full immunity to Frontex officers deployed on its territory,” Gassama said.

For Ousmane Amadou Diallo, Researcher at Amnesty International, “There is no reason for the State of Senegal to sign such an agreement which is in violation of potential rights related to justice, truth and transparency.” For him, “the dangers of signing such an agreement would be multiple. In particular with regard to the protection of migrants’ rights.”

He adds that “the European Union has been working for several years to control the flows of migrants who pass either through the Sahel or the Atlantic to reach the Schengen countries. So Frontex’s expansion has only been increasing for several years. Especially with the presence of agents at the air and border police. But here, we see (on the memorandum of understanding of the European Commission), it will have real implications on the right to justice and even on sovereignty.”

Frontex, a disturbing reputation

The European Border and Coast Guard Agency, better known as the External Borders (Frontex), was set up in 2016 by the European Union, on a proposal from the European Commission, in response to the migration crisis in Europe. This was followed by a limited mandate from its predecessor, the European Agency for the Management of Operational Cooperation to External Forests (set up in 2004), to help Member States secure their external borders that do not have sufficient staff and equipment. The increase since 2015 in the number of migrants arriving in EU countries via the Mediterranean Sea and the Balkans from Africa, the Middle East and South Asia, is the foundation of this agency, which has its headquarters in Warsaw (Poland).

In 2019, Frontex’s powers are reinforced by a mandate to create a European Border and Coast Guard. The latter is responsible for patrolling and securing along the countries of the European Union (Schengen area in particular). But in the course of that same year, investigations by three major German (ARD  and Correctiv) and English (The Guardian) media groups  concluded that Frontex was guilty of violations of refugees’ fundamental rights. The British media even published recordings confirming collaboration between Frontex and the Libyan coast guard.

This is not all, in 2020 also an investigation, which is still ongoing, is opened on the said agency, by the Anti-Fraud Supervisory Body of the European Union (OLAF). It involves charges of “harassment, misconduct and refoulement of migrants”.

Italian journalist Sara Creta, one of the winners of the 2022 European Press Prize,   and one of the investigative journalists who published the Frontex investigations, expressed doubts about the agency’s transparency. “In recent years, Frontex has seen its mandate and budget increase at a rapid pace. It is now the largest agency in the EU. Its budget has increased from €6 million in 2005 to €750 million in 2022. However, safeguarding transparency does not seem to have kept pace,” she said and then adds: “This agency has been subjected to severe external scrutiny by institutions, organisations and legal bodies. It is currently the subject of more than ten inquiries by the European Parliament, the European Ombudsman and the EU’s European Anti-Fraud Office (OLAF).”

It should be noted that on October 14, 2022, Frontex reacted to all allegations and investigations into its activities, via a communication. “The Agency takes the findings of investigations, audits and reviews seriously, and uses them as opportunities to change and improve,” reads the document published on their official website. Moreover, the controversy generated by the accusations published in the press, pushed Fabrice Leggeri, Director General since 2015, to resign in April 2022 and to be replaced by the Dutchman Hans Leijtens.

Stalled negotiations with Senegal, a solution found with AFIC?

Negotiations to sign the Memorandum of Understanding submitted to the Senegalese authorities by the European Commission had still not started in January 2023, according to Africa Intelligence. Nevertheless, the AFIC (Africa-Frontex Intelligence Community) project launched since 2017 by the EU in 8 African countries that are Côte d’Ivoire, Gambia, Ghana, Mauritania, Niger, Nigeria, Senegal and Togo, to officially “collect and analyze data on cross-border crime and support the authorities involved in border management”, could serve as a pretext for Frontex to operate in these targeted African coasts.

At least that’s what Italian journalist Sara Creta thinks, contacted by Dialogue Migration. “For me the EU proposes to send Frontex guards and drones to Senegal, disguising it as ‘cooperation’ rather than presenting it for what it is: a new, stricter strategy for stemming migration, forced return and externalising borders, based on the structural imbalance of power and the stifling of the rights of migrants and asylum seekers.”

A closing meeting of this project was held on 22 February 2023 in Dakar bringing together officials from the European Commission and agents from the 8 targeted countries including Senegal (Photo). According to the statement that sanctioned this Dakar meeting, AFIC was set up “to promote regular exchanges on migrant smuggling and other threats to border security affecting African countries and the EU”.

“Europe is once again blind in tackling the effects of migration”

Our colleague added: “The plan to send Frontex guards to Senegal to stop departures would only displace and redirect migratory routes, as well as human traffickers once again.” According to her, “Europe is once again showing blindness, tackling the effects rather than the root causes of mobility”.

On the immunity claimed by the European Commission for its Frontex agents who would operate on Senegalese territory, Sara Creta recalls that this was the case in the Western Balkans where they operated under the cover of “Working Agreement”. She believes that “This would be particularly controversial as the agency is still being prosecuted for its lack of transparency, including workplace harassment, mismanagement and financial irregularities. But also, for its involvement in illegal pushbacks of asylum seekers and migrants at the EU’s external borders.”

We contacted the Ministry of the Interior, which oversees the Directorate of Territorial Surveillance (DST) to obtain its position on this memorandum of understanding. All our requests went unanswered.