How the EU Death Machine Works
‘We were in the water for 13 hours. They [my wife Shifaa, 30, and our two children – a 9 months old Asem and a 5 year-old Abdulwahab] were alive with me right up to the last hour. After that I could do no more. Can you imagine that they died while I was holding them? I don’t understand why I didn’t die with them.’[1]
Since 2015, more than 27.500 innocent people died or ‘went missing’ in the Mediterranean. They drowned by themselves thanks to villain smugglers, the Council submits; accountability for the death toll is a complex matter, the Court of Justice finds; besides the geopolitical times are complex – the Commission is right. But what an accident: mare nostrum, a great thoroughfare, turned itself into a racialized grave. Yet, these deaths at EU borders, just as mass abuse and kidnappings by EU-funded and equipped thugs in Libya do not happen by chance. The EU-Belarus border is another locus of torture and violence. All this is a successful implementation of well-designed lawless policies by the Union in collusion with the Member States.
EU law works as designed. The death machine it put in place is behind the unprecedented orgy of violence. The machine runs on EU lawlessness law – the deployment of the Rule of Law to void the law of any substance and render migrants’ rights unthinkable. Gráinne de Búrca’s fear has materialized: the EU graduated into a major agent of injustice. ‘Thou shalt not oppress the stranger’ (Exodus 23:9) emerges as the opposite of EU’s actions. ‘Eurowhiteness’ is the best available diagnosis of Europe’s self-appointed cosmopolitanism. Luigi Ferrajoli is absolutely right that ‘only racism makes it tolerable that thousands of people drown every year in the Mediterranean’.
Torture, pushbacks and killing of thousands either directly or via proxies happen in an atmosphere of near-total lack of accountability and seemingly outside the reach of the law. While acting in concert with its Member States, the EU is trying on a new function: it is now an accountability shield for mass crimes, generating the fog of faux complexity for all the perpetrators to hide behind: ‘it is not us!’. Shielding the designers and operators of the EU’s death machine against any accountability emerges as an expression of the new European solidarity, bridging ‘liberalism’ and ‘illiberalism’. The evil law underpinning this works through appeals to the ‘Rule of Law’ and ‘human rights’, while overseeing killing at industrial scale.
Below we map key legal techniques deployed by the designers of the EU’s death machine, who hoped to deter migration by killing. These are deployed from the Mediterranean to the Belarusian forest.
Technique No. 1: ‘Soften’ the Rule of Law to Extinguish Rights
The first EU lawlessness law technique consists of EU Institutions moving international agreements with the poorest countries and failed states outside the realm of ‘law’ proper by recourse to ‘soft’ law. Besides being secret and unreviewable, such fake law switches off any rights of those assaulted by the Union and its members. Consider non-binding readmission agreements concluded with Afghanistan, Guinea (not published), Bangladesh, Ethiopia (draft leaked by Statewatch), the Gambia (not published) and Ivory Coast (not published) – always impoverished unstable countries subjected to significant EU influence. Another example is the cash for migrants deals concluded with Turkey, Libya (the Malta declaration endorsed the deal concluded between Italy and Libya and was partly sponsored by the EU) and most recently Tunisia, among others. Such ‘soft’ deals shower authoritarian governments and local warlords with cash in exchange for retaining migrants at any cost while eliminating any EU accountability for human rights violations by proxy. Supposedly ‘non-binding’, this war on human rights ignores rules for the adoption of international agreements and is oblivious of Human Rights Law and Rule of Law standards. The absence of transparency excludes legal possibilities to dispute (effectively) the rightlessness these agreements create. Claims that informal deals make negotiations with third countries easier and are more efficient in terms of results have been convincingly disproven. Moreover, lawlessness and human rights abuses are not a legitimate result to seek. The only reason for the deals is avoidance of essential Rule of Law guarantees. The EU proactively creates legal loopholes to escape any kind of scrutiny, accountability or responsibility–– the first technique of lawlessness law.
Technique No. 2: Misuse of Our Money: The Purse of Lawlessness Law
EU money has been invested into the creation, maintenance and extension of the ‘shadow immigration system’, which recognises no human rights protections and is premised on lawlessness and the absence of accountability – the direct antipode of what EU law unconditionally requires. The EU Trust Fund for Africa (EUTFA) constitutes a paradigmatic example of this. Created at the Valletta Summit on Migration in November 2015 through a constitutive agreement concluded between the Commission and EU Member States, the UK, Norway and Switzerland, EUTFA used the banner of ‘development’ set out in the Treaty to crack down on migration from the former colonies to the EU, funding serious human rights violations as documented by journalists and denounced by the European Ombudsman, all aimed at making migration as deadly as possible. To give an example, the Libyan thugs self-styled as a ‘coastal guard’ received patrol boats, radio-satellite communication devices and other equipment financed by the EUTFA, resulting in torture, enslavement, deaths as well as imprisonment of migrants fished out from the sea, who committed no crime: the so-called shadow immigration system, which implies interception of migrants by EU-equipped criminals acting on EU intelligence in places immune to any human rights guarantees. As of December 2022, the money spent on death and torture of the innocents branded as ‘development’ amounted to EUR 4.5 billion. EUR 3.872 million came from the European Development Fund and the EU budget – the rest from states. The strategic objective of ‘migration management’ (installing deadly dangers on the way of migrants) absorbed one third of the money in the fund. Assaults on rights were supported by the EU, inter alia, in Libya, Morocco, Tunisia, and Egypt.
The EUTFA is one of several ‘EU development funds’ for external actions for emergency, post-emergency or thematic actions. What is peculiar with the EUTFA is that it falls outside of the EU budget strictly speaking, making it very malleable in achieving its stated aim of contributing ‘to a flexible, speedy and efficient delivery of support […] to contribute to better migration management’. The Fund is not obliged to follow any of the usual governance processes required for development instruments, including for the oversight of spending and the selection of the projects to fund. This explains why the EUTFA has mainly been used to impose the European migration management agenda which prioritises the strategic objective of ‘migration management’ involving known atrocities and implying assaults on human rights and absence of accountability: EU lawlessness law is at play. Investing billions in this way is in direct conflict with EU values of the Rule of Law and human rights protection, as rightly underlined by the European Court of Auditors.
Strikingly, in supporting rights abuse, EUTFA ignores scientific evidence that its approach runs counter to the ‘goals of development’ it sets out. Branko Milanović is right: migration is development. There is no other way to boost the development of the least affluent places than by allowing the people to get out and back in again. Moreover, development – even if it is not achieved through migration – implies migration and not the other way around. What is more, rising death tolls do not diminish migration at all, an unsurprising development given that people seek dignity attempting to overcome of passport apartheid.
EUTF for Africa came to an end, but not the EU money to purchase lawlessness and rights abuse: programmes that the EUTF funded will continue being implemented up to 31 December 2025 and the fund has been transposed ‘building on the work initiated since 2015’ into the EU Budget under the Neighbourhood, Development and International Cooperation Instrument (NDICI-Global Europe), continuously feeding the evasion of the Rule of Law as exemplified by the recent agreement with Tunisia.
Technique No. 3: Deploy FRONTEX, the Agency of Lawlessness
FRONTEX is a crucial element of the EU’s death machine. On the books, FRONTEX shares responsibility for border management with the Member States, while they retain primary responsibility in this field. This system of shared responsibility is based on the absence of accountability mechanism for FRONTEX, facilitating the Agency’s impunity for human rights violations. The fact that FRONTEX is accountable to the European Parliament and to the Council does not help improve the situation. In a nutshell, FRONTEX functions as follows: when non-white migrants are found, FRONTEX shares intelligence with the Libyan and other thugs on the EU’s payroll and they kidnap the people from the sea, while European border guards sit in port. The kidnapped are then tortured in prisons for the innocents to ensure the second source of funding for the EU’s proxies: ransom money from the families of the abused.
Scholars, NGOs, journalists and the European Parliament have vehemently criticised the way in which the Agency uses its powers and carries out its activities. Despite the denunciation of its participation in systemic grave assaults on human rights from push backs to covering up murder, its responsibility has never been recognized, suggesting that, after 27.000 dead and missing and hundreds of thousands tortured it might simply not exist.
Meanwhile, FRONTEX’ budget keeps growing: