Faculty of law blogs / UNIVERSITY OF OXFORD

Unwitnessing the border


Giovanna Reder


Time to read

4 Minutes

Guest post by Giovanna Reder. Giovanna Reder is a researcher at the University of Bologna, working with LIMINAL, a laboratory investigating the political ecology of migration and border violence. Her research focuses on aerial surveillance in the Central Mediterranean and how networks of aerial control are shifting and shaping this border environment.

On the 18th of April 2020, the European Border agency Frontex took several photos from their surveillance aircraft while flying over the Aegean between Greece and Turkey. The photographs show the Hellenic Coast Guard towing a boat with migrants away from Greek territorial waters and towards the Turkish Coast, conducting a so-called push-back and thereby violating the principle of non-refoulement. The Hellenic Coast Guard was in direct contact with the operators of the aircraft that day and instructed Frontex to change the direction of their asset and fly south – which they did. They turned away before the boat crossed the border, moments before the human rights violation took place.  
Several months after the incident, an internal investigation revealed a handwritten note in which a Frontex employee wrote about the operational area of the Aegean, that the Surveillance Aircraft was withdrawn “so not to witness”. The investigation later confirmed that this decision was taken to prevent witnessing a potential pushback and that “the idea to withdraw aerial assets (...) circulated earlier than the case here under question.” 

While “seeing and sensing” have been flagged out as important mechanisms for the state to control and manage populations, technological means enhanced not only the ability to see but also to un-see. This exemplifies a somehow contradictory narrative. On the one hand, there is an apparent 24/7 monitoring of the border, while at the same time, continuous reports of human rights violations are released. The present authorities don't seem to have taken note of these violations despite them occurring in their area of operations, and within the sensing range of their equipment. The practice of state authorities to unwitness the border is in itself not novel. While in hundreds of cases NGOs like Alarm Phone have documented ignored calls for help to the authorities, calling it the left-to-die-policy. Investigations also revealed how Frontex covered up pushbacks and violated EU regulations. 

aerial picture of a boat taken from a Frontex drone

 The overlap between constant surveillance and deliberate ignorance by states is making it more palpable. New technological means to control the border not only witness the violence, but they also document it and produce evidence, from visual images to traces of data that document the presence of state actors. Since this evidence could incriminate and uncover the harm that the maintenance of the border requires, these technologies have introduced a new form of ignorance and are actively used in the process of obfuscation. Increasingly, the European Union is in a quandary – trying to “manage migration” but doing so “in a humane way”. In light of this contradiction, the practice of unwitnessing offers a loophole: through not being present in the right moment, turning around or turning sensory devices off. This is a deliberate act not to create evidence in the first place, a moment when ignorance fosters impunity.  

James Scott argues that the act of documenting individuals is fundamental for states, as they require visibility of individuals to exercise control over them. This process of observation and documentation is essential for state control, but the capability to overlook, or "un-see," amplifies this authority even more. The control to un-see offers the potential for impunity, mainly by disregarding anything that might challenge the accountability or involvement of authorities. This power to choose when to see the border and the violence used to maintain it, is a structured phenomenon and interrelated with power.  
An important factor when speaking about unwitnessing is the notion of intent: how deliberate is this unseeing of human rights violations? Proctor and Schiebinger explore the concept of the absence of knowledges in their book Agnotology. They challenge the perception of ignorance as a natural void and interrogate the ways in which ignorance is produced and can be structurally maintained. They describe ignorance as a strategic ploy or active construct. Thinking about unwitnessing as a deliberate act extends the common notion of witnessing as a sudden occasion and refers back to its intent. The hypothesis that ignorance can be manufactured allows us to think further about the process of its production. Unwitnessing points out a very specific part of this production process: the critical moment when there is also the potential for witnessing, the exact moment a decision is taken. The turning away – by the witness, the camera or the moment of shutting any sensory device down – describes to us what could have happened instead and bears the importance of it. It includes the decision of the potential witness and evokes questions on the responsibility – maybe duty? - to witness. More than mere ignorance by omission, it includes the assumption of a calculated act, a decision against becoming a witness, against testimony, and against the production of evidence.  
Willful ignorance serves as a base of the practice of unwitnessing, a crucial step to outline the systematic lack of accountability for border violence. Not only does it show the negligence of state actors, but there are also significant implications for legal proceedings and accountability. Unwitnessing is a part of the building of impunity at the border, allowing state actors to orchestrate their knowledge. For litigation, intention is a key element for liability. When accused, the accused actor can refer back to their constructed lack of awareness. Therefore, establishing intent is crucial to prove that the act is indeed one of unwitnessing – a deliberate act.  

The state and its various actors – in this case the European Border and Coast Guard Agency – increase their power through continuous acts of unwitnessing border violence. This, in turn, renders border areas like the Central Mediterranean increasingly unsafe. While this practice is used to foster impunity for the state, it also results in a situation where people crossing borders become selectively visible and invisible. Despite Frontex's assertation that their aerial surveillance helps to rescue people, investigations reveal they have caused an increase in pull-backs to Libya. Moreover, hundreds of people have lost their lives, despite Frontex assets being on scene before, documenting the presence of the boats but in many cases not the violent interceptions and shipwrecks. Unwitnessing heightens the peril of people in search of safety, while state actors turn away.  


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How to cite this blog post (Harvard style):

G. Reder. (2024) Unwitnessing the border. Available at:https://blogs.law.ox.ac.uk/border-criminologies-blog/blog-post/2024/06/unwitnessing-border. Accessed on: 24/07/2024

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