EU slaps itself on wrist for surveillance tech transfer to Africa without rights assessment
The European Ombudsman has agreed with civil society complainants by concluding that the European Commission was “not able to demonstrate that the measures in place ensured a coherent and structured approach to assessing the human rights impacts of EUTFA projects” and recommends that it does better next time.
The complainants have welcomed the findings.
Created in 2015, the European Union Emergency Trust Fund for Africa aims to tackle irregular migration from Africa to Europe and improve the bloc’s abilities to identify migrants and deport them, as well as aid displaced persons and attempt to grow African economies to make migration to Europe less appealing.
As well as technology transfers to African states, training was also provided to police and security agencies in Africa and the Balkans to monitor internet and social media users.
Five billion euros was pledged and the Trust Fund for Africa site states 152,000 people are receiving basic social services and 185,000 “migrants in transit and forcibly displaced people protected or assisted” and lists all its funding projects under way in 26 countries across the Sahel, Lake Chad, Horn of Africa and North Africa.
In October 2021, Privacy International along with civil society organizations Access Now, the Border Violence Monitoring Network, Homo Digitalis, International Federation for Human Rights (FIDH), and Sea-Watch submitted a complaint to the EU’s Ombudsman, Emily O’Reilly, stating that risk and impact assessments should have been carried out to ensure any surveillance technology transfers do not lead to human rights violations.
In particular, the complainants highlighted two types of EUTFA project: those creating biometric databases and those providing surveillance equipment, and pointed out the lack of laws in place to safeguard citizens.
As per the Ombudsman’s decision, “The complainants gave an example of a project under the EUFTA through which the authorities in Niger were provided with surveillance drones, surveillance cameras, surveillance software, a wiretapping centre and an international mobile subscriber identity catcher. The transfer of this equipment came in the context of a crackdown on activists in Niger.”
The Ombudsman asked the Commission whether it carries out human rights risk or impact assessments before helping other countries build surveillance capabilities. The Commission said “the EU Financial Regulation and EU Trust Funds Guidelines apply to EUTFA projects. Neither sets out a legal obligation to carry out a human rights impact assessment before the activities take place.”
The Commission acknowledged that the Treaty on European Union requires that external operations be guided by the “principles inspiring the EU itself: democracy, rule of law, universality and indivisibility of human rights and fundamental freedoms, respect of human dignity.” The Commission also accepted that human rights assessments must be taken into account.
This led to the Ombudsman to the position that the question put to her is “not a question as to whether surveillance capabilities should or should not have been transferred. The question is whether the Commission informs itself of and assesses fully and properly risks to human rights in that context.”
The Ombudsman disagrees with the Commission’s stance that its multi-layered approval processes are sufficient to mitigate human rights risks. Logistical risks rather than human rights risks were prioritized.
Rather than suspend projects, the Ombudsman recommends assessments prior to future projects: “While the Commission could decide to suspend funding if it finds human rights violations in the implementation of EUTFA projects, this is a reactive measure and it appears it would be possible only with certain projects and not those related to technology or capacity transfers. The goal should instead be to prevent such violations, and prior human rights impact assessments can play an important role to this end.”
The inquiry identified the shortcoming that the Commission was unable to show it had a system for assessing human rights and the Ombudsman suggests that projects “should require that an assessment of the potential human rights impact of projects be presented together with corresponding mitigation measures in a standalone document or as a separate, distinct section of each action document.”
Complainants welcome the decision
“This landmark decision in response to our complaint marks a turning point for the European Union’s external policy and sets a precedent that will hopefully protect the rights of communities in some of the most vulnerable situations for the years to come,” comments Ioannis Kouvakas, senior legal officer at Privacy International in a prepared statement.
“We welcome the Ombudsman’s decision which scrutinises the EU’s failure to protect and respect the human rights of people living off its shores,” comments Marwa Fatafta from Access Now.
“The EU’s ongoing surveillance transfers to authoritarian regimes in Africa and elsewhere cannot continue business as usual. We hope this decision will help hold the EU accountable to its values overseas, and protect the rights and freedoms of vulnerable communities from intrusive tracking and government surveillance.”