Closing the accountability gap: the case for a complaints mechanism for EU support to security actors

By Margot Jones

In recent years, the European Union has increased its support for security actors in partner countries. After approving an amendment to the Instrument Contributing to Stability and Peace (IcSP) enabling the EU to provide support for “Capacity building of military actors in support of development and security for development” (CBSD), the Council is now considering a proposal for the creation of a new inter-governmental instrument with an expanded scope called the “European Peace Facility” (EPF) to finance external activities with military and defence implications.

These developments represent a clear and uncharted shift in the EU’s ability to equip third-country armed forces, thereby also heightening the risks that EU funds could support increased violence against civilians, human rights violations, impunity, and corruption. While the EU cannot be held solely responsible for every harmful action taken by partner security actors, it should consider its responsibility for the ongoing support the EU is providing, which could enable human rights violations, and strengthen its accountability architecture accordingly.

One such accountability innovation could be the creation of a civilian complaints mechanism, which would be applicable to the proposed European Peace Facility and designed to collect and address potential grievances by affected populations.

Why should the EU establish a complaints mechanism?

A complaints mechanism could:

  • Strengthen the EU’s ability to detect and investigate potential issues in partnerships with security actors such as corruption, diversion of resources and human rights abuses. These issues are notoriously evasive and difficult to track, especially in remote regions where EU delegations and other institutional actors have limited access and visibility.
  • Promote trust between the security actors and the communities they serve, which is a crucial component for the success of any meaningful security sector assistance effort.
  • Materialise the core Union value of respect for human dignity in the EU’s external policy. While civilian casualties and human rights violations should be avoided at all costs, it is crucial to recognise when harm has been done and address the pain and grief of communities trapped in the cross-fire of conflict.
  • Tackle the accountability gap which pervades the EU’s external policies: those directly affected by decisions taken in the EU context on issues of support to third-country security actors are not part of its constituency and therefore have little or no recourse for raising potential issues to the EU directly. In addition, the European Parliament is sidelined in inter-governmental matters like the European Peace Facility (EPF), and the European Ombudsman cannot receive complaints from non-EU citizens.
  • Work towards protecting the EU’s credibility and reputation as a positive actor for peace. As the EU builds its support to third-country armed forces, it should address and protect itself against the risks of anti-European perceptions by the communities its policies affect. This is especially important when considering the coherence of the EU’s various external instruments: the EU’s development aid, mediation and disarmament efforts may become less effective over time if the EU’s support to security actors in the same region is perceived negatively by beneficiary communities and allies.

What other EU complaints mechanisms already exist?

The most well-known EU complaints mechanism is the European Ombudsman (EO), which has the power to investigate complaints related to maladministration in any European agency or body. The EO’s powers in the area of Common Foreign and Security Policy (CFSP), however, are limited for two main reasons: (1) the intergovernmental nature of CFSP means that activities (such as CSDP missions) do not qualify as EU bodies due to ambiguity in their legal personality, and (2) given that complainants must be either EU citizens or residents, the Ombudsman’s services are not available to complainants from third countries affected by the EU’s external policies.

To overcome these limitations, two EU agencies with an external dimension, the European Investment Bank and Frontex, have each established their own complaints mechanisms.

The European Investment Bank’s complaint mechanism was launched in 2008 to strengthen development outcomes by building channels of accountability and promoting relationships of trust with beneficiary communities. As a member of the IFIs Independent Accountability Mechanisms (IAMs) network, the EIB complaints mechanism follows a set of broadly-recognised key standards such as accessibility and transparency (cases are published on the mechanism’s website). The EIB has also signed a memorandum of understanding to establish a two-tiered format with the European Ombudsman which enhances the mechanism’s independence and ensures that third-state citizens have access to the same standards of accountability as EU citizens and residents.

The Frontex complaints mechanism was created in 2016 after an own-initiative inquiry by the European Ombudsman acknowledged the sensitivity of border-management decisions and actions from a human rights perspective. The Frontex mechanism, however, fails to meet many of the key standards for accountability mechanisms: its independence is questionable given that it solely reports to the agency’s Executive Director, its proceedings are not publicly available, undermining its transparency, and it has limited investigatory powers beyond the determination of admissibility (if complaints are found to be admissible, they are handled or dismissed by the relevant Member States).

Key features of an ideal complaints mechanism

Disparities between the EIB and Frontex complaints mechanisms underscore the importance of clearly setting out the core features for an effective complaints mechanism. A new complaints mechanism for the EU’s support to security actors, which would cover the proposed European Peace Facility (EPF), should aim to implement these best practices and avoid documented pitfalls.

To this end, there exists extensive literature detailing the various features that an effective complaints mechanism should possess:

  • The mechanism should be accessible: simple and available at the community level. Information about the complaints mechanism should be widely disseminated, and there should be several methods to report complaints, with clear consideration for the risks taken by complainants in repressive environments and the potentially gendered and class-related barriers to complaints reporting.
  • The mechanism’s independence should be ensured by the institutional set-up and promote an impartial and objective approach in all investigations and decisions. Ideally, a complaints mechanism investigating allegations against the institution it is also part of should be backed up by an external investigatory body such as the European Ombudsman.
  • The mechanism’s proceedings should be transparent and publicly available to ensure clarity for the complainant and promote impartiality. The complaints mechanism should also establish clear policies and procedures to handle cases with due consideration for their sensitivity and protect the complainant against potential retaliation measures, for example by systematically obscuring names and other identifying information in published reports. This would be especially crucial for protecting human rights defenders (HRD’s), who work in fragile and potentially repressive environments, and are often targets for reprisal by their own governments.
  • The mechanism should be endowed with the sufficient resources and mandate to investigate complaints in a timely and thorough manner.
  • It should be clear which institution or body will ensure that complaints are addressed and redress is applied wherever possible. This may require a larger debate regarding the liability of the various activities under the EU’s CFSP, in particular in relation to the EU’s support to security actors, and tying the complaints mechanism to larger funding structures which have a clear legal personality.
  • The complaints mechanism should not replace – or be seen to replace – national accountability mechanisms (e.g. national ombudsman, parliamentary oversight, internal whistle-blowing mechanism, civilian casualty tracking cells and other internal procedures documenting incidents of civilian harm, etc.). The mechanism should rather complement and help strengthen such nationally-owned processes.
  • The mechanism should also be complemented by strict internal EU reporting and evaluation procedures for the implementation of EPF assistance measures, as the EU should not rely on external complaints alone to identify issues, especially in very fragile contexts.

Conclusion

If the European Union continues to invest towards an increasingly militarised approach to managing conflicts, crises and insecurity – a trend which many peacebuilding actors have expressed deep concern about – it should enhance and innovate in its democratic oversight and accountability structures. In addition to continuing the development of internal reporting and accountability mechanisms both in partner armed forces and within the EU system, the EU should create and operate a complaints mechanism to address individual external grievances related to the EPF – if established – and which could also be considered for other forms of EU engagement with security actors.

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