The EU will not be able to recover any of the €150m (£125m) paid to Tunisia despite the money being increasingly linked to human rights violations, including allegations that sums went to forces security officers who raped immigrant women.
The European Commission paid that amount to the Tunisian government in a controversial migration and development deal, despite concerns that the North African state was increasingly authoritarian and its police largely operated with impunity.
An investigation by The Guardian last month revealed allegations of countless abuses by EU-funded security forces in Tunisia, including widespread sexual violence against migrants.
It has now been discovered that there is no system in place to recover the funds, even if the money is linked to serious human rights violations.
European funding rules dictate that money must be spent in a way that respects fundamental rights, with stricter requirements introduced in 2021 to ensure any spending does not contravene human rights.
However, no human rights impact assessment was carried out before the EU-Tunisia deal was announced last year. The money was paid to Tunisia in March.
Catherine Woollard, director of the European Council on Refugees and Exiles, said human rights abuses were inevitable with a migration deal that aims to prevent people from reaching Europe by boat from North Africa.
He said: “Human rights violations are a feature, not a bug, of agreements with repressive governments. “It is about subcontracting not only people but also abusive actions when Europe does not want to get its hands dirty.”
Tunisia's controversial president Kais Saied won a second five-year term this week with an election victory condemned by human rights groups and further cementing the country's slide from the birthplace of the Arab Spring to an autocracy.
The victory for Saied, who has a history of racist tirades against immigrants from sub-Saharan Africa, has raised concerns that it could precipitate new abuses by his security forces.
Brussels' agreement with Tunisia and its compatibility with the bloc's human rights obligations is now the focus of an investigation by the EU Ombudsman. Emily O'Reilly's report, due in the coming weeks, is likely to question the integrity of the deal and whether there are measures to suspend EU funding if human rights violations are identified.
O'Reilly said it had been “really complicated” to track funding as part of the EU-Tunisia deal.
She said: “If you find that the equipment you have funded for Tunisia is being used in a way that damages the fundamental rights of migrants, will you get the money back? How are you going to get the money back?
A commission spokesman said the €150 million was paid to Tunisia after “mutually agreed conditions” were met.
In another development underscoring growing unrest over the deal, the International Criminal Court (ICC) could launch an investigation into the abuse of sub-Saharan migrants by Tunisian authorities.
Such a measure would be extremely embarrassing for the commission and would be modeled after a comparable measure. consultation on the mistreatment of immigrants in neighboring Libya.
British lawyer Rodney Dixon KC filed a complaint with the ICC over migrant abuse five days after the Guardian's allegations that members of the Tunisian national guard were raping women and beating children.
Dixon said: “We look forward to working with the [ICC’s] prosecutor's office in the coming months to ensure that this matter is investigated given the seriousness of the allegations. “There is a clear legal basis to proceed.”
Even before the latest scandal involving Tunisian security forces, EU officials were already uneasy about backing a migration deal that has become a model for agreements with other states such as Egypt and Mauritania.
An internal document from the EU diplomatic service leaked last month raised concerns that the EU's credibility could be affected due to its attempt to tackle migration through payments to repressive regimes.
A commission spokesman said: “Respect for the human rights and human dignity of all migrants, refugees and asylum seekers are fundamental principles of migration management, in line with obligations under international law.”
They added that human rights obligations had been raised with the Tunisian authorities as part of the agreement and that significant efforts and schemes were being implemented to monitor EU-funded programs “including [monitoring] the human rights situation.”
“In Tunisia, efforts are being made to strengthen existing monitoring mechanisms. “The commission remains committed to improving the situation on the ground.”