European Union Report - Atlas

Implementation of International Humanitarian Law
& International Human Rights Law in the
European Union
July 2009
Prepared by:
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Table of Contents
I. Executive Summary ................................................................ 1
II. Introduction ........................................................................... 12
III. Legal Personality ................................................................... 17
IV. Institutional Legal Basis and Competence ......................... 22
V. Internal Mechanisms ............................................................ 50
VI. The EU and its Treatment of IHL and IHRL ........................ 75
VII. Conflict Management ......................................................... 191
VIII. Annex A ................................................................................ 252
IX. List of Abbreviations .......................................................... 280
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Table of Contents (Expanded)
I. Executive Summary ................................................................ 1
II. Introduction ........................................................................... 12
The Concept of IHL .................................................................................................................................... 12
The Concept of CFSP ................................................................................................................................. 13
III. Legal Personality ................................................................... 17
Legal Personality of the European Community ................................................................................. 17
Legal Personality of the European Union ............................................................................................ 17
No explicit conferral ................................................................................................................... 17
Implied legal personality ........................................................................................................... 18
Constituent documents ............................................................................................................. 19
The Lisbon Treaty ....................................................................................................................................... 20
IV. Institutional Legal Basis and Competence ......................... 22
CFSP................................................................................................................................................................ 22
ESDP ............................................................................................................................................................... 23
Legal Instruments in CFSP ....................................................................................................................... 24
Common strategies ..................................................................................................................... 25
Joint actions .................................................................................................................................. 25
Common positions ...................................................................................................................... 25
The Relationship between the Institutions under CFSP .................................................................. 26
Competence to enforce or impose restrictive measures ................................................. 28
Competence to finance CFSP ................................................................................................... 30
Responsibility of international organizations for wrongful acts ................................................... 31
Competence to Enforce: The European Court of Justice ................................................................ 32
The ECJ and international law .................................................................................................. 33
The ECJ and CFSP ........................................................................................................................ 37
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Comments ..................................................................................................................................... 47
V. Internal Mechanisms ............................................................ 50
Institutional Bodies .................................................................................................................................... 50
COJUR ............................................................................................................................................. 50
COHOM .......................................................................................................................................... 50
CAHDI ............................................................................................................................................. 51
Information Gathering and Fact-finding Capacity ............................................................................ 52
Funding and Assistance ............................................................................................................................ 54
ECHO ............................................................................................................................................... 55
Partnerships .................................................................................................................................. 57
The European Consensus on Humanitarian Aid ................................................................. 58
Humanitarian principles as a backdrop to partnerships .................................................. 61
Criticisms and Challenges ......................................................................................................... 63
Comments ..................................................................................................................................... 73
VI. The EU and its Treatment of IHL and IHRL ........................ 75
Supporting International Treaties .......................................................................................................... 75
Contributions to developments in IHL and IHRL .............................................................................. 80
The EU Approach ......................................................................................................................... 80
Responsibility to Protect ........................................................................................................... 90
The EU position on Current Topics Relevant to IHL .......................................................... 99
Human Rights Guidelines .......................................................................................................................108
Guidelines on IHL ..................................................................................................................... 108
Human Rights Dialogue with Third Countries ................................................................. 110
Death Penalty ............................................................................................................................ 115
Human Rights Defenders ....................................................................................................... 117
Torture and other Cruel, Inhuman or Degrading Treatment ....................................... 120
Comments .................................................................................................................................. 125
Special Interest Groups ...........................................................................................................................125
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Children ....................................................................................................................................... 125
Women ........................................................................................................................................ 133
Supporting International Institutions .................................................................................................140
International Criminal Court .................................................................................................. 141
International Criminal Tribunal for the Former Yugoslavia .......................................... 144
International Criminal Tribunal for Rwanda ...................................................................... 152
International Committee of the Red Cross ....................................................................... 153
African Union ............................................................................................................................. 156
United Nations .......................................................................................................................... 161
North Atlantic Treaty Organization ..................................................................................... 165
Comments .................................................................................................................................. 167
Agreements with Non-EU Member States ........................................................................................168
Development co-operation ................................................................................................... 168
Trade agreements .................................................................................................................... 176
Treatment of Violations ..........................................................................................................................180
Indirect Action ........................................................................................................................... 181
Direct Action .............................................................................................................................. 185
Comments .................................................................................................................................. 189
VII. Conflict Management ......................................................... 191
Crisis Management ..................................................................................................................................191
The European Security Strategy ........................................................................................... 191
Institutionalisation of conflict management ..................................................................... 193
Civilian Crisis Management ................................................................................................... 197
Instruments ................................................................................................................................ 201
The Civilian Headline Goal 2008 .......................................................................................... 209
The Lisbon Treaty ..................................................................................................................... 211
The Question of Coherence ................................................................................................... 212
The EU as an Actor in Missions ............................................................................................ 215
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Conflict Prevention ...................................................................................................................................231
Introduction ............................................................................................................................... 231
Institutional Aspects of Conflict Prevention ..................................................................... 235
Conflict Prediction .................................................................................................................... 242
Longer-term Aspects of Conflict Prevention .................................................................... 245
Conflict Prevention and the Member States .................................................................... 247
Comments ..................................................................................................................................................248
VIII. Annex A ................................................................................ 252
IX. List of Abbreviations .......................................................... 280
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I. Executive Summary
⇒ The legal personality of the Union, although not expressly conferred by the TEU, arguably
does in fact exist de facto based on its purpose and function as set forth in its constituent
documents and through its practice. Legal personality enables the Union to assert specific
rights internationally, but it also means that the Union will be bound by any agreements
into which it enters. By extension, this means that the Union is bound by customary
international law, rules of jus cogens and international law insofar as it is applicable. Legal
personality seems not, however, to mean that the Union as a separate entity can be held
responsible for its actions on the international plane. This is the case for the UN as one can
see in the decision of the ECtHR in Behrami and Behrami whereby the Court held that it
lacked the competence to review action attributable to the UN, and it presumably would be
the case for the Union. Conversely, the ILC Draft Articles on the Responsibility of
International Organizations seem to indicate otherwise, as they attribute responsibility to
international organizations that have effective control over organs lent to them by other
international organizations or states.
⇒ The case law of the Community and the Treaties themselves make it clear that international
law, most specifically the rights enshrined in the ECHR, are taken into account by the Court
of Justice when making its decisions. In Kadi and Yusuf, although the Court recognized that
UNSCRs fall outside the scope of its review, the Court empowered itself with the ability to
indirectly assess the lawfulness of UNSCRs with regard to jus cogens principles. This point of
view was subsequently affirmed in Ayadi and Hassan. Most recently, in the appellate case of
Kadi and Al Barakaat, the ECJ confirmed its commitment to upholding the general
principles of Community law, in which regard the ECHR has “special significance”, and
reaffirmed case law holding that compatibility with human rights is a condition of the
lawfulness of Community acts. The ECJ has never explicitly considered international human
rights obligations outside of their application within its own internal legal order. But it is
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clear that the Community is essentially autonomous in that it has its own internal structure
for the protection of rights that are typically protected by international customary law and
treaties so that it is largely unnecessary for the Community to take international law into
account on any large scale.
Case law suggests that there are limited circumstances in which CFSP legislation will come
before the ECJ. First, Commission v Council illustrates that the ECJ has the task of
maintaining the balance of competences between the first and second pillars and so has
jurisdiction to assess the legality of CFSP measures in that respect only. But this is true in
regard to all legislation, whether it come from the first, second or third pillars and only
applies to the institutions and to the Member States. Furthermore, the Court is restricted to
an evaluation of legality only and may not assess the merits of those parts of the legislation
that fall within the framework of CFSP. Second and most relevant for the purposes of this
report, OMPI and Segi extend judicial protection to areas where the Court previously did
not have competence. The judgment in OMPI allows indirect review of UNSCRs where they
leave discretion to the Member States for their implementation. Where this is the case, the
Court is bound to observe the general principles of the Community, which include the
rights in the ECHR and therefore may engage in an evaluation of whether the legislation
abides by such principles. Segi went further than OMPI to allow national courts to request a
preliminary reference with regard to any Council measures that are intended to produce
legal effects in relation to third parties. Although this case involved a third pillar measure,
its ruling may very well extend to measures under the second pillar, thereby giving the ECJ
limited jurisdiction over CFSP. Although none of these cases specifically provides judicial
protection in the context of the second pillar, it is clear that the jurisdiction of the
Community Courts is expanding in order to provide effective judicial protection. It is also
possible that the ruling in Segi will apply not only in the context of third pillar measures,
but also with regard to CFSP measures.
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⇒ The EU has clearly demonstrated its commitment to funding humanitarian aid programmes
and initiatives intended to ensure cohesion, effectiveness and efficiency in the delivery of
humanitarian aid. The European Consensus demonstrates a pragmatic and realistic
approach to funding which will hopefully provide a strong framework that will be
supported by the Commission’s Action Plan. However, there are still many issues that ECHO
has to tackle to ensure the efficient delivery of aid. While it has made several improvements
already, issues of co-ordination, communication, funding and accountability need
addressing by enduring solutions based on past practice.
⇒ The integration of the Geneva Conventions as a recurring element of CFSP illustrates the
Union’s participation to the duty of diffusion and promotion of international humanitarian
law. However, the diversity of actions commanded by the Petersberg missions implies a
form of legal evaluation depending on the nature of the tasks envisaged. Indeed, the legal
environment of a humanitarian mission differs from a military operation to establish peace
that has a military component.
⇒ The EU’s promotion of international humanitarian law and international human rights law
has been incremental and polymorph. It first started via EU diplomacy and political
statements before being expressly mentioned in CFSP instruments, or in EP Resolutions
calling for actions.
The progressive integration of the Geneva Conventions as a recurring element of CFSP
illustrates the Union’s participation to the duty of diffusion and promotion of international
humanitarian law. However, the diversity of actions commanded by the Petersberg missions
implies a form of legal evaluation depending on the nature of the tasks envisaged. Indeed,
the legal environment of a humanitarian mission differs from a military operation to
establish peace that has a military component. In this respect, it has to be acknowledged
that international humanitarian is far from being systematically integrated in ESDP
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operations. This aspect will be studied further later in the report. Another aspect of this
question can be covered by studying the EU contribution to the doctrine of Responsibility
to Protect.
⇒ Although the EU has enthusiastically endorsed the principle of Responsibility to Protect, its
implementation of the concept is not without its problems. The EU must take a more
conspicuous and forward-looking role in the advancement of Responsibility to Protect.
Although Member States are the actors responsible for its application, the EU should take a
greater role in supporting Member State efforts to develop and apply the doctrine. The
most visible and constructive effort the EU could make in this regard would be to establish
a new EU agency or working group responsible for developing a shared understanding of
when Responsibility to Protect applies, build state capacity for recognizing and responding
to situations in which it applies, and generally acting as an information clearinghouse when
called upon by other EU bodies. Such an agency would fit well alongside those other EU
groups responsible for dealing with matters associated with the CFSP.
There is not yet an international consensus regarding the application of Responsibility to
Protect. For example, it is unclear whether it should apply to situations concerning nuclear
proliferation, environmental degradation, or natural disasters. For that reason, clarifying the
boundaries of the doctrine should be a priority for the EU. Guidelines cataloguing the
substantive content of the norm and establishing criteria for its application – perhaps the
criteria advanced by the International Commission on Intervention and State Sovereignty in
its 2001 report (e.g. just cause, proportional means, right intention, etc.) – need to be
developed at EU level so that EU Member States can apply the norm responsibly,
consistently, transparently, and legally.
Finally, it has become clear that the EU has not yet developed the operational capacity to
deal with situations involving Responsibility to Protect. This is largely due to the fact that
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the militaries of most EU Member States rely on conscription and have only 10-15% of their
forces available for deployment abroad, and also because only a small number of Member
States have the capacity to conduct strategic military operations outside of their territory.
This could be one of the main reasons the EU has taken a backseat role with regard to
certain situations, for example in Darfur, where the EU made it clear that its role was
primarily one of support to the African Union which was to be considered the lead
international player in that context.
⇒ The EU is clearly making an effort to actively interject its human rights policy in all of its
dealing with third countries. However, it is unclear whether there are any real
consequences for a third country’s refusal to act according to human rights and IHL
principles. The EU has many tools at its disposal, as is clear from the various guidelines and
the Regulation on torture, i.e. political dialogue, demarches, public statements,
intervention, and in some instances restrictive measures or sanctions. The Annual HR
Reports, however, provide no example of when restrictive measures have been taken. This
perhaps illustrates the fact that while the EU has many tools at is disposal, it is using them
incorrectly or inefficiently.
Another more pressing problem is the EU’s failure to adequately consider the IHL
Guidelines in their own right similar to the way the EU evaluates the progress of the HR
guidelines. While the two may apply simultaneously, there are important differences
between them. In fact, the IHL Guidelines themselves acknowledge the importance of
distinguishing between IHL and IHRL calling them “distinct bodies of law” with “important
differences between them”. IHL requires separate legal knowledge and competence within
the relevant bodies. While CAHDI’s remit includes IHL, there is not one body dedicated to it
solely which perhaps has stunted the progression of the Guidelines.
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⇒ The EU’s decision to develop guidelines on the protection of children is a positive step
toward ensuring their protection throughout the EU in its mission work. However, some
criticisms arise. First, in the Guidelines (as in all guidelines) there is not a specific budgetary
allocation giving the guidelines the operational capacity they need to provide the best
protection to children possible. Without a budgetary allotment, there is a risk that the
Guidelines will remain mere statements of intent. Furthermore, the guidelines’ focus on a
list of priority countries must be consistently reviewed and kept up-to-date to mirror
situations as they change or any action taken in relation to them may become irrelevant
and stale. Generally, however the work of the EU seems promising in this regard.
⇒ While it appears that the EU has not yet drafted a single policy instrument on women the
way it has on children and other topics on human rights, the EIDHR funded 184 projects
focusing on women at a total of € 42.3 million placing the subject of women fifth out of 18
in all of the EIDHR’s funding. Although the EU is clearly working to implement the
provisions of Resolution 1325, it has fallen short of implementation through a single policy
instrument and has demonstrated a somewhat passive approach to the issue of women
and gender mainstreaming. It does seem, however, that given the various pieces of
research and statements commissioned by the Council, the EU is heading toward the
adoption of guidelines on women, specifically in the context of gender mainstreaming.
⇒ Undoubtedly the EU has offered great support to international human rights and
humanitarian law initiatives in its external relations policy. Such support is illustrated in its
general legislation and specific agreements with other countries, and is also traceable in its
budget. However, when it comes to implementing that policy, the EU does not put much
pressure on defaulting countries, specifically in relation to the ICTY. In order to effectively
achieve its goal of full cooperation, the EU should identify specific means of putting
pressure on these countries that goes beyond mere suspension of negotiations. Perhaps
focusing on trade-related pressure would be the most effective, as in the case with the
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Netherlands and Serbia, discussed above. It is important for the EU to gain consensus
about its policy and a will to put the necessary pressure on those states which consistently
get in the way of its execution.
⇒ The EU clearly has a variety of tools at its disposal to effectuate the respect of IHL and IHRL
ranging from political statements to the imposition of sanctions such as arms embargoes.
However, it appears not only from this discussion, but from the discussion of agreements
with non-EU Member States, that the EU prefers to use its more passive methods of
influence rather than impose sanctions, which are clearly stronger in their purpose and
effect.
However, as valuable as sanctions are, it is often the case that the imposition of sanctions
by the EU has little effect in situations where other aid is made available to the state in
question by other organizations or states. For example, although the EU has imposed
sanctions on Myanmar, India, China and most other South Asian states have not and
consequently aid and economic trade continues. It is arguable that in order for sanctions to
be effective, they must be universally imposed. Furthermore, such sanctions must apply to
all EU action: for example, a condemnation of Myanmar’s accession to ASEAN by the
Council was undermined by the decision of EU Foreign Ministers to attend the ASEAN
conference in 2004.
⇒ The European Commission has an extensive set of instruments for structural long-term and
direct short-term preventive action. The Commission has been active in defining and
supporting many conflict-related programmes such as election monitoring and assistance,
police and justice reform, Disarmament, Demobilisation and Reintegration (DDR), Small
Arms and Light Weapons (SALW), as well as initiatives to tackle valuable natural resources
as drivers of conflict ( for example the Kimberley process regarding conflict diamonds). In
the second pillar, the Council has made welcome advances in the field of structures and
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capabilities for civilian and military crisis management developed in the framework of ESDP,
diplomatic dialogue, and increasing preventive diplomacy and mediation efforts of the
GS/HR Solana and Special Representatives.
The Göteborg Programme stipulates that the EU “must use these instruments in a more
targeted and effective manner in order to address root-causes of conflict such as poverty,
lack of good governance and respect for human rights, and competition for scarce natural
resources”. However, although there is progress in the policy debate on coherence, most of
Commission and Council activities are used in a narrow way and are not embedded in a
coherent conflict sensitive approach. This is also reflected in the tendency for the EU not to
monitor its activities in the field of trade, development, and environment for their impacts
on conflict-prone and affected contexts, either in their design or in their implementation. If
the EU wants to use all its instruments efficiently, there is a real need to institutionalise
conflict sensitivity in all relevant EU policies.
⇒ The development of an EU role in the field of crisis management has presented the Council
with major new challenges, and forced a breakthrough in the long-awaited extension of
permanent structures in Brussels. In this respect, the PSC has managed to consolidate its
position at the central place where different pieces of the ESDP puzzle come together.
One of the comparative advantages of the European Union is that it can address
international crisis with a wide array of policy instruments. The demands being made on EU
crisis management are therefore bound to lead to further need for institutional adaptation
and innovation. The brief presentation above should be considered “as no more than
snapshots and more change is inevitable.” CFSP has nonetheless come a long way recently.
It has indeed been demonstrated that the Commission and the Council have created
specific bodies where interpillar consultations take place on a regular basis. Moreover,
Community legislation nowadays makes clear that Community Assistance under the EIDHR
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or the Instrument for Stability must be consistent with the respective ESDP efforts.
However, interpillar and civil-military coordination remain crucial and is seen by some
authors as the main challenge of the ongoing EULEX KOSOVO operation currently taking
place at the time of writing.
Moreover, the numbers of staff involved in CFSP and ESDP remained surprisingly low and
the assumption of more demanding and complex missions has put a lot of strain on the
officials concerned who act on a rather ad hoc basis.
As far as ESDP operations are concerned, the scarcity of the ESDP budget calls for a careful
assessment of their necessity and their length in time. EU crisis management operations are
a fairly new phenomenon, and were so far never intended to take place in an armed conflict
context. However, even if not expressly mentioned in the mandate, violence might occur on
the ground, and because of the unstable situation in most if not all countries where ESDP
operations take place, the borderline with armed conflicts can become thinner or crossed.
Therefore, the inclusion of references to international humanitarian law/rules in all EU
operations mandates is recommended in order to give legal strength/legitimacy to its
application when necessary.
Several authors also pointed out the lack of leadership at all levels 1 : the political drive to
crystallize the idea of a security policy, the institutional responsibility within EU structures
and the practical administration of the EU policy. As Blockmans and Wessel pointed out,
the lack of leadership at these levels makes it difficult to decide whether a crisis exists, to
1 S Blockmans and R A Wessel, The European Union and Crisis Management: Will the Lisbon Treaty Make
the EU More Effective?, Paper presented at the International Conference ‘The European Union and Global
Emergencies’, Durham European Law Institute, 8-9 May 2009 – work in progress.
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then determine the scale of the crisis, and to achieve consensus on a response. This failure
was clearly illustrated by the arguments over a military intervention in Iraq.
As far as conflict prevention is concerned, there is a need to improve early warning analysis
by ensuring that greater information ‘from the field’ is used to support Member States
intelligence. In this respect Country Strategy Papers and the integration of the Checklist for
Root-Causes of Conflict elaborated by the Commission should play a more important role
than they do now. The study of the latest CSPs of our target countries (Haiti, Cambodia,
Sierra Leone and BiH (there is no CSP for Kosovo) revealed that the Community has indeed
taken on its mandate to consider the Checklist for Root-Causes of Conflict in its evaluation
of countries that receive assistance from the Community; this evaluation for the most part
is quite comprehensive. However, the method by which these countries are assessed
against the Checklist is by no means uniform, although this may be due to the individual
nature of these countries and their specific situations. Many aspects of the Checklist are left
out from consideration by the CSPs or RSPs and those areas which are included are
superficially explored. Because the information is not uniform, it is scattered in various
places throughout the Strategy Papers, so that one cannot clearly conceive which
considerations are being discussed.
It may be valuable either to generate separate reports specifically relating to the Checklist
which can be annexed to the CSPs and RSPs, or to restructure the Strategy Papers in a way
that clearly makes use of the Checklist in a systematic, uniform manner. If the point is to
consider conflict risk factors in their own right so that the attention of the Community and
Member States can be drawn to those countries which are in most need of assistance, it
seems sensible to evaluate those factors separately from the other elements of the Strategy
Papers in order to effectively attract that attention.
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In a wider picture, it appears that effective crisis management is remains closely tied to the
more general efforts of the Community to stabilise crisis or prone-crisis countries and
region. In this regard, there remains a worrying amount of bifurcated efforts, most notably
in conflict prevention and the civilian aspects of crisis management. It remains clear that
truly effective external relations and crisis management will call upon the Union as a whole
to weave together the various components of foreign policy, crisis management, conflict
prevention, post-conflict reconstruction and stabilisation into a more coherent whole. In
this sense, we support the French White Paper on Defence and National Security of June
2008 when it advocated the drafting of a European White Paper on Defence and Security.
Such a document, if taking into account the polymorphism of the EU external action in all
its aspects (foreign policy, crisis management, conflict prevention, post-conflict
reconstruction, and stabilisation) in a transversal approach would be invaluable. Not only
would it provide a much-needed clarity of the EU action, but such an extensive document
would also function as a set of guidelines to be followed and referenced by all the relevant
actors.
We also support the French White Paper in its recommendation to take the necessary
measure so that military and civil missions carried out by the EU are under a single strategic
Directorate in Brussels. Here again the willingness of Member States to imbue the
institutions with the necessary will and resources is crucial.
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II. Introduction
The Concept of IHL
This report addresses the extent to which the EU has (1) developed its own policy on
international humanitarian law (IHL) and international human rights law (IHRL) in armed conflict
situations, and (2) how that policy and principles of IHL and IHRL generally are implemented by
the EU and given effect to in its common foreign and security policy (CFSP).
The concept of IHRL is fairly well-known and developed and so its scope is much more
understood in light of the numerous international human rights agreements. According to the
International Committee of the Red Cross (ICRC), IHL regulates the means and methods of
warfare and protects those who are not or who are no longer participating in hostilities. 2 It
regulates the use of force once an armed conflict has begun; it is the jus ad bello. 3 IHL is
captured in numerous treaties and customary international law. 4 However, within the context of
the EU, the concept of IHL is not as clear-cut. Article 9 of the EU’s Guidelines on promoting
compliance with IHL 5 , the scope of application of IHL is discussed as applying
2
ICRC Advisory Service on International Humanitarian Law, ‘What is International Humanitarian Law?’,
available at: http://www.icrc.org/Eng/ihl.
3
UN Charter, art 2(4) and 51, available at: http://www.un.org/aboutun/charter.
4
Significant international humanitarian law treaties include the Hague Conventions of 1899 and 1907, the
Four Geneva Conventions of 1949 and their Two Additional Protocols of 1977, and a variety of subjectspecific
treaties such as the Convention of the Protection of Cultural Property in the Event of Armed
Conflict of 1954 and its two Protocols, the Biological Weapons Convention of 1972, the Convention on
Certain Conventional Weapons and its Protocols of 1980, the Chemical Weapons Convention 1993 and
the Ottawa Convention on Anti-Personnel Mines of 1997. These will be explored in relation to the EU
below in Part VI ‘Supporting International Agreements’.
5
These Guidelines will be discussed in depth below in Part VI.
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to any armed conflicts, both international and non-international and irrespective of the
origin of the conflict. It also applies to situations of occupation arising from an armed
conflict.
While the scope of application of IHL is important to this study, it must be stressed that until
there is a ‘Communitarization’ of IHL principles that goes beyond the mere adoption of
Guidelines, what IHL actually means and how it is applied will vary among the Member States
according to their own implementation of the relevant international agreements on IHL and
IHRL. However, as the EU becomes a greater actor in international law and develops a greater
presence in foreign policy, and perhaps even establishes its own military force, the fear that
national sovereignty will be chipped away and powers placed in the hands of the EU with
undoubtedly rise. What would this mean for IHL and IHRL generally? If the EU harmonizes its IHL
policy, for example, which law would apply in light of the Member States’ ratification of the
Geneva Conventions and related protocols? How would the various country reservations be
taken into account? Would the lowest common denominator apply and, if so, does that counsel
against the development of a harmonized EU IHL policy? These questions are not answered in
this report; they only serve to illustrate one of the biggest issues in EU foreign policy: whereas
the Member States can act in unison under the second pillar of EU law, i.e., CFSP, they still retain
the sovereignty to develop their own foreign relations. Therefore, while the EU Member States
have agreed to overarching principles in specific areas through the adoption of Guidelines such
as the IHL Guidelines and specific human rights guidelines, understandably, it is difficult to
achieve a harmonized foreign policy with uniform principles of IHL and IHRL.
The Concept of CFSP
In order to follow this report, it is necessary to discuss briefly the concepts of CFSP and the
related concept of ESDP. CFSP is the organized, agreed foreign policy of the EU and comprises
the second pillar of the European Union. The CFSP works to achieve five fundamental objectives:
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safeguarding the common values, fundamental interests, independence and integrity of the EU
in conformity with the principle of the UN Charter; strengthening the security of the Union in all
ways; preserving peace and strengthening international security in accordance with the
principles of the UN charter as well as the principles of the Helsinki Final Act and the objectives
of the Paris Charter; promoting international cooperation; and developing and consolidating
democracy and the rule of law and respect for human rights and fundamental freedoms.
Established in 1993 by the Treaty of Maastricht, the CFSP spawned from the earlier created
European Political Co-operation (EPC) – an informal consultation process between Member
States on foreign policy matters that was formed in 1970. After the EPC proved to be inadequate
and ineffective in handling trade and security conflict, the CFSP was created to improve areas of
foreign policy and security. Defence, while not provided for under the EPC, was explicitly
included in the CFSP.
The European Security and Defence Policy (ESDP) is a major component of the CFSP. An earlier
effort to establish order and create a European collective defense organization was made in the
form of the European Security Defense Identity – an informal association created to allow
European states military aid where NATO failed to act and to alleviate the United States'
financial burden of maintaining Cold-War era European military bases. After initial efforts in the
form of the ESDI failed to create a secure European community, the ESDP was established to
continue from the failed ESDP. The ESDP comprises four permanent political and military
structures. The first is the Political Security Committee (PSC) whose functions are to keep track of
international situations, to prepare an EU response to crisis, and to exercise its political control
and strategic direction. The second component is the European Union Military Committee which
provides information, drafts recommendations, and gives its opinion to the PSC on civilian
aspects of crisis management. The third component is the European Union Military Staff (EUMS)
which is composed of military and civilian experts seconded to the Council Secretariat by the
Member States. The fourth of these components is the Civil Planning Conduct Capability (CPCC),
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the permanent structure responsible for an autonomous operational conduct of civilian ESDP
operations. Acting together these four components strengthen the ESDP’s goals of collective
European security and defense.
CFSP comes within the Treaty on European Union (TEU) and hence Community law may be said
to be inapplicable, as is the roles of the European Court of Justice (ECJ) and the European
Commission (hereinafter ‘the Commission’) which are virtually non-existent. However, the
precise limits and competences of the CFSP are unclear and there is no applicable case law. 6
Although the second pillar may be described as ‘intergovernmental’ rather than Community in
nature, it is clear that one cannot read the CFSP provisions of the TEU in complete isolation from
the TEC which includes provisions on external relations of the Community. Furthermore, the
Community may act in order to implement CFSP legislation imposing economic sanctions. 7
There are also built-in mechanisms to ensure co-ordination between CFSP and the Community’s
external relations policy in order to preserve the consistency of the Union’s overall external
action. 8
The Community’s involvement with CFSP is not limited to economic sanctions. 9 Both the EU and
the EC have entered into agreements with third countries either through common strategies
(EU) or via the mechanisms of development co-operation or regular bilateral agreements
predicated on respect for human rights (EC). All of these agreements will undoubtedly affect
each other, e.g., EU common strategies will likely affect trade and economic relations, a matter
typically for the EC, whereas the human rights clauses of EC bilateral agreements are typically
enforced via a decision under the CFSP framework. 10
6
P Eeckhout, External Relations of the European Union Legal and Constitutional Foundations, (OUP 2004)
139.
7
Article 301 TEC; see also Part IV infra, Competence to Enforce or Impose Restrictive Measures.
8 Article 47 TEU; see also ibid.
9 Eeckhout (n 6) 146.
10 Eeckhout (n 6) 147.
15

This Report is divided into 7 main parts: (I) Executive Summary; (II) Introduction; (III) Legal
Personality; (IV) Institutional Legal Basis and Competence; (V) Internal Mechanisms; (VI) The EU
and its Treatment of IHL and IHRL; and (VII) Conflict Management.
It is followed by three annexes: Annex A is a report on the implementation of the Checklist for
Root-Causes of Conflict with regard to a selection of Country Strategy Papers; Annex B is a
study of the practice of the EU with regard to IHL and IHRL with respect to Bosnia and
Herzegovina, Kosovo, Cambodia, Haiti and Sierra Leone with respect to various aspects of
fundamental human rights and international law; Annex C is a similar study concerning refugees
and displaced persons.
16

III. Legal Personality
Legal Personality of the European Community
The EC, unlike the EU was explicitly given legal personality in its constituent instrument, the TEC.
Article 281 states succinctly: “The Community shall have legal personality.” Article 282 follows
with a statement concerning the Member States and their obligation to provide the Community
with the “most extensive legal capacity accorded to legal persons under their laws.”
The legal personality of the Community enables it to avail itself of all means of international
action, i.e. the right to conclude treaties, the right to submit claims or act before an international
court, the right to become a member of an international organization or party to international
conventions, and the ability to become bound by international obligations.
As will be discussed below, currently the EU does not explicitly have legal personality. However,
its legal personality exists de facto based on the Union’s purpose, function and practice.
Legal Personality of the European Union
No explicit conferral
The Treaty on European Union (TEU) does not have an explicit provision on the Union’s legal
personality like that of the Treaty Establishing the European Community (TEC). The drafters of
the TEU discussed the possibility of including such a provision but decided against it in the final
stages of negotiation. This may be because Member States were concerned that giving legal
personality to the Union would impinge on their national sovereignty. Alternatively, the
17

Community may have been sensitive to the possibility that its own legal personality might be
compromised. 11
Without legal personality, the Union does not have the legal capacity to take advantage of the
powers accorded to actors under international law. It would seem that without legal personality,
the Union would be unable to “assert its identity on the international scene” 12 or utilise the
treaty-making power which is conferred upon it by Articles 24 and 38 TEU. It seems paradoxical
that the Union is granted such powers but is not conferred with legal personality.
Recognizing the confusion concerning the legal status of the Union, the Council’s 2002
European Convention 13 established a working group on legal personality. The Working Group
concluded in October of that year, that the Union should possess a single legal personality. 14
This view was endorsed by all but one Member State and is perhaps the basis for the inclusion
of legal personality in the Lisbon Treaty, discussed below. The Working Group saw the creation
of such personality as necessary in order to clarify and simplify the Union’s position, specifically
with regard to its external relations. 15 It noted, “[t]he explicit conferral of legal personality on the
Union heightens its profile on the world stage…thus becom[ing] a subject of international law”. 16
Explicit conferral is not the only way the Union may acquire legal personality.
Implied legal personality
11 P Schoutheete and S Andoura, “The Legal Personality of the European Union”, In Studia Dipliomatica,
Vol LX: 2007, n o 1 (Working Paper for the European Affairs Program of Egmont Royal Institute for
International Relations).
12 Article 2 TEU.
13 The European Convention is convened to discuss the future of the Union and is composed of Member
State heads of state and national parliament. More information is available at: http://europeanconvention.eu.int/organisation.asp?lang=EN.
14 Document CONV 305/02 of 1 October 2002, Part II, para 8.
15 ibid para 10.
16 ibid para 19.
18

The International Court of Justice has determined that international legal personality may be
implicitly conferred upon an international organisation depending on its ‘purposes and
functions as specified or implied in its constituent documents and developed in practice’. 17
Scholars and practitioners have adapted similar criteria. 18 The purpose and function of the EU,
together with the relevant legal instruments and practice suggest that the same approach
should be adapted toward the EU.
Constituent documents
International law places its own limit on the legal personality accorded to international
organisations: legal personality equips organisations with the capacity to act internationally, but
it does not provide them with the competence to do so. Competence is to be derived from the
organisations’ constituent documents. 19
As discussed above in relation to explicit legal personality, the Union’s stated purpose is to
assert its identity on the international scene. 20 The Union could not assert its own identity
without its own legal personality. Articles 24 and 38 expand on that purpose and give the Union
17 The basis for this largely derives from an International Court of Justice advisory opinion from 1949
concerning the United Nations (UN) and the issue of reparations. 17 The principle subject of this case
concerned the capacity of the UN to bring an international claim against a non-member state to obtain
reparation suffered by UN agents. However, the Court addressed the issue of legal personality as part of
its assessment of the question posed by the UN. The Court analysed the UN Charter and its subsequent
treaties, none of which explicitly conferred legal personality on the organisation. It then concluded that an
explicit conferral was not the only factor involved in acquiring legal personality, and held that, “the rights
and duties of an international organization depend on its ‘purposes and functions as specified or implied
in its constituent documents and developed in practice’.
18 For example, according to Brownlie’s three criteria an organisation has international legal personality if:
(1) it is a permanent association of states with organs that, (2) distinguishes its legal powers and purposes
from the states parties, and (3) exercises those powers on the international legal plane. I Brownlie,
Principles of Public International Law, 6 th edition (Oxford University Press, 2003) p 649. In the same vein,
Dailler and Pellet believe legal personality exists when the organisation is capable of engaging in missions
requiring autonomous action in international relations. P Dailler and A Pellet, Droit International Public, 7 th
edition (Paris, LGDJ, 2002) p 596. The actual wording in French is: missions qui impliquent une capacité
d’action autonome dans les relations internationales.
19 ibid p 4.
20 Article 2 TEU.
19

functional treaty-making power under Titles V (Common Foreign and Security Policy - CFSP) and
VI (Justice and Home Affairs). These agreements are negotiated by the Presidency and
concluded by the Council which is a Union body and therefore it is the Union which becomes
bound by the agreements. Treaty-making power is traditionally a competence of organisations
that depends on international legal personality. The EU has concluded over 60 international
agreements in the context of crisis management and peacekeeping with countries such as
Macedonia, Bosnia and Herzegovina, Switzerland, and Morocco. The Union has also concluded
agreements with other international organisations such as the UN, the North Atlantic Treaty
Organization (NATO), and the African, Caribbean and Pacific (ACP) countries.
The Lisbon Treaty
The Lisbon Treaty gives the Union legal personality of its own. 21 This personality extends across
its entire competence which means that Member States may only engage in international
agreements that are compatible with EU law. This also means that the third pillar will dissolve
into the first pillar after a five-year transitional period. 22 A declaration is attached to the treaties
concerning the legal personality of the Union and specifying that, “the fact that the European
Union has a legal personality will not in any way authorise the Union to legislate or to act
beyond the competences conferred upon it by the Member States in the Treaties.” This
declaration addresses the distinction made by the ICJ in terms of capacity versus competence. It
seems that the conclusions of the 2002 Working Group were heeded.
In sum, the legal personality of the Union, although not expressly conferred by the TEU, does in
fact exist de facto based on its purpose and function as set forth in its constituent documents
and through its practice. Legal personality enables the Union to assert specific rights
internationally, but it also means that the Union might be bound by any international
21 Article 47 TEU (Consolidated Version).
22 A Duff, True Guide to the Treaty of Lisbon (Alliance of Liberals and Democrats for Europe 2007) p 9.
20

agreements into which it enters as a separate body. By extension, this could mean that the
Union would be bound by customary international law, rules of jus cogens and international law
insofar as it is applicable. Legal personality does not, however, equate with responsibility on the
international level for actions. This is demonstrated by the decision of the ECtHR in Behrami and
Behrami 23 whereby the Court found that it lacked the competence to review action attributable
to the UN. This would presumably be the case for the Union as well. Conversely, the ILC Draft
Articles on the Responsibility of International Organizations seem to indicate otherwise, as they
attribute responsibility to international organizations that have effective control over organs lent
to them by other international organizations or states.
23 The joined cases of Behrami and Behrami v France (App No 71412/01) and Saramati v France, Germany
and Norway (App No 78166/01) European Court of Human Rights 2 May 2007, considered whether the
ECtHR was competent under the ECHR to review the participation of ECHR States in the international civil
and security presences in Kosovo. The case concerned the death and injury of two boys who encountered
undetonated cluster bombs in the hills of Mitrovica. Their father filed suit against France (which led the
Kosovo Force, KFOR) for failure to clear the mines in accordance with UNSCR 1244 on mine clearance. His
complaint was initially dismissed based on the fact that the UN’s Interim Administration Mission (UNMIK)
had taken over responsibility for mine clearance at the relevant time. The respondent states denied
responsibility claiming that it was the UN and not the individual states which had effective control of
Kosovo. Rather than centring the cases on the question of extra-territoriality and effective control as in
Banković, the ECtHR questioned its own competence to assess the states’ contribution to the civil and
security forces which did exercise effective control under the ECHR. A decision on this matter was largely
concerned with the question of to whom the actions at issue could be attributed: the individual states or
the UN/UNMIK or KFOR. After an analysis of the relevant legal texts, the Court concluded that demining
activities fell within the remit of UNMIK. It held that although the UN had delegated its “power to
establish an international security presence as well as its operational command” (para 129), it retained
ultimate authority and control; therefore the acts and omissions of KFOR and UNMIK were attributable to
the UN. Then, based on the primacy of the UN Charter in ICJ case law, the Court held that the ECHR could
not be interpreted in a manner which might interfere with the “mission of the UN to secure international
peace and security” (para 149). It therefore was not competent ratione personae to review any conduct
attributable to the UN.
21

IV. Institutional Legal Basis and Competence
CFSP
The European Union is an active participant in humanitarian aid, peacekeeping and crisis
management, developing and executing its own policy under the umbrella of its CFSP. The
Union was established by the TEU signed in Maastricht in 1992 with the purpose of “creating an
even closer union among the peoples of Europe” and to “organise, in a manner demonstrating
consistency and solidarity, relations between Member States and between their peoples”. 24 The
Union was founded on common principles including the respect for human rights and
fundamental freedoms, as guaranteed both within Community law and the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 25 and is
given the authority 26 to provide itself with the necessary means in order to achieve objectives in
support of those principles. Although its purpose is to further cement relations internally, its
tasks extend beyond the borders of the Union to third countries.
The Union relies upon its CFSP to assert itself on the international scene. 27 More specifically, its
objective is to “define and implement a common foreign and security policy covering all areas of
foreign and security policy” with objectives such as preserving peace and strengthening
international security, promoting international cooperation, and developing respect for human
rights and fundamental freedoms. 28 They are formulated in broad terms and reflect values and
ideological precepts which are internal to the Union. Because they are prescriptive, their
24 Article 1 TEU.
25 Article 6 TEU.
26 Article 6 TEU.
27 Article 2 TEU.
28 Article 11TEU.
22

ealization requires a combination of policies, initiatives, resources, and instruments, and this is
the particular trait of CFSP. 29
Articles 14 and 24(1) concern the Union’s ability to operationalize its policy through specific
action or via the negotiation of international agreements. Article 14 discusses the Council’s
ability to adopt joint actions which are used to “address specific situations where operational
action by the Union is deemed to be required.” Article 24(1) provides the Presidency with the
authority to negotiate agreements with one or more States or international organizations in
order to further the implementation of CFSP. Most relevant is Article 17 TEU which provides for
the inclusion within CFSP of all questions relating to Union security, particularly “humanitarian
and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management,
including peacekeeping”. 30 Article 17 forms the basis for the creation of the European Security
and Defence Policy (ESDP), and hence the Union’s ability to engage in military operations and
eventually a common defence. 31
ESDP
As discussed above in relation to CFSP, Article 17 TEU is the article that effectively establishes
the EU’s ESDP, giving the Union the competence to operate within the full range of the
Petersberg tasks 32 : “humanitarian and rescue tasks, peacekeeping tasks, and tasks of combat
forces in crisis management, including peacemaking”. In order to implement the ESDP, several
committees were created and allocated specific competences. This report will focus on the most
relevant of those committees. The most significant is the Political and Security Committee (PSC)
established by Article 25 TEU to “monitor the international situation in the areas covered” by
29
M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’, in International
Law Aspects of the European Union, The Hague/Boston/London: Martinus Nijhoff, 1998 27, at 28, in N
Tsagourias, n760 p104.
30
Article 17(1) TEU.
31
Article 17(2) TEU.
32
The Petersberg Declaration was adopted at the Ministerial Council of the Western European Union
(WEU) in June 1992.
23

CFSP and to “contribute to the definition of policies”. Consisting of national representatives
appointed at a senior ambassadorial level, the PSC has control in respect of crisis management
operations. It is responsible for political and strategic direction of such operations, and may,
with authorization by the Council, take relevant decisions to fulfil its mandate. 33 The PSC works
closely with the European Union Military Committee (EUMC), another subcommittee created
under the auspices of ESDP. The EUMC provides the PSC with advice on military matters within
the EU and has discretion over EU military action. It is composed of the chiefs of Member States
defence or their representatives. 34
Legal Instruments in CFSP
The first version of the TEU provided the Council with the power to adopt legal instruments in
order to implement CFSP. However, the nature and effect of those instruments was only clarified
with the additions introduced by the Treaty of Amsterdam and the Treaty of Nice. 35 Under
Article 12 TEU (as amended), the EU is required to pursue its CFSP objectives on the basis of (1)
defining principles and guidelines; (2) common strategies; (3) joint actions; (4) common
positions; and (5) strengthening Member State co-operation. Of these, the most formal
instruments of CFSP are joint actions, 36 common positions 37 and common strategies 38 .
33
RA Wessel, “The State of Affairs in EU Security and Defense Policy: The Breakthrough in the Treaty of
Nice”, 8 Journal of Conflict & Security Law 265, 275 (2003); see also
http://ec.europa.eu/external_relations/cfsp/intro/index.htm last accessed 13/11/2008.
34
ibid.
35
Eeckhout (n 6) 396-8.
36
Article 14(1): The Council shall adopt joint actions. Joint actions shall address specific situations where
operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the
means to be available to the Union, if necessary their duration, and the conditions of their
implementation.
37
Article 15: The Council shall adopt common positions. Common positions shall define the approach of
the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that
their national policies conform to the common position.
38
Article 13 TEU.
24

Common strategies
Common strategies are used to develop common principles and guidelines in CFSP, including
matters with implications for defence policy. The Council can decide on common strategies,
which once adopted, are to be implemented through joint actions and common positions. The
reliance on common strategies has been criticized; most notably, the High Representative for
the CFSP, Javier Solana, described them as ‘rhetorical and descriptive of existing instruments’. 39
However, in practice, it seems as though most incoming Council Presidency adopts a Work
Programme based on each common strategy that delimits competencies and legal bases
between the pillars, thereby providing a helpful overview of CFSP programmes. 40
Joint actions
From a purely textual point of view, the legal effect of a joint action is unclear. However, the fact
that the TEU refers to national positions and actions, but not law, indicates that joint actions are
not to be viewed as a legislative instrument, but rather as a basis for political action or
statement. 41 Therefore, it is unclear whether doctrines that apply to EC law, such as direct effect
and supremacy, extend to EU law. Whatever the effect, it is clear that joint actions are legally
binding upon the Member States. It is also evident that they are the main vehicle of CFSP, with
joint actions having been used in support of democratic transitions in third countries.
Common positions
Unlike joint actions, common positions may be considered indirectly legislative in nature, as they
often concern various sanctions and restrictions that become binding through Community law
implementation (e.g. via Article 301 and 60 TEC, discussed below) or by the Member States
(typically in areas of immigration or travel, as well as topics related to the military). In practice,
39 Europe Documents, No 2228; see also P Eeckhout (n 6) 406.
40 P Eeckhout (n 6) citing E Denza, The Intergovernmental Pillars of the European Union (OUP 2002) 292-3.
41 P Eeckhout (n 6) 400.
25

common positions are used as broad policy documents for general international issues, and as
part of the support for peace building in third countries.
The Relationship between the Institutions under CFSP
CFSP is an external policy supplemented by the Community’s external policies. The Commission
and Parliament are largely uninvolved and there is no role for the ECJ. However, the TEU
provisions on CFSP cannot be read in isolation from the external policy provisions contained in
the TEC. The same institutions which take action under Community law also take action under
CFSP, and in many cases, such action is complementary. The problem therefore, is one of
delimitation: how does one set the boundaries between CFSP and EC external action?
The scope of CFSP under Article 11(1) TEU is not expressly determined except to say that it
encompasses all areas of foreign and security policy. Although “foreign policy” is not further
defined, Article 17 discusses the concept of “security policy” which relates to the development of
a common defence policy and encompasses all questions relating to the security of the Union,
and adds that such questions shall include those concerning subjects such as humanitarian law,
rescue tasks, peacekeeping, and crisis management. The actual objectives of the CFSP appear to
be policy principles rather than strict operational objectives and so have become placed in the
middle of Community external competence and national external competence. 42 Some suggest
that CFSP is a common policy rather than one that stands on its own. 43
The relationship between the CFSP and the Member States is one of support and cooperation.
On the one hand, CFSP is just another form of intergovernmental cooperation, but on the other,
Article 11(2) TEU mandates that the Member States must support CFSP actively and
unreservedly based on a duty of loyalty and solidarity. The Member States are bound by joint
42 P Eeckhout (n 6) 143.
43 ibid citing E Denza, The Intergovernmental Pillars of the European Union (OUP 2002) 86 and 90.
26

actions under Article 14(3) TEU and must consult with one another with regard to matters of
security and foreign policy that may be of general interest. 44
The CFSP is intended to supplement the activities of the Community, despite its mandate to
cover all areas of foreign and security policy. In fact, several articles of the TEU ensure that the
Commission is kept fully associated with the Union’s CFSP and also in the development of
relevant proposals relating to joint initiatives. 45 However, it is quite difficult to separate those
parts of foreign policy covered under CFSP from other matters which are also considered as
foreign, e.g. commercial policy and development cooperation policy. There is a concern that
CFSP decisions may be crossing the boundary between the first and second pillars and
inadvertently transferring first pillar decisions to the second pillar. 46 Protection against this is
provided by Articles 2 and 47 TEU, which work to preserve the acquis communitaire and to
prevent intergovernmental contamination of EC decision making. However, there are specific
areas where the Treaties acknowledge that interaction is necessary. For example, Article 301 TEC
provides:
Where it is provided, in a common position or in a joint action adopted according to
the provisions of the Treaty on European Union relating to the common foreign and
security policy, for an action by the Community to interrupt or reduce, in part or
completely, economic relations with one or more third countries, the Council shall take
the necessary urgent measures. The Council shall act by a qualified majority on a
proposal from the Commission.
44 Article 16 TEU.
45 Article 14, 18 and 27 TEU.
46 See, e.g. Commission, Report on the Operation of the Treaty on European union (EC Commission, May
1995), as reported by G Edwards, ‘Common Foreign and Security Policy’ (1994) 14 YEL 545.
27

The Council can therefore unanimously adopt common positions or joint actions on economic
sanctions without a Commission initiative. 47 However, the Commission will subsequently
propose EC action, which will then require the normal process of cooperation between the
Commission and the Council. This cooperation is not limited to the sphere of economic
sanctions. There is also interaction with regard to common strategies concerning specific
countries with the potential to affect trade and economic relations, and which may operate
alongside EC agreements with those countries. Such interaction is also seen in the protection of
human rights. Most EC bilateral agreements contain clauses for human rights protection. EU
action to enforce such clauses is usually based upon a decision under the CFSP framework.
Competence to enforce or impose restrictive measures
The Council may impose restrictive measures under CFSP using common positions based on
Article 15 TEU. 48 Measures will either be implemented at the national level or, as provided by the
common position, or where there is otherwise competence, by the EC. Arms embargoes,
restrictions on admission and similar measures are typically implemented directly by the
Member States while measures affecting economic relations with a third country are mostly
implemented through an EC Regulation, as described below. All restrictive measures must be
proportionate to their aims and respect human rights and fundamental freedoms, specifically
due process and the right to an effective remedy. 49
Article 301 TEC allows the Community to occupy a unique role with regard to CFSP objects in
the context of the EU. Known as the “passarelle” provision, where the Council (acting under the
47
Although Article 22(1) gives the Commission (and the Member States) the power to initiate to refer any
questions or submit proposals related to the CFSP.
48
“The Council shall adopt common positions. Common positions shall define the approach of the Union
to a particular matter of a geographical or thematic nature. Member States shall ensure that their national
policies conform to common positions.”
49
Council of the EU, ‘Guidelines on implementation and evaluation of restrictive measures (sanctions) in
the framework of the EU Common Foreign and Security Policy’, 2 December 2005, available at:
http://www.deaca.dk/file/15362/Guidelines_on_implementation.pdf.
28

CFSP) has adopted a common position calling for action by the Community, it is then able to act
in its capacity as a Community institution to adopt measures that will effectively operationalize
the CFSP objectives. Article 301 provides “a bridge between inter-governmentalism and
Community methodology.” 50 The article, however, operates only within the context of economic
sanctions: “…for an action by the Community to interrupt or to reduce, in part or completely,
economic relations with one or more third countries….” 51 Article 301 works in conjunction with
Article 60 TEC and permits the Council to “take the necessary urgent measures on the
movement of capital and on payments as regards the third countries concerned.” The Council
has applied Articles 60 and 301 liberally, using them to adopt ‘smart’ sanctions, which are
applicable to individuals and non-state actors, as opposed to merely states. 52
In the context of Kadi and Al Barakaat, the ECJ allowed Article 308 TEC to be included as part of
the legal basis for the contested regulation, using it to extend the remit of Articles 60 and 301,
which to the ECJ only authorised sanctions against states, to individuals and non-state actors,
provided that its conditions were satisfied. 53 Article 308 may be considered a sort of catch-all
provisions, which provides for Community action if it is “necessary to attain, in the course of the
50 T Tridimas and JA Gutierrez-Fons, “EU Law, International Law and Economic Sanctions Against
Terrorism: The Judiciary in Distress?”, not yet published, but due to be published in the Fordham
International Law Journal (2008).
51 Article 301 TEC.
52 Council Regulation (EC) No 1294/1999 of 15 June 1999 concerning a freeze of funds and a ban on
investment in relation to the Federal Republic of Yugoslavia (FRY) and repealing Regulations (EC) No
1295/98 and (EC) No 1607/98 Official Journal L 283, 06/11/1999 p 0020; Council Regulation (EC) No
2488/2000 of 10 November 2000 maintaining a freeze of funds in relation to Mr Milosevic and those
persons associated with him and repealing Regulations (EC) Nos 1294/1999 and 607/2000 and Article 2 of
Regulation (EC) No 926/98 O J L 287 , 14/11/2000 p 0019 – 0037; Council Regulation (EC) No 337/2000
concerning a flight ban and a freeze of funds and other
financial resources in respect of the Taliban of Afghanistan, OJ 2000 L 43/1; Council Regulation (EC) No
467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan,
strengthening the flight ban and extending the freeze of funds and other financial resources in respect of
the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000. OJ L 067; 09/03/2001 p 0001 –
0023.
53 Joined Cases C-402/05 P and C-415/05 P, Kadi &Al Barakaat International Foundation v Council and
Commission, judgment of 3 September 2008.
29

operation of the common market, one of the objectives of the Community” and if the Treaty
does not provide the necessary powers. In the Kadi appeal, the ECJ considered the existence of
Articles 60 and 301 as evidence of an implied Community objective “of making it possible to
adopt such measures through the efficient use of a Community instrument.” 54 There has already
been debate as to whether the Court’s approach to Article 308 is justified. 55 If the Lisbon Treaty
comes into force, the Council is given express powers to adopt sanctions against individuals,
groups and non-state groups based on a CFSP measure. 56
Competence to finance CFSP
Article 28 TEU regulates the financing of activities relating to CFSP. Paragraph 2 provides that
administrative expenditures relating to Title V shall be charged to the EC budget. Paragraph 3
discusses operational expenditures and again provides for EC coverage; however, expenditures
relating to military operations or having defence implications will not be charged to the EC
budget. The Council may also decide unanimously not to charge expenditures to the EC budget.
Where expenditure is not charged to the EC budget, it will be charged to the Member States,
according to their gross national product scale, unless the Council unanimously decides
otherwise. Member States that have made a formal declaration under the TEU will not be
obliged to contribute financing to operations having military or defence implications. Where the
EC is responsible for financing CFSP action, the TEC budgetary provisions apply. 57 This means an
extended role for the Court of Auditors as well as the European Parliament. The competence for
the EC to fund action outside the scope of the TEC is derived from Article 268, second paragraph
which reads:
The administrative expenditure occasioned for the institutions by the provisions of the
Treaty on European Union relating to common foreign and security policy common […]
shall be charged to the budget. The operational expenditure occasioned by the
54 Kadi (appeal) n 53 para 216.
55 T Tridimas and JA Gutierrez-Fons n 50.
56 Article 215(2) Treaty on the Functioning of the European Union (TFEU) [ex Article 301 TEC].
57 Articles 246-248 TEC.
30

implementation of the said provisions may, under the conditions referred to therein, be
charged to the budget.
Community Decisions in support of or as a follow up to CFSP decisions are not financed based
on Article 28 TEU. In such situations, normal Community decision-making procedures apply. 58
Responsibility of international organizations for wrongful acts
In 2002, the International Law Commission (ILC) made the decision to include the responsibility
of international organizations in its programme. In its first report 59 , the ILC begins with a
discussion of the concept of ‘international organization’ drawing upon the Vienna Convention
on the Law of Treaties and the definition of the term by the United Nations. The Report
concludes that “[i]t is to be assumed that international law endows these international
organizations with legal personality” otherwise no question of international responsibility would
arise. 60 Therefore, the definition eventually selected by the ILC requires that the organization
possess its own international legal personality. 61 However, the commentary explains that the
acquisition of legal personality does not depend on its being conferred in the organization’s
constituent documents and that its acquisition can be assessed via various liberal methods,
citing case law of the ICJ to the effect that international organizations are subjects of
international law and “bound by any obligations incumbent upon them under general rules of
international law, under constitutions or under international agreements to which they are
parties”. 62 Assuming that the EU has a legal personality of its own, the ILC has chosen a test of
effective control in order to determine whether an international organization is responsible for
58
For more information on CFSP financing, see RA Wessel, The European Union’s Foreign and Security
Policy: A Legal Institutional Perspective (Kluwer Law International 1999) 96-100.
59 th
ILC, Report of the Working Group, 54 Session (2002), available at:
http://untreaty.un.org/ilc/guide/9_11.htm.
60
ibid 230.
61 th
ILC, Report of the Working Group, 55 Session (2003), available at:
http://untreaty.un.org/ilc/guide/9_11.htm.
62
ibid 42, citing ICJ advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt, ICJ Reports, 1980 p 73 at 89-90, para 37.
31

the conduct of organs or agents placed at its disposal by a state, e.g., military contingents which
might be placed at the disposal of the EU by its Member States in the event that the EU moves
toward a greater presence in CFSP. Draft Article 5 reads as follows:
The conduct of an organ of a State or an organ or agent of an international
organization that is placed at the disposal of another international organization shall be
considered under international law an act of the latter organization if the organization
exercises effective control over that conduct. 63
The commentary to Article 5 specifically cites the example of a State’s provision of military
troops to the United Nations for peacekeeping operations and states that it is often the case
that the lending organ may still retain some control over the troops in terms of disciplinary
powers and criminal jurisdiction. 64 The ILC discussed this issue in the context of the UN and cited
a statement by the UN Legal Counsel discussing the subsidiary nature of a UN peacekeeping
force, whose acts are imputable to the UN based on the UN’s belief that it has exclusive control
over the deployment of troops in a peacekeeping force. 65 The test of effective control has
support in international law (see Behrami discussed below) and so the decision of the ILC to
incorporate it into its draft articles is logical.
Competence to Enforce: The European Court of Justice
The TEC established the European Court of Justice (ECJ) and Court of First Instance (CFI) to
ensure the interpretation and application of the TEC. 66 The courts therefore have jurisdiction
over matters falling within Community law. However, competence under the TEU is varied.
Article 46 TEU restricts the powers of the ECJ (and CFI) to a selection of provisions within the
TEU, not including CFSP. However, there have been several instances where CFSP-related issues
63 th
ILC, Report of the Working Group, 56 Session (2004) 99, available at:
http://untreaty.un.org/ilc/guide/9_11.htm.
64
ibid 110.
65
ibid 111-12, citing an unpublished letter of 3 February 2004 by the United Nations Legal Counsel to the
Director of the Codification Division.
66 Article 220 TEC.
32

have come before the Court in the context of anti-terrorism measures that have blurred the
boundary between what is justiciable and what is not.
Kadi and Yusuf
The ECJ and international law
In 2005, the CFI had occasion to comment on the relationship between the UN and the EU in
Kadi v Council of the European Union 67 and Yusuf v Council of the European Union 68 . The cases
concerned two individuals alleged to be financers of terrorism and placed on a watch list by the
UN Sanctions Committee, with their assets frozen as required by UNSCRs. The UNSCRs were
implemented with the European Community via Council regulations that directly transposed the
UNSCRs into EC law. The petitioners claimed that the implementation of the sanctions violated
the Treaty of Rome and argued that their fundamental rights were violated. 69
The CFI highlighted the supremacy of UNSCRs over the European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR) and Member State treaty obligations. It
emphasized that although the EU is not itself bound by the UN Charter, Article 11(1) TEU 70 binds
the Community to the UN Charter and therefore its mandate must not be infringed nor the
performance of those obligations impeded by the Union. 71 The Community is furthermore
required to adopt all provisions necessary to aid the Member States in the fulfilment of their
obligations under the Charter. 72 In this context, it discussed its succession theory, i.e. the idea
67 Case T-315/01 [2005] ECR II-3649.
68 Case T-306/01 [2005] ECR II-3533.
69 Kadi n 67 para 59; Yusuf n 68 para 190. A similar case involving restrictive measures in respect of Liberia
was argued before the CFI where the applicant alleged breaches of the right to property and the principle
of territoriality, both of which were rejected as unfounded by the Court – Case T-362/04 Minin v
Commission of the European Communities ECR [2007] II-2003.
70 “The Union shall define and implement a common foreign and security policy covering all areas of
foreign and security policy, the objectives of which shall be: - to safeguard the common values,
fundamental interests, independence and integrity of the Union in conformity with the principles of the
United Nations Charter….”
71 Kadi n 67 para 192-193, 197; Yusuf n 68 para 242-244, 247.
72 Kadi n 67 para 198; Yusuf n 68 para 254.
33

that the EC succeeded the Member States in their obligations within the framework of the UN in
the same way it succeeded such obligations in the context of their General Agreement on Trade
and Tariffs (GATT) obligations. 73 The CFI based this discussion on Article 307(1) and stated that
in areas where the EC assumed competence that previously belonged to the Member States
through an international agreement, the EC becomes bound by the provisions of that
agreement. 74
The CFI proceeded to discuss the potential conflict of UNSCRs with the rights guaranteed in the
ECHR, holding that under the UN Charter, obligations of the member states of the UN prevail
over any other obligation including those contained in the EC Treaty and in the ECHR. 75
The CFI went on to observe that given such supremacy,
… resolutions of the Security Council at issue fall, in principle, outside the ambit of the
Court’s judicial review and that the Court has no authority to call in question, even
indirectly, their lawfulness in the light of Community law. On the contrary, the Court is
bound, so far as possible, to interpret and apply that law in a manner compatible with
the obligations of the Member States under the Charter of the United Nations. 76
However, the CFI then turned to rules of jus cogens and created a limited area under which the
ECJ might review, although indirectly, UNSCRs:
73 Kadi n 67 para 203.
74 Kadi n 67 paras 198-203.
75 From the standpoint of international law, the obligations of the Member States of the United Nations
under the Charter of the United Nations clearly prevail over every other obligation of domestic law or of
international treaty law including, for those of them that are members of the Council of Europe, their
obligations under the ECHR and, for those that are also members of the Community, their obligations
under the EC Treaty…The primacy extends to decisions contained in a resolution of the Security Council
(in accordance with art. 25 of the Charter of the United Nations, under which members of the UN agree to
accept and carry out the decisions of the Security Council). Yusuf n 68 paras 231, 234.
76 ibid para 276.
34

None the less, the Court is empowered to check, indirectly, the lawfulness of the
resolutions of the Security Council in question with regard to jus cogens, understood as
a body of higher rules of public international law binding on all subjects of international
law, including the bodies of the United Nations, and from which no derogation is
possible. 77
This indirect judicial review of UNSCRs is permissible in “an action for annulment of a
Community act adopted, where no discretion whatsoever may be exercised, with a view to
putting into effect a resolution of the Security Council”. 78
The CFI accepted without analysis that the rights at issue in the case 79 constituted jus cogens
rules simply by virtue of their inclusion in the UDHR and the ICCPR, although it found no
violation in both cases. 80
The ECJ handed down its decision on the appeal. 81 On appeal, the ECJ set aside the judgments
of the CFI and ruled that the Community has the jurisdiction to review Community measures
that give effect to UNSCRs against the general principles of the Community. The Court held that
although it is true that any direct review of a UNSCR, even if limited to compatibility with jus
cogens, is not for the Community judicature, any judgment on the compatibility of Community
legislation intending to give effect to such a measure would not affect that measure’s primacy in
international law. It continued to discuss the basic notions of fundamental rights in Community
law and the fact that international agreements “cannot affect the allocation of powers fixed by
the Treaties”, one of which is the Court’s obligation to ensure the protection of fundamental
77
ibid para 277.
78
ibid para 282.
79
Including deprivation of property, right of personal defence, and right of effective judicial review.
80
Kadi n 67 paras 225-291; Yusuf n 68 paras 277-346.
81
Joined Cases C-402/05 P and C-415/05 P, Kadi & Al Barakaat International Foundation v Council and
Commission.
35

ights, including those found within the ECHR. The Court concluded that international treaty
obligations cannot be prejudicial toward the constitutional principles of the EC Treaty.
The Court also acknowledged that the UN Charter does not impose any particular models for
the implementation of its resolutions, leaving it to the Members to decide how to transpose
them into their domestic legal order. Therefore, the Court concluded that the principles
governing the UN do not themselves proscribe judicial review of the implementing measures in
light of Community principles. It also noted that regardless of the status of UNSCR principles in
Community law, such instruments do not prevail over the Treaty or other sources of primary law
(e.g. fundamental rights), and may only take precedence in respect of secondary (i.e. non-Treaty)
Community law. 82
Based on this limited power of review, the ECJ determined that the Community Regulation
infringed the applicants’ fundamental rights under Community law, in particular, the right to be
heard and the right to effective judicial review. The Court further held that the freezing of the
applicants’ funds was an unjustified restriction on their right to property and annulled the
Regulation insofar as it froze their assets. Having found that a review against the general
principles is lawful in these circumstances, the Court did not consider the CFI’s previous finding
regarding review of the Community Regulation against jus cogens norms. 83
82 Kadi n 67 paras 307-309, as discussed in T Tridimas and JA Gutierrez-Fons n 50.
83 Subsequently, in 2006, the CFI built upon its holdings in Kadi and Yusuf in its rulings in the cases of
Ayadi v Council of the European Union (Case T-253/02 [2006] ECR II-2139) and Hassan v Council of the
European Union (Case T-49/04 [2006] ECR II-52). Faced with another Council regulation which identically
transposed a list of suspects generated by a UNSCR, the CFI focused on the level of protection provided
by the Member States to the interests of their nationals/residents. The CFI restated its discussion on jus
cogens and indirect review of UNSCRs, and upheld the freezing of the petitioners’ funds. The Court
commented that although such a measure was drastic, it did not impair the applicants’ ability to lead
satisfactory personal, family and social lives. The Court evaluated the mechanism for delisting and held
that it did not violate jus cogens principles relating to the fundamental right to a fair hearing, and also
sanctioned the procedures of the UN Sanctions Committee which provided for national review by the
relevant authorities and if necessary, via the judiciary. (Ayadi n Erreur ! Signet non défini. para 149;
Hassan n Erreur ! Signet non défini. para 92).
36

The ECJ and CFSP
Substantive review of CFSP
Article 46 TEU sets forth the powers of the Court in relation to the provisions of the TEU. In sub-
(a) through (f) Article 46 delineates the specific competences of the Court in this regard, citing
jurisdiction over title VI in certain circumstances, but not Title V. Article 46(f) provides that the
Court has jurisdiction in relation to Articles 46 to 53, which covers CFSP in extremely restricted
circumstances. 84
Note that the Lisbon Treaty (Consolidated Version) states that the ECJ has no jurisdiction with
respect to the provisions on the CFSP, except with regard to the review of legality. 85 This article
is cited as being ex-Article 11 TEU, however, that article does not include a specific statement of
non-jurisdiction with regard to CFSP. This is, in fact, an addition.
In 2006, the CFI issued its judgment in Organisation des Modjahedines du peuple d’Iran v
Council 86 (OMPI) concerning again a UN sanction with regard to freezing orders in the fight
against terrorism. OMPI was one of the organizations proscribed by the United Kingdom Home
Secretary based on the Terrorism Act 2000. Subsequently, the UNSC issued a resolution
requiring essentially that States freeze the assets of persons or entities participating in or
facilitating the commission of terrorist acts and any entities related to such persons. The
Community implemented this resolution by means of two common positions 87 under its CFSP
and provided that the list of entities falling under the sanctions “is to be drawn up on the basis
of precise information or material in the relevant file which indicates that a decision has been
84
This will be discussed below with regard to the ECJ’s review of legality of measures.
85
Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the
European Union, OJ C 115, 9.5.2008, Article 24.
86
Case T-228/02 ECR [2006] II-4665.
87
Common Position 2001/930/CFSP on combating terrorism (OJ 2001 L 344, p. 90) and Common Position
2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
37

taken by a competent authority in respect of the persons, groups and entities concerned”. 88 This
meant that the Council lists were to be based on national measures. It was further decided that a
regulation was necessary in order to implement the provisions in the common positions at
Community level and adopted Regulation 2580/2001. 89 The entities to be included in a similar
list under the Regulation were determined by additional council decisions; however, OMPI was
not on that list. Only when the Council adopted Common Position 2002/340/CFSP, updating
Common Position 2001/931/CFSP 90 did the Council also update the list of entities at which time
OMPI’s name did appear. In fact, OMPI was unaware of the national measure which led to its
placement on the Council’s list. Since the time the applicant had filed the case, however, these
common positions had been replaced and the only relevant pieces of legislation were Common
Position 2005/936 and Decision 2005/930 which implemented the Regulation. 91
First the CFI engaged in a discussion concerning the absence of any provision in either Title V
(CFSP) or Title VI (Justice and Home Affairs - JHA) of the TEU for actions for annulment before
the European Courts because common positions are not adopted on the basis of the EC Treaty
but are rather acts of the Council. 92
The CFI then focused on the level of discretion given to the Member States by the UNSCR to
identify the persons to be included on the lists and distinguished this from the facts in Kadi and
Yusuf where the UNSCRs specifically identified the persons. The Court concluded that this
discretion meant that the Community exercised its own powers in relation to identifying the
entities to be placed on the list, and therefore, the courts have jurisdiction to review the legality
of the regulations which implement the Council Decisions against fundamental principles of the
EU. That being the case, the CFI annulled Council Decision 2005/930/EC implementing
88 Article 1(4).
89 On specific restrictive measures directed against certain persons and entities with a view to combating
terrorism.
90 OJ 2002 L 116, p 75.
91 OMPI n 86 para 27.
92 ibid n 86 paras 46 and 47.
38

Regulation 2580/2001 based on violations of the right to a fair hearing, the requirement to state
reasons, and the right to effective legal protection.
Relying on Article 46 TEU, the CFI dismissed the application for annulment of Common Position
2005/930 based on its lack of jurisdiction over law adopted in the second pillar. It reasoned that
Article 46 is exhaustive in nature and does not explicitly delineate competence under the second
pillar.
The decision in OMPI as contrasted with the decisions in Kadi and Yusuf, reflects the
classification of UNSCRs as either general or specific. 93 Where the UNSCR is specific, ECJ review
is limited to the question of whether there has been a violation of the principles of jus cogens (as
discussed above in Part II). Where the UNSCR is general, however, it appears from the decision
in OMPI that where the Community has some discretion with regard to implementation, the ECJ
has jurisdiction to assess the measure against the general principles. Consequently, this of
course means that any judgment given on the European legislation would indirectly include a
judgment on the underlying UNSCR. 94
It is also important to mention at this point, an argument which has been made by Eckes to the
effect that the TEU gives the ECJ indirect review over CFSP measures. 95 Articles 46(f) extends the
powers of the Courts of the Community to articles 46 to 53. Article 47 states that nothing in the
TEU is to affect the Treaties. This could be read, as Eckes has read it, as a mandate to the Court
to maintain the balance between the pillars and hence, a jurisdiction over measures adopted
outside the first pillar. 96
93 C Eckes, Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council 44 CMLRev 1117,
1119 (2007).
94 ibid.
95 ibid at 1122.
96 ibid at 1123.
39

PKK and KNK v Council of the European Union 97 involved the same legislation as OMPI and the
facts are largely the same. The Kurdish Workers’ Party (PKK) was formed to seek self-
determination for the Kurdish population under Turkish rule and has been responsible for
numerous acts of violence and the lost of an estimated 37,000 lives. Following the adoption of
UNSCR 1373 in 2001, the EU adopted two common positions providing for the freezing of assets
of certain organizations and individuals. Taking the view that Community legislation was
needed in order to implement the common positions, the Community passed a regulation and
decision listing the organizations and individuals, of which PKK was one (which have since been
updated by more recent decisions). PKK sought the annulment of the Council decision naming it
as an organization subject to the Community Regulation.
Taking the view that the Council decision violated the fundamental requirement under EC law to
give reasons, the CFI annulled the decision insofar as it concerned the PKK.
The applicant in this case did not call into question the validity of the common positions, as in
OMPI so the question of jurisdiction over CFSP matters was not considered by the Court.
The facts in Segi and others v Council of the European Union 98 are relatively the same as in the
previous cases: Segi is a Basque youth movement that requested before the CFI, originally, that
it be granted damages for its alleged illegitimate inclusion on the list annexed to Common
Position 2001/931/CFSP. The Common Position was adopted in consideration of the fact that
Community and Member State action was necessary in order to implement UNSCR 1373 (2001)
relating to the fight against terrorism and was adopted on the basis of both Title V (CFSP) and
97 Case T-229/02 ECR [2008] I-000. See also Case T-327/03 Stiching Al-Asqa v Council of the European
Union (ECR number unavailable at time of writing); Case T-253/04 Kongra-Gel v Council of the European
Union (ECR number unavailable at time of writing); Case T-47/03 Sison v Council of the European Union
(ECR number unavailable at time of writing)
98 Case C-355/04 P ECR [2007] I-1657. On the same day, the ECJ heard Case C-354/04 P Gestoras Pro
Amnistía v Council of the European Union ECR [2007] I-1579 which was essentially the same case and was
resolved in the same way as Segi.
40

Title VI (JHA). The Common Position included measures in both the third and first pillars, namely,
the exchange of information (Article 4) and the freezing of funds (Articles 2, 3), respectively.
However, the annex specifically listed Segi and various others as only being the subject of Article
4; hence, the Community was not required to freeze Segi’s assets. The CFI rejected the action
based on the fact that its jurisdiction to grant damages extended only to Community measures,
which were not at issue in this case due to the inapplicability of Articles 2 and 3. Because Segi is
unaffected by any Community measure, it cannot therefore claim for damages in court.
The case was subsequently appealed before the ECJ. The Court began by discussing jurisdiction
over Title VI based on Article 46 TEU which restricts the ECJ’s powers to conditions listed in
Article 35 TEU. In Advocate General Mengozzi’s opinion, he discussed the legal basis of the
measures taken and noted that although Common Position 2001/931/CFSP comes within the
framework of the common foreign and security policy under Title V, some of the measures for
which the Common Position provide (i.e. those measures affecting Segi and that can be
classified as mutual assistance between MS) are operational instruments within the scope of
police and judicial cooperation (Title VI). It should be noted that there is no basis for ECJ
jurisdiction under Title V TEU (CFSP); however, as the Common Position involved operational
measures under Title VI where there is limited jurisdiction should the national courts choose to
accept it, the Court assessed its jurisdiction on that basis. In that Title, Article 35 contemplates
jurisdiction in three circumstances, none of which include an action for damages based on Title
VI. 99 It went on to consider remedies in relation to the right to effective judicial protection and
noted that while the competence of the ECJ was narrow with regard to Title VI, it was even more
restricted in relation to Title V. 100 However, it commented that Article 6 TEU makes it clear that
the institutions are still bound to respect the rule of law and fundamental rights as general
99 Segi n 98 para 45.
100 ibid para 50.
41

principles of Community law and as such are subject to review of their actions in the same way
Member States are subject to such review when they implement Union law. 101
The Court went on to examine the Council’s ability under Article 34(2)(a) TEU to “adopt common
positions defining the approach of the Union to a particular matter” and highlighted the fact
that although Member States are bound by virtue of the duty to cooperate in good faith, to take
all appropriate measures to ensure fulfilment of their obligations under EU law, common
positions are not, themselves, intended to produce legal effects in relation to third parties. 102
This, the Court believed, is why only framework decisions and decisions under Title VI can be the
subject of an action for annulment under Article 35(1) TEU. This is also the case with regard to
the preliminary reference procedure in the Member States.
Following this line of reasoning, the Court then held that if a common position is intended to
produce legal effects in relation to third parties, it must be capable of review based on the
Article 35(1) preliminary reference procedure:
The right to make a reference to the Court of Justice for a preliminary ruling must
therefore exist in respect of all measures adopted by the Council, whatever their nature
or form, which are intended to have legal effects in relation to third parties. 103
The Court said that to interpret it in a more strict sense would run contrary to the purpose of
Article 35(1) which is “to guarantee observance of the law in the interpretation and application
of the Treaty”. 104 This results, therefore in an indirect review of any measure intended to produce
legal effects in relation to third parties, including as some have argued, CFSP measures under
Title V. 105
101
ibid para 51.
102
ibid para 52.
103
ibid para 53.
104
ibid.
105
Eckes n 93 p 1125, n 54.
42

The language used by the Court in this case implies that any Council measure must be subject
to this review. There is no language limiting the review to third pillar measures only. However,
whether this is indeed the case remains to be seen.
Revisiting Kadi and Yusuf
Kadi, Yusuf, Ayadi and Hassan all involved challenges to Community legislation in the context of
UNSCRs, and they also involved CFSP legislation on which the Community legislation was based,
but the legality of these measures was not called into question before the Court. In each case,
the ECJ confirmed its lack of jurisdiction over UNSCRs, but then went on in some cases to
evaluate the Community implementing measures against jus cogens principles, while in others,
under general principles of Community law.
The question here is what happens to the underlying CFSP legislation if the Community
implementing legislation is deemed incompatible with either jus cogens rules or general
principles? Leaving aside the fact that it would mean that the ECJ was indirectly ruling on the
legitimacy of a UN measure, it could be argued that the same effect would occur with regard to
the CFSP measures. If the Community legislation is invalidated, would the CFSP measures on
which it was based share the same fate? It is likely that this would be the case and so one could
argue that the ECJ has indirect jurisdiction over CFSP measures in the same way one might
argue that such indirect jurisdiction exists over UNSCRs. in this respect.
Review of legality of measures
Taking the case law above into account, one can see that it is generally the case that there is no
scope for the ECJ to rule on provisions in the Treaties relating to CFSP or any actions taken
based on those provisions. But there is a difference between ruling on the substance of such
action and the basis for such action. Article 35.6 gives the Court jurisdiction to review the legality
of framework decisions and decisions in actions brought by a Member State or the Commission
43

“on grounds of lack of competence, infringement of an essential procedural requirement,
infringement of this Treaty or of any rule of law relating to its application , or misuse of powers.”
This language mimics the wording of Article 230 TEC which covers actions for annulment based
on the same grounds. However, Article 35.6 TEU is not specifically linked to Article 230 TEC. The
link can be found in the case law of the Court, exemplified by ECOWAS 106 below. But it must be
noted that the operation of these Treaty provisions do not effectively give the Court jurisdiction
over CFSP matters. This mechanism is purely concerned with the division of competence
between the pillars, and is based on Article 47 TEU which provides for the protection of the
integrity of the TEC (and any subsequent acts or treaties which supplement or amend it, i.e. the
acquis communitaire) in the application of the TEU.
The Treaty of Lisbon makes small changes to the current state of affairs. Article 24 of the
Consolidated Treaty on European Union (CTEU) explicitly states that there is no jurisdiction of
the ECJ over those parts of the Treaty relating to CFSP, nor over any acts adopted on the basis
of those provisions. A similar statement is made in Article 275 of the Consolidated Version of the
Treaty on the Functioning of the European Union (ex-TEC, now TFEU). Such an express
statement is absent from the Treaties as they currently stand. Article 24 goes on to refer to the
procedure for actions for annulment, providing for the monitoring of compliance with Article 40
of the Consolidated Treaties and the review of the legality of certain decisions provided for
under the second paragraph of Article 275. Article 40 is the article which refers to the balance of
competences between the pillars, stating that the implementation of the CFSP shall not affect
the application of the TFEU and vice versa. The paragraph referenced in Article 275, in turn,
refers to the procedure as detailed in the fourth paragraph of Article 263 – actions for
annulment. The fourth paragraph allows natural or legal persons to institute proceedings
against an act that is addressed to that person or directly and individually concerns him, or
against a regulatory act which is of direct concern to him and does not require implementing
106 Case C-91/05 Commission of the European Communities v Council of the European Union (ECOWAS
case) ECR [2008] (page number unavailable at time of writing).
44

measures. The proceedings must satisfy the conditions of the first and second paragraphs of
Article 263: they must be actions to review the legality of such measures on grounds of “lack of
competence, infringement of an essential procedural requirement, infringement of the Treaties,
or of any rule of law relating to their application , or misuse of powers”.
The most significant change is with regard to Article 47 TEU (now article 40 CTEU) and the
maintenance of the integrity of the TFEU. The Treaty of Lisbon makes this duty reciprocal
between the two treaties, meaning that not only should the application of the TFEU protect the
acquis communitaire, but also, the application of the CTEU should not affect the integrity of the
CFSP rules.
In ECOWAS the Commission brought an action for annulment under Article 230 TEC of Council
Decision 2004/833/CFSP which implemented Joint Action 2002/589/CFSP in the context of the
EU’s contribution to the fight against the proliferation of small arms and light weapons,
specifically with regard to its obligation to ACP States under the Cotonou Agreement. The
Commission submitted that the decision was not adopted under the correct legal basis, as its
subject matter fell within the shared competence of the Community and could have been
adopted on the basis of competences conferred on the Community in the areas of development
cooperation (and likewise for the joint action).
The Council argued that the Court had no jurisdiction to rule on the legality of a measure falling
within the CFSP. 107 However, the ECJ stated that Article 46(f) TEU gave the ECJ jurisdiction over
matters falling under Article 46-53 TEU. This includes Article 47 which protects the powers of the
Community conferred on it by the TEC. 108 The Court agreed with the Commission’s argument
that Article 47 applies to areas of shared competence as well as areas of exclusive Community
107 Commission v Council n 106 para 30.
108 The relevant portion of this Article reads, “…nothing in this Treaty shall affect the Treaties establishing
the European Communities or the subsequent Treaties and Acts modifying or supplementing them.”
45

competence and then set out to determine whether Article 47 had been infringed by the
Council. The Court discussed the applicability of Article 47 and said that that article would be
infringed if it is clear that a measure adopted under either Title V or VI has as its main purpose
the implementation of a policy conferred by the TEC, and that it could have been adopted on
the basis of that Treaty. After considering the aim and purpose of the legislation and whether it
pursues objectives falling within the Community development policy, the Court concluded that
there was an infringement because the subject matter of the contested decision also falls within
development cooperation policy and therefore must be annulled.
Taking that into account, the ECJ held that:
[i]t is therefore the task of the Court to ensure that acts which, according to the Council,
fall within the scope of Title V of the Treaty on European Union and which, by their
nature, are capable of having legal effects, do not encroach upon the powers conferred
by the EC Treaty on the Community. 109
The Court went on to say that,
[i]t follows that the Court has jurisdiction to consider the action for annulment brought
by the Commission under Article 230 EC and, in that context, to consider the pleas
invoked in accordance with Article 241 EC in so far as they allege an infringement of
Article 47 EU. 110
In its decision, the Court highlighted several other decisions concerning Title VI legislation in
support of its conclusion that it is the task of the ECJ to maintain the balance of competence
between the Community and then Union. 111
109
Commission v Council n 106 para 33.
110
ibid para 34.
111
Most recently, see Case C-91/05, Commission v Council (Small Arms Case) [2008] ECR I-365 which
affirms that in light of the fact that the CFSP ‘supplements’ the Community, where an action can be taken
on the basis of the TEC, it should be taken in light of that Treaty, even in areas of shared competence; see
46

It must be reiterated at this time, that this case law does not provide for any sort of jurisdiction
over CFSP. It is simply a confirmation of jurisdiction to review whether a measure adopted
outside of EC order should have been adopted within it. As the Court included in its ruling, this
jurisdiction has been used in many cases prior to its use within the context of this case. Where,
under Article 47 TEU, an institution or a Member State believes that the Council, Parliament,
Commission, or European Central Bank has infringed the competence of the Community, it may
initiate an action for annulment based on Article 230 TEC. The ECJ then has jurisdiction to review
the legality of the act and to decide, after an evaluation of the object and purpose of the
legislation, whether the CFSP act infringes Community competence. The ECJ does not, however,
have jurisdiction to review the substance of the CFSP measure, and it does not appear as though
Member States may request a preliminary ruling in this context, nor may individuals contest
CFSP measures in this way.
Comments
How does the ECJ take into account international law?
The case law of the Community and the Treaties themselves make it clear that international law,
most specifically the rights enshrined in the ECHR, are taken into account by the Court of Justice
when making its decisions. In Kadi and Yusuf, although the Court recognized that UNSCRs fall
outside the scope of its review, the Court empowered itself with the ability to indirectly assess
the lawfulness of UNSCRs with regard to jus cogens principles. This point of view was
subsequently affirmed in Ayadi and Hassan. Most recently, in the appellate case of Kadi and Al
Barakaat, the ECJ confirmed its commitment to upholding the general principles of Community
law, in which regard the ECHR has “special significance”, and reaffirmed case law holding that
compatibility with human rights is a condition of the lawfulness of Community acts. The ECJ has
also, Case C-170/96 Commission v Council [1998] ECR I-2763, para 16; Case C-176/03 Commission v
Council [2005] ECR I-7879, para 39; Case C-440/05 Commission v Council [2007] ECR I-9097, para 53.
47

never explicitly considered international human rights obligations outside of their application
within its own internal legal order.
But it is clear that the Community is essentially autonomous in that it has its own internal
structure for the protection of rights that are typically protected by international customary law
and treaties so that it is largely unnecessary for the Community to take international law into
account on any large scale.
Does the ECJ play any role with regard to CFSP?
The short answer to this question is no. However, case law suggests that there are limited
circumstances in which CFSP legislation will come before the ECJ.
First, Commission v Council illustrates that the ECJ has the task of maintaining the balance of
competences between the first and second pillars and so has jurisdiction to assess the legality of
CFSP measures in that respect only. But this is true in regard to all legislation, whether it come
from the first, second or third pillars and only applies to the institutions and to the Member
States. Furthermore, the Court is restricted to an evaluation of legality only and may not assess
the merits of those parts of the legislation that fall within the framework of CFSP.
Second and most relevant for the purposes of this report, OMPI and Segi extend judicial
protection to areas where the Court previously did not have competence. The judgment in
OMPI allows indirect review of UNSCRs where they leave discretion to the Member States for
their implementation. Where this is the case, the Court is bound to observe the general
principles of the Community, which include the rights in the ECHR and therefore may engage in
an evaluation of whether the legislation abides by such principles. Segi went further than OMPI
to allow national courts to request a preliminary reference with regard to any Council measures
that are intended to produce legal effects in relation to third parties. Although this case involved
48

a third pillar measure, its ruling may very well extend to measures under the second pillar,
thereby giving the ECJ limited jurisdiction over CFSP.
Although none of these cases specifically provides judicial protection in the context of the
second pillar, it is clear that the jurisdiction of the Community Courts is expanding in order to
provide effective judicial protection. It is also possible that the ruling in Segi will apply not only
in the context of third pillar measures, but also with regard to CFSP measures.
49

V. Internal Mechanisms
Institutional Bodies
COJUR
The EU Working Group on International Law (COJUR) was established by the Council’s PSC in
1990. COJUR comprises representatives of the Member States, who are usually legal experts. It
meets twice a year to discuss the development of international law, particularly the law of
treaties. The IHL Guidelines 112 give COJUR the competence to make suggestions to ensure the
protection of IHL in the event that an armed conflict is at hand. 113
In 2002, COJUR recommended that its mandate be extended to include a permanent sub-group
focusing on the ICC. 114 An example of the sub-group’s work in this regard is its issuing of a legal
report in September 2002 on the legitimacy of US bilateral treaties that sought to commit the
EU to the non-surrender of US citizens to the ICC on the basis of Article 98 of the Rome Statute.
The task of the sub-group was to define the legal position of the EU and to specify whether any
bilateral agreement would be effective. 115
COHOM
The EU Working Group on Human Rights (COHOM) was created in 1987 with the mandate to
make recommendations to the PSC to aid in the co-ordination of Member State responses to
human rights issues. COHOM is responsible for drafting annual reports on human in the EU
drafted the Guidelines on Human Rights Dialogue with Third Countries (discussed below), as
112 Discussed below in Part VI.
113 IHL Guidelines para 15(c).
114 COJUR Report of 15 May 2002, SEC/1161/02 COR 1.
115 The Draft Conclusions are available at: http://register.consilium.europa.eu/pdf/en/02/st12/12488-
r1en2.pdf.
50

well as monitors their implementation. As part of that monitoring function, COHOM is to make
the initial assessment of the human rights situation in a third state with the help of the EU
Development Committee (CODEV). In making this assessment, COHOM is to evaluate criteria
such as whether developments in human rights protection, the extent to which the state
government is willing to improve the human rights situation, the degree of commitment to the
protection of human rights it has demonstrated, its record of co-operation with the UN and its
attitude towards civil society within its borders. COHOM obtains this information from reports
submitted to it by heads of missions, international institutions and NGOs. COHOM has also
drafted guidelines concerning the criteria for eligibility for becoming a member of an EU
electoral observation mission 116 and on children and armed conflict 117 to date. COHOM’s role is
to a large extent that of policy-maker, rather than advisor during crisis situations.
CAHDI
The Committee of Legal Advisors on Public International Law (CAHDI) is part of the Council of
Europe and is the forum for the exchange of views on issues of public international law between
legal advisers of the Ministers for foreign affairs of the member States of the Council of Europe.
Their twice yearly meetings may also be observed by interested groups such as the ICRC or
Interpol. As all of the EU Member States are also members of the Council of Europe, CAHDI’s
work in IHL and HR is relevant.
The aims of CAHDI are to (1) increase the role of public international law and co-ordinate
national viewpoints; (2) develop best practice through sharing experience and exchanging views
on topical issues; (3) create a framework for international co-operation through a pooling of
experienced legal advisers; and (4) observe the work of other similar international bodies to aid
116 Council Decision 8728/99, PESC 165, COHOM 4, available at:
http://ec.europa.eu/europeaid/observer/observer_selection_criteria_en.pdf.
117 Council Decision 15634/03, available at:
http://ec.europa.eu/external_relations/human_rights/child/caafguidelines.pdf. These Guidelines are
discussed in Part VI of this Report.
51

Member States in the adoption of common viewpoints. 118 In doing so, CAHDI liaises with COJUR
and the UN’s International Law Commission.
The work done by CAHDI is largely technical in nature, for example topics included issues such
as the recognition of and the extent of the scope of reservations of international treaties. Since
2000 the Committee has become increasingly concerned with human rights and IHL issues.
Discussions tend to revolve around internal issues, for example how the Member States should
fulfil their international responsibilities to end domestic slavery or the treatment of refugees
within Europe.
Information Gathering and Fact-finding Capacity
Despite the extensive involvement of the EU with third countries, there is no centralised EU
intelligence service. The TEU includes several provisions related to information sharing. Article 16
requires that the Member States inform and consult with one another on any matter of foreign
and security policy of general interest and Article 20 stipulates that the diplomatic and consular
missions of Member States abroad must enhance co-operation through the exchange of
information. Some have argued that the lack of centralised intelligence may be due to the fact
that Member States’ own national and foreign interests have constrained the capacity for EU-
wide intelligence gathering. 119 Nevertheless, the EU does utilize several mechanisms to gather
information and intelligence in its CFSP.
118
More information is available at: http://www.coe.int/t/e/legal_affairs/legal_cooperation/public_international_law/General/.
119
‘'The European Union's Proposed Intelligence Service’, 17 June 2005, available at:
http://www.pinr.com/report.php?ac=view_report&report_id=316&language_id=1.
52

The EU Satellite Centre (EUSC) was brought into the EU with a Joint Action in 2001 120 as an
agency of the Council to support EU CFSP and ESDP decision-making. 121 It is supervised by the
Council’s PSC and is given operational direction by the Secretary General / High Representative
of the Council. The EUSC is chiefly tasked with providing satellite imagery analysis and is the
only organization of its kind in the field of space. The EUSC’s areas of priority reflect security
concerns as defined under the European Security Strategy but are principally the monitoring of
regional conflicts, state failure, organized crime, terrorism and proliferation of weapons of mass
destruction. The EUSC has offered support to humanitarian aid and peacekeeping missions and
has been used as an early warning tool for the prevention of potential armed conflicts.
Information is also gathered by EU Special Representatives who are emissaries of the Council
tasked with maintaining a political presence in areas of particular concern to the EU, where
conflict or crises pose a significant threat to peace and stability in the region. Their existence can
be traced to Article 18(5) TEU, which enables the Council to appoint a special representative with
a mandate in relation to certain policy issues. The Special Representatives “provide a direct link
to developments in these areas and allow the EU to have an active involvement in the search for
lasting solutions”. 122 The EU relies extensively on its diplomatic ties with third states in order to
gather intelligence: “regular political dialogue with a whole range of third countries have been
set up, usually with troika meetings at ministerial, senior officials and working group level,
summits and in some cases, meetings with all Member States and the Commission at ministerial
or senior officials level”. 123 In addition, the EU utilises the Council’s Policy Planning and Early
Warning Unit, which includes the Situation Centre (SITCEN), both of which are discussed in more
120
Council Joint Action of 20 July 2001 on the establishment of a European Union Satellite Centre
(2001/555/CFSP), available at:
http://www.eusc.europa.eu/images/stories//council%20joint%20action_consolidated%20version%20en.pd
f. The EUSC has existed since 1992 but did not become part of the EU until 2001.
121
For more information, please see: http://www.eusc.org/.
122
CFSP Overview, available at: http://ec.europa.eu/external_relations/cfsp/intro/index.htm#4.
123 http://ec.europa.eu/external_relations/cfsp/intro/index.htm
53

detail below with. Essentially, the role of both institutions is to monitor and analyse international
developments and events.
Funding and Assistance
The EU, that is the Commission and the Member States, constitute the world’s largest donor of
humanitarian aid. The Community’s competence for engaging in the sphere of humanitarian aid
is derived from Article 179 TEC. It authorizes the Council to adopt measures which further the
objectives of development co-operation, and is intended to complement Member State policies
in this area, hence it is an area of parallel competence. Although the Community is competent in
this regard, Member States are not precluded from determining their own policies of funding
and assistance, in light of the general obligation of loyalty to the Community and the TEC under
Article 10 TEC. The scope of humanitarian aid covers both man-made crises and natural disasters
and is divided into four key areas: (1) financing of humanitarian operations; (2) food activities; (3)
financing of operational support and disaster preparedness operations; and (4) support
expenditure. Together, the Community, Member States, and other international organizations
work to provide aid based on need and in accordance with the principles of neutrality,
independence and impartiality.
The principle objectives of the EU’s humanitarian aid operations are:
(a) to save and preserve life during emergencies and their immediate aftermath and
natural disasters that have entailed major loss of life, physical, psychological or social
suffering or material damage;
(b) to provide the necessary assistance and relief to people affected by longer-lasting
crises arising, in particular, from outbreaks of fighting or wars, producing the same
effects as those described in subparagraph (a), especially where their own governments
prove unable to help or there is a vacuum of power;
(c) to help finance the transport of aid and efforts to ensure that it is accessible to those
for whom it is intended, by all logistical means available, and by protecting
humanitarian goods and personnel, but excluding operations with defence implications;
54

(d) to carry out short-term rehabilitation and reconstruction work, especially on
infrastructure and equipment, in close association with local structures, with a view to
facilitating the arrival of relief, preventing the impact of the crisis from worsening and
starting to help those affected regain a minimum level of self-sufficiency, taking longterm
development objectives into account where possible;
(e) to cope with the consequences of population movements (refugees, displaced
people and returnees) caused by natural and man-made disasters and carry out
schemes to assist repatriation to the country of origin and resettlement there when the
conditions laid down in current international agreements are in place;
(f) to ensure preparedness for risks of natural disasters or comparable exceptional
circumstances and use a suitable rapid early-warning and intervention system;
(g) to support civil operations to protect the victims of fighting or comparable
emergencies, in accordance with current international agreements. 124
Since 2003, the EU has actively been reforming its humanitarian aid policy with a move toward
greater coherence and communication among the stakeholders. The EU clearly desires a more
strengthened framework for the distribution of humanitarian aid and better strategies for a
more efficient and effective aid delivery and implementation.
ECHO
The European Commission’s Humanitarian Aid department (ECHO) is responsible for short-term
humanitarian aid donorship. 125 Even though it has existed since 1992, it was given its primary
mandate for the administration of aid by Council Regulation 1257/96 126 , even though it has
existed since 1992. The Regulation places responsibility on the Commission for the co-
124
Council Regulation No 1257/96 of 20 June 1996 concerning humanitarian aid, OJ L 163, 02/07/1996, p
1-6, Article 2.
125
The EuropeAid Cooperation Office was created on 1 January 2001 based on a Commission decision of
the previous November and is responsible for long-term development aid and the implementation of all
the Commission’s external assistance instruments which are managed by Directorate General External
Relations. More information on EuropeAid is available here:
http://ec.europa.eu/europeaid/what/index_en.htm.
126
ibid.
55

ordination of aid and allows it to take measures necessary to promote co-ordination between is
own activities and those of the Member States. 127 ECHO was created to fulfill this mandate and
operates to provide emergency assistance and relief to the victims of natural disasters or armed
conflict outside of the EU. In addition to funding humanitarian aid, ECHO is responsible for
feasibility studies for its humanitarian operations, monitoring projects and co-ordinating
arrangements, spreading public awareness about humanitarian aid, and providing training in the
humanitarian field. 128
ECHO has funded projects in more than 85 countries since 1992 with an average budget of €
700 million per year. 129 Its budget is mainly derived from two sources: the general EC budget
and the European Development Fund (EDF). 130 Humanitarian aid is intended to respond to
demands in situations of immediate concern and so is allocated on a needs-based assessment.
Allocation decisions are not to be guided by or subject to political concerns. 131 The aid is
delivered via Community-funded actions executed by humanitarian international and non-
governmental organisations and the Member States. 132 The total ECHO budget for 2007 was €
769 million, fifty-five percent of which was allocated to African, Caribbean and Pacific (ACP)
countries. The recipient of the greatest amount of funds was Sudan, with € 110.45 million,
followed by the Democratic Republic of Congo (€ 50 million), Chad (€ 30.5 million), Zimbabwe (€
30.2 million), Sahel (€ 25.5 million), Uganda (€ 24 million) and Ethiopia (€ 20 million). 133
If an unforeseen event requires specific aid not already allocated for in the budget, ECHO may
draw upon the additional funds set aside in the Emergency Aid Reserve, which is set at € 221
127 ibid Article 10.
128 ECHO, “Background and Mandate”, available at: http://ec.europa.eu/echo/about/what/history_en.htm.
129 ECHO annual reports are available at: http://ec.europa.eu/echo/about/what/reports_en.htm.
130 The European Development fund is the main source of aid for development co-operation in the ACP
(African, Caribbean, and Pacific) states and the OCT (Overseas Countries and Territories). More
information is available at: http://europa.eu/scadplus/leg/en/lvb/r12102.htm
131 Framework Partnership Agreement with Humanitarian Organizations, 27/11/2007, p 4, para 4.
132 ibid, para 5.
133 For more information, see: http://ec.europa.eu/echo/funding/budget_en.htm.
56

million annually. 134 To draw upon these funds, there must be agreement between the
Commission, Council and Parliament. ECHO may also draw upon funds from the EDF, but only in
relation to ACP countries and overseas countries and territories. Neither fund was used by ECHO
in 2007, but this appears to be the exception rather than the rule. Having access to such a vast
amount of financial resources necessitates that ECHO regularly carry out strict audits and
financial controls both in the field and at the headquarters of partner organizations. 135
Alongside ECHO is a substantial network of EU staff assisting with the co-ordination and
implementation of projects, as well as ECHO field staff who are relief experts and can provide
ECHO with first-hand information and analysis of the situation on the ground before decisions
are taken at a higher level.
Partnerships
The way in which ECHO assists those in need is by funding Community humanitarian projects
executed through partnerships with various non-governmental organizations (NGOs), United
Nations agencies, and other international organizations, the former two comprising the majority
of funding with 47 and 42 percent, respectively. However, in the last five years UN funding has
increased and is surpassing NGO funding due to the increasing status of the UN as the main
actor involved in distribution of food and other aid. 136 ECHO strives to maintain a wide variety of
partnerships in order to establish a network of organizations with various specialties in order to
increase its capability to respond to different situations and circumstances. ECHO currently has
relationships with approximately 180 organizations. 137 Framework Partnership Agreements
(FPAs) govern the relationship between ECHO and its partners at an administrative level and
define the roles and responsibilities of the partnered organizations for the implementation of
134
ibid.
135
Further information available at http://ec.europa.eu/echo/funding/audit_en.htm.
136
European Commission Humanitarian Aid, The Budget. Available at
http://ec.europa.eu/echo/funding/budget_en.htm.
137
179 NGOs listed as of 6 October 2008, at http://ec.europa.eu/echo/files/about/actors/fpa_partners.pdf.
57

humanitarian operations. The objectives of the Agreements are to establish “a long-term co-
operation mechanism between the Parties, in order to ensure that humanitarian aid is delivered
to its beneficiaries in the most appropriate, rapid, efficient and effective manner”. 138 Although
the FPAs oblige partners to operate according to the humanitarian principles of humanity,
impartiality, neutrality and independence, 139 the binding nature of these obligations is unclear
and therefore it is uncertain whether the Commission is able to proceed against its partners for
breaches of this obligation, although compliance with “applicable international law” is
specifically mentioned in the FPA. 140 The relevant framework for infringement actions is under
Article 20 of the General Conditions for NGOs and Article 26 of the FPA. The two provisions are
essentially identical, providing first for amicable settlement and, failing that, proceedings before
the CFI.
The European Consensus on Humanitarian Aid
At the end of 2007, the Commission, Council and Parliament signed The European Consensus on
Humanitarian Aid 141 on behalf of the 27 Member States. The Consensus is meant to illustrate the
common EU vision for an approach to humanitarian aid, and is a response to factors such as the
increase in internal armed conflicts and the increased appreciation for environmental issues. The
Consensus is an attempt to achieve a morecoherent, co-operative, and communicative approach
so as to achieve a more efficient and effective delivery of humanitarian aid.
138
Framework Partnership Agreement with Humanitarian organisations (2008), p 6, para (1.1). Available at
http://ec.europa.eu/echo/files/about/actors/fpa/core_en.pdf.
139
The FPA (n 138) indicates in art 11.2 b) that the organisation “shall ensure … an effective and efficient
internal control system for the management of Actions which includes the respect of ethical and
humanitarian values…”. Article 9 allows for the suspension or termination of the FPA in the case of noncompliance;
art 20 covers dispute settlement.
140
FPA art 11.2 b) or art 1.1 Implementation principles of the General Conditions: “The Action shall be
culturally appropriate, adequate for the needs of the affected persons and comply with applicable
international law and national legislation of the country where the Action is implemented.”
141
Joint Statement by the Council and the Representatives of the Governments of the Member States
meeting within the Council, the European Parliament and the European Commission (“The European
Consensus on Humanitarian Aid”), OJ C 25, 30.1.2008, p. 1–12.
58

Part One of the Consensus describes the EU’s vision of humanitarian aid. It commences with a
Common Objective “to provide a needs-based emergency response aimed at preserving life,
preventing and alleviating human suffering and maintaining human dignity wherever the need
arises if governments and local actors are overwhelmed, unable or unwilling to act”. 142 Part One
includes a list of common principles and good practice and a common framework for delivering
EU humanitarian aid. It states the EU’s continued commitment to upholding the fundamental
humanitarian principles of humanity, neutrality, impartiality and independence and describes
them as “essential to the acceptance and ability of the EU, and humanitarian actors in general, to
operate on the ground in often complex political and security contexts.” 143 The Consensus
strongly endorses respect for international law, including international humanitarian law, and
notes that the EU Member States are parties to the Geneva Conventions and their Additional
Protocols. It furthermore reiterates its commitment to the principle of the Responsibility to
Protect, in accordance with the 2005 World Summit Outcome (which will be discussed below in
Part 6). The Consensus recognizes that the principles that apply to humanitarian aid are unique
to those applicable to other forms of aid and accordingly recommends consideration of long-
term strategies that are complementary to other forms of assistance which may also come into
play in a particular situation.
The Consensus explicitly states its support for Good Humanitarian Donorship (GHD) principles
and pledges the EU to work together and with others to apply best donor practice. The GHD
principles were initiated in 2003 by 16 donor governments in order to improve the quality of
their contributions to the humanitarian system. 144 The meeting resulted in the 23 Principles and
Good Practice of Humanitarian Donorship, 145 including the principle that aid should be guided
142
ibid, para 8.
143
ibid, para 10.
144
Ten of the donor countries were EU Member States (Belgium, Denmark, France, Finland, Germany,
Ireland, Luxembourg, Netherlands, Sweden and the United Kingdom).
145
Principles and Good Practice of Humanitarian Donorship, endorsed in Stockholm, 17 June 1003,
available at: http://www.reliefweb.int/ghd/a%2023%20Principles%20EN-GHD19.10.04%20RED.doc.
59

y the humanitarian principles of humanity, neutrality, impartiality and independence. 146
Specifically in relation to funding, the GHD Principles urge donor management that does not
adversely affect ongoing needs in other crises, and that is transparent, strategic, dynamic,
predictable, and compatible with UN agency and International Red Cross and Red Crescent
Movement appeals.
In terms of a common framework and co-ordination, the Consensus states that the EU “strongly
supports” the lead role of the United Nations, particularly the Office for the Coordination of
Humanitarian Affairs, and will ensure that EU donors and their partners will work together to
enhance the international humanitarian response. The EU will promote the common
understanding of needs assessment throughout the EU, 147 ensure a balanced response to crises
based on need, ensure quality, effectiveness and accountability through standards and
evaluation criteria, 148 and guarantee diversity and quality in a partnership that can respond
swiftly and efficiently to various crises. 149 The Consensus also provides for the use of civil
protection and military assets and capabilities and states that the use of such resources must
respect the principles of neutrality, humanity, impartiality and independence. 150
Part Two of the Consensus specifically relates to the EC and Humanitarian Aid. It details the role
of the Commission as a global presence that can ensure coherence in Community policy,
promote good practice across the EU, and facilitate coordination. 151 The Commission has
developed the Global Needs Assessment methodology which is used annually to analyze
general vulnerability and levels of crisis on a comparative level. This means of assessment will
be shared publicly and is considered ‘good practice’ under Good Humanitarian Donorship.
However, because of the recent character of the Consensus, no assessments have yet been
146 ibid, para 2.
147 ibid, part 3.2.
148 ibid, part 3.3.
149 ibid, part 3.4.
150 ibid, part 3.6.
151 ibid, paras 81-87.
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made public. The Commission is tasked with the presentation of an action plan for practical
measures to implement the Consensus. EU progress in relation to the Consensus is to be
reviewed and a report issued five years after the document’s signature.
The Consensus is implemented through the adoption of various ‘action plans’ by the
Commission. The current version of the Action Plan 152 was drafted in May 2008 and its first
implementation period is five years from the middle of that year. Action under the plan has been
grouped into six areas: (1) advocacy, promotion of humanitarian principles and international law;
(2) implementing quality aid approaches; (3) reinforcing capacities to respond; (4) strengthening
partnership; (5) enhancing coherence and coordination; and (6) the aid continuum. The Working
Paper states that most actions will be jointly pursued by the Commission and the Member
States (in close co-operation with partners and other stakeholders) and should be underway by
2009. Action is divided into priority actions and additional actions for each action area
mentioned above. It is significant that under the umbrella of area one, advocacy and promotion
of humanitarian principles and international law, the Commission has named “uphold[ing] the
fundamental humanitarian principles through EU coordinated positions promoting neutral
independent and impartial humanitarian action in all relevant international bodies” and
“operationalising the EU guidelines on promoting compliance with International Humanitarian
Law”, although the latter has been labelled as an ‘additional’ rather than ‘priority’ action. 153 In
area two, implementing quality aid approaches, the Action Plan specifically touches on children
in emergencies and gender mainstreaming as sectoral priorities. 154 A formal mid-term review
has been scheduled for 2010 to assess overall progress and to consider a successor Action Plan.
Humanitarian principles as a backdrop to partnerships
152 European Consensus on Humanitarian Aid – Working Paper, Brussels, 29 May 2008 SEC(2008)1991,
available at http://ec.europa.eu/echo/files/policies/consensus/working_paper_en.pdf.
153 ibid, p 6.
154 ibid, p 8.
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ECHO is committed to the promotion of and compliance with IHL. This commitment is reflected
mainly in the Consensus on Humanitarian Aid, but also in each of its partnership agreements
and is generally not a problem for the DG. 155 ECHO’s selection of its partners relies on the
principle of impartiality 156 and eligibility of aid actions abides by the core humanitarian
principles of humanity, impartiality, neutrality and independence 157 . This is reiterated in the
General Conditions Applicable to EC Grant Agreements with Humanitarian Organizations. 158
ECHO commissioned a study on monitoring methodology in 2008 which resulted in a series of
tools to help humanitarian organizations monitor various aspects of their organizations. 159 The
Study’s monitoring tools provides advice and examples of things such as how to conduct
individual interviews, how to communicate with children, gender analysis, conflict analysis, how
to assess child protection needs, and how to carry out a field visit. 160 In the introduction to
monitoring, the humanitarian context of aid is stressed and discussed in the context of
accountability, and a participatory approach that includes the affected population and local
actors is advocated. 161 The participatory approach inherently involves monitoring of
155
Joint Statement by the Council and the Representatives of the Governments of the Member States
meeting within the Council, the European Parliament and the European Commission, 30/01/2008, OJ C
25/1. For the Framework Partnership Agreement with the NGOs see FPA (n 138); see also the Financial
Administrative Framework Agreement between the EC and the UN, available at:
http://ec.europa.eu/echo/files/about/actors/fafa/agreement_en.pdf.
156
Regulation on Humanitarian Aid (n 185).
157
FPA (n 138) art 5.
158
General Conditions for NGOs, available at:
http://ec.europa.eu/echo/files/about/actors/fpa/general_conditions_en.pdf. The wording is identical to the
General Conditions for International Organisations, available at:
http://ec.europa.eu/echo/files/about/actors/fafa/gen_conditions_en.pdf.
159
G White and P Wiles, ‘Monitoring Overview and Guidance for Humanitarian Organizations’
(commissioned by DG ECHO) (2008), available at:
http://ec.europa.eu/echo/files/policies/evaluation/monitoring_methodo/Templates/Monitoring_Overview.
pdf; ‘Monitoring Tools’, available at:
http://ec.europa.eu/echo/files/policies/evaluation/monitoring_methodo/Templates/Monitoring_Tools.pdf
and ‘Monitoring Templates’, available at:
http://ec.europa.eu/echo/files/policies/evaluation/monitoring_methodo/Templates/Monitoring_Templates
.pdf.
160
‘Monitoring Tools’ (n 159) ch 2.
161 ‘Monitoring Overview’, ibid pp 4, 8.
62

discriminatory practice and the observance of impartiality and independence while working with
the local population.
Criticisms and Challenges
In recent years, ECHO has implemented many changes to its operating scheme with a view
toward improving its delivery of aid and to address certain criticisms about its methods. While it
has improved, there are some remaining issues in relation to (1) funding; (2) accountability; (3)
its application and promotion of HR and IHL; (4) relationships among institutions within the EU;
and (5) communication and visibility.
Funding
It has been suggested in the past that due to the scarcity of funds, that aid has become supply-
driven rather than needs-based due to the scarcity of funds. 162 To address this concern, in 2002
the European Parliament recommended that the appropriation of funds for humanitarian aid be
increased to a level of at least € 500-550 million per year (excluding food aid). The most recent
financial programming has achieved this objective, allocating sums at around € 499 million in
2008 and up to € 579 million in 2013. However, as these levels were set in 2002 they may no
longer be appropriate for responding to situations of crisis. 163 Recognizing this, the Council has
called for an “assessment of adequacy of the resources available”, 164 the requirement for which
was confirmed in the European Consensus on Humanitarian Aid. 165 The Action Plan calls for the
adequacy of funding to be officially reviewed in 2009. 166
162
VOICE Briefing Paper ‘The strengthening of EU crisis capabilities. What impact on humanitarian aid?’,
October 2006, pp 3, 10, 32.
163
European Union as a Global Partner, Commitment Appropriations, available at:
http://ec.europa.eu/echo/files/funding/budget/finances_2008_2013.pdf.
164
Council of the European Union, 14503/07, Brussels, 6 November 2007, “I/A” Item Note, Draft Joint
Statement by the Council and the Representatives of the Governments of the Member States meeting
within the Council, the European Parliament and the European Commission The European Consensus on
Humanitarian Aid, p 13, para 38.
165
(n 141) para 38.
166 (n 152) p 8.
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The procedure associated with drawing on funds from the EAR has also been criticised as being
too time-consuming as it requires a trilateral agreement between the Council, the Parliament
and the Commission. 167 However, it is unclear whether that requirement has actually hindered
the delivery of aid in practice, as the procedure has worked in numerous circumstances,
including the EU response to the tsunami of 2004. 168 A more fast-tracked procedure could
potentially decrease budgetary discipline.
There have also been general concerns expressed with regard to ECHO’s heavy emphasis on
paperwork, which sometimes leads to delays for interim and final payments of aid. 169
Specifically, paperwork has been viewed as impeding the effective use of staff in the delivery of
humanitarian aid. 170 This issue may have been partially addressed by the Framework Partnership
Agreement 2008 which provides for a more fast-tracked procedure for becoming a partner. 171
However, there has not as yet been an evaluation of its operation in practice. Part of the paper-
based nature of ECHO funding requires that funding be earmarked for specific situations. This
has been viewed somewhat negatively by Member States which would prefer otherwise. 172
VOICE, an organisation representing humanitarian aid NGOs, has also expressed concern 173 over
the fact that the Emergency Reserve is entirely dependent on voluntary contributions by
Member States. However, this claim appears to be unsubstantiated as the Reserve forms part of
167
H Versluys and J Orbie, ‘Theorizing EU Humanitarian Aid’, Paper prepared for the Third Pan-European
Conference on EU Politics 21 to 23 September 2006 – Istanbul, p 12.
168
VOICE Briefing Paper (n 162) pp 5-8. For the use during recent years see European Commission
Directorate General Humanitarian Aid - ECHO Financial Report 2007, p 41, available at:
http://ec.europa.eu/echo/files/funding/figures/financial_report2007.pdf#page=29.
169
U Daldrup et al for Consulting Worldwide, ‘Evaluation of the European Commission’s Directorate
General for Humanitarian Aid (DG ECHO) 2000 – 2005’, prepared 23 June 2006, p 6, available at
http://ec.europa.eu/echo/files/policies/evaluation/2006/dg_echo.pdf.
170
H Versluys and J Orbie (n 167) 8.
171
(n 131); see also, ‘The New FPA’ Annual Partner Conference, 10 December 2007
172 U Daldrup et al (n 169) 32.
173 ibid p 12.
64

the Commission’s budget in its Interinstitutional Agreement on budgetary discipline and sound
financial management. 174
Furthermore, as the EC’s humanitarian aid budget and those of its Member States represent the
biggest amount of humanitarian aid funding available in the world, co-ordination between those
involved in its delivery is necessary. However, co-ordination is currently not at its best levels. 175
Reasons of efficiency, credibility, capability aggregation and the avoidance of free-riding might
counsel in favour of delegating more power in this field to the EU. However, Member States may
be unwilling to cede their power in this realm, especially where they use humanitarian aid to
pursue foreign policy objectives. 176 However, some steps toward better co-ordination have been
made with the introduction in 2002 of the HOLIS 14 point application, an information-sharing
tool that ensures that information on humanitarian aid funding is available as soon as each
Member State or ECHO has confirmed a donation. Once a donation has been confirmed, the
donating body must complete a 14 point report which serves as the encoding document in the
new electronic application. 177
Application and Promotion of International Humanitarian and Human Rights Law
As discussed above, as a humanitarian aid donor obligated to respect the Principles of Good
Humanitarian Donorship, ECHO’s activity is to be based on and in support of humanitarian
principles and human rights law. However, in its efforts to abide by these principles, many issues
come into play; accordingly, this Report will focus on the following: (1) whether ECHO allocates
funding according to humanitarian principles; (2) whether ECHO selects its partners according to
the principle of non-discrimination; and (3) whether ECHO attempts to ensure compliance with
IHL and IHRL by its partners.
174
Interinstitutional Agreement on budgetary discipline and sound financial management, OJ 14.06.2006
(2006/C 139/01), at C 139/3 and C 139/4, heading E. This can also be read from the Council Regulation
(EC) No 1248/2007 of 22 October 2007 repealing Regulation (EC) No 2040/2000 on budgetary discipline.
175
U Daldrup et al (n 169) 20.
176
H Versluys and J Orbie (n 167) 5.
177
For more information, please see: http://ec.europa.eu/echo/funding/key_figures/ms_en.htm.
65

There has been concern that humanitarian aid is allocated and used to further foreign policy
aims and does not therefore strictly adhere to humanitarian principles. 178 Thus far, however, it
would seem that ECHO has withstood political pressure to politicize humanitarian aid. 179 ECHO
uses two instruments to prioritise its allocation of aid: the Global Needs Assessment (GNA) and
the Forgotten Crises Assessment (FCA). The Global Needs Assessment is conducted in two parts:
first, a survey of the most vulnerable countries is made to identify those places where
humanitarian needs are likely to be greater in the event of a disaster. Second, a crisis index is
made to assess those countries that are in a humanitarian crisis situation. The FCA attempts to
identify severe humanitarian crisis situations where affected populations are receiving little or no
international aid and where there is no political commitment to solve the crisis, due in part to a
lack of media interest. VOICE expressed concern that ECHO assistance was focused on these
forgotten crises and called upon a more balanced approach. 180 However, a study has shown that
EU Member States supported ECHO’s identification of forgotten crises and its allocation of
humanitarian aid to such crises. 181
For the most part, ECHO’s relationships with its partners has been viewed positively, although
there has been some negative comment concerning the high conditions that NGO’s must fulfil
in order to become a partner organization. 182 There has been praise for ECHO’s aid to smaller
NGO’s by financing the monitoring and auditing activities required so that they may become a
partner organization. 183 However, critics have claimed that the selection process favours those
partners that have previously worked with ECHO and consequently makes it difficult for new
178
VOICE Briefing Paper (n 162) 9.
179
H Versluys and J Orbie (n 167) 5-6, 26-7.
180
VOICE Briefing Paper (n 162) 13.
181
U Daldrup (n 169) 17.
182
ibid 28.
183
DG ECHO Annual Partners’ Conference, December 10, 2008, Brussels, Speaking notes of VOICE
President, Wolf-Dieter Eberwein, ‘Check against delivery’, p 2, available at:
http://www.ngovoice.org/documents/VOICE_President_Speaking_notes_2008.pdf.
66

partners to receive funding. 184 Furthermore, the nationality principle which requires partner
organizations to have the nationality of one of the Member States is also exclusionary and
discriminatory in nature. 185 Although the new Framework Partnership Agreement 2008 seems to
have relaxed the conditions for partnership and increased the likelihood that new organizations
can participate, 186 the nationality principle potentially could impede the effective delivery of aid
and should be re-evaluated.
Another criticism of ECHO lies in its dispute settlement procedure. Because the binding nature
of the partners’ obligation to adhere to IHL is unclear, it is possible that violations of IHL
continued unnoticed. Although one can assume that IHL is included in the wording of the FPA
which calls for compliance “applicable international law”, it is not clear. Furthermore, there is no
mechanism to ensure compliance by ECHO’s partners with international human rights law. It is
conceivable that the protection of human rights is ensured through the FPA in its discussion of
codes of conducts and best practices, but there should be an inclusion of explicit provisions for
protection. 187
Accountability
184
U Daldrup (n 169) 9-10. This is also implied by the reasons given to change the old Framework
Partnership Agreement, pp 4 and 7, available at:
http://ec.europa.eu/echo/files/about/actors/conferences/2007/echo_fpa2008_presentation.pdf.
185
Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid, art 7.1(a) reads:
“…be non-profit-making autonomous organizations in a Member State of the Community under the laws
in force in that Member State”.
186
FPA (n 138).
187
Article 3.1 (a) of the FPA 2008 (n 138): “The Parties undertake to develop jointly a quality partnership
based on: transparency and accountability towards the stakeholders. To this end, and as a complement to
legal and statutory provisions, the Parties will support and adhere to voluntary codes of good practices or
charters”. In addition, the General Conditions (n 158) contain the following clause in art 1.1: “The Action
shall be culturally appropriate, adequate for the needs of the affected persons and comply with applicable
international law and national legislation of the country where the Action is implemented.”
67

The Multi-Annual Financial Framework, which sets the annual upper limit for each aid area is the
result of an inter-institutional agreement between the Commission, the Council and
Parliament. 188 While this ensures accountability between institutions, it also means that the
funding allocation is a compromise and may consequently fail to supply enough money to
sufficiently address the crises. ECHO’s allocation and expenditure is audited annually by the
European Court of Auditors. 189 In its Report on the Budget in 2007, the Court of Auditors stated
that the margin of error for the Commission’s supervisory and control system was still too high,
despite recent improvements. 190 It also reported that the “majority of audits of expenditure
channelled through NGOs were done at headquarters level only, where not all aspects can be
checked.” 191 This was a problem previously cited in the 2006 Report which recommended on-
the-spot audits. 192 Although there had been an increase in audits after the 2006 Report, the
Court of Auditors was still not satisfied. In response, the Commission noted that if viewed “in the
context of an overall control strategy”, increasing the number of audits would not be cost-
effective. 193
ECHO evaluates the effectiveness of the humanitarian aid it finances based on principles of
sound financial management. One of the mechanisms it utilizes to ensure accountability is
impact assessment. Impact assessment is included in ECHO’s evaluation guidelines and
monitoring guidelines but in practice, the assessment is often poorly conducted. 194 In fact, there
188
European Commission, ‘How is the budget decided?’, at:
http://ec.europa.eu/budget/budget_glance/how_decided_en.htm.
189
European Commission, ‘How is the money accounted for and to whom?’, at:
http://ec.europa.eu/budget/budget_glance/how_accounted_en.htm.
190
European Court of Auditors, ‘Annual Report: The 2007 EU Budget’ (hereinafter ‘ECA 2007 Report’), p 6,
available at: http://eca.europa.eu/portal/pls/portal/docs/1/1569518.PDF.
191
ibid 24.
192
European Court of Auditors, ‘Annual report concerning the financial year 2006’, p 186, available at:
http://eca.europa.eu/portal/pls/portal/docs/1/479520.PDF.
193
ECA 2007 Report (n 190) 185, 187.
194
C Watson, ‘Impact Assessment of Humanitarian Response: A Review of the Literature’, Addis Ababa,
October 2008, Feinstein International Center, Impact Assessment of Innovative Humanitarian Projects in
Sub-Saharan Africa, The Feinstein International Center in Partnership with the Bill and Melinda Gates
68

is a “relative paucity of good statistics on outputs and outcomes by sector of intervention,
geographical region and type of beneficiary”. 195 It would seem that ECHO does not conduct an
impact assessment consistently once individual projects have concluded. 196 Some have argued
that the de-emphasis on impact assessment is due to the general debate about the
appropriateness and usefulness of such a tool in the sphere of humanitarian aid. 197 The debate
has triggered several private initiatives attempting to identify methods and guidelines for impact
assessment in the context of humanitarian aid. 198 Impact assessment seems to be much more
developed in relation to development aid and its structured approach could serve as an example
for humanitarian aid. 199 In that vein, in 2007, ECHO commissioned an Evaluation Guide which
explains the different methods of evaluation, including impact-related issues, and their
suitability for different situations, which demonstrates its commitment to internal evaluation and
finding suitable methods for doing so. 200
Relationships Among Institutions within the EU
Relations with the Member States
Foundation, pp 3-5; Monitoring Tools (n 159).
195 th
U Daldrup (n 169) 40; 24 ALNAP Biannual Meeting, 2-3 December 2008, hosted by the German
Foreign Ministry in Berlin, ‘Re-Thinking the Impact of Humanitarian Aid: Background Paper’, p 1, available
at: http://www.alnap.org/meetings/pdfs/24_background.pdf.
196
U Daldrup (n 169) 48.
197
‘Re-thinking the Impact of Humanitarian Aid: Background Paper for the 24th ALNAP Biannual’, pp 5-7,
available at: http://www.alnap.org/meetings/pdfs/24_background.pdf.
198
J Mitchell, ‘What are the Challenges and potential Benefits of Impact Assessment in the Humanitarian
Sector?’ Slide 5, at http://www.alnap.org/meetings/presentations/24_jmitchellday1.ppt.
199
European Parliament, P6_TA(2006)0382, ‘European Parliament resolution on more and better
cooperation: the 2006 EU aid effectiveness package’, which includes a list of Commission and Council
Communications on this issue in 2006. A study on aid effectiveness commissioned by the European
Commission was published in 2007: see A Rocha Menocal et al (for the Overseas Development Institute),
‘How effective is EU aid on the ground? A comparative assessment of EU assistance in Cambodia,
Mozambique and Peru, and lessons learned’ (Synthesis Report) September 2007, available at:
http://www.odi.org.uk/PPPG/cape/publications/p0483_final_report.pdf.
200
Available at: http://ec.europa.eu/echo/policies/evaluation/thematic_en.htm.
69

Because humanitarian aid is a parallel competence and Member States may pursue their own
humanitarian aid policy, co-ordination and information sharing are key. However, it seems that
the main problem between ECHO and the Member States in recent years has been a lack of
both. 201 Council Regulation (EC) 1257/96 of 20 June 1996 mandates ECHO to co-ordinate
humanitarian aid policy, but until recently, only information sharing has been institutionalized. 202
There have been concerns voiced surrounding duplicate action in relation to the same crisis and
the lack of co-ordination regarding funding towards NGOs. 203 Information sharing between the
Commission and the Member States is conducted via the Humanitarian Aid Committee (HAC)
which is rooted in Article 16 and 17 of Regulation 1257/96 that established a committee to
“discuss guidelines presented by the Commission for humanitarian aid.” The HAC is led by a
member of the Commission and composed of representatives from each Member State. The
HAC is asked to give its opinion on ECHO’s annual plan for aid and is also notified of any plans
ECHO has for evaluating aid. 204 However, problems may still arise as information-sharing
between ECHO and the Member States is not obligatory, and when information is shared,
Member States often have a different understanding of what constitutes ‘humanitarian aid’. 205
The Commission may want to consider making the obligation to share information legally
binding on the Member States so that funding information is automatically entered into the
HOLIS 14 point database. A set of guidelines to aid in the interpretation of key terms would
enable harmonization across the EU.
Relations with other Institutions
201 U Daldrup (n 169) 6-7, 16-8.
202 Article 10.1 states: “In order to guarantee and enhance the effectiveness and consistency of Community
and national humanitarian aid systems, the Commission may take any measure necessary to promote
close coordination between its own activities and those of the Member States, both at decision-making
level and on the ground. To that end, the Member States and the Commission shall operate a system for
exchange of information.”
203 ibid 15-6, 21.
204 U Daldrup (n 169) 15; Manual for the Evaluation of Humanitarian Aid, available at:
http://www.reliefweb.int/library/documents/2001/echo-manual-1999.pdf.
205 U Daldrup (n 169) 16.
70

Although within the Council the remit of the already-existing Working Party on Food Aid has
been extended to cover Humanitarian Aid 206 , there is as yet no institutionalized body for
deliberation on humanitarian aid at Parliament, despite calls for its establishment. 207 Parliament’s
general development committee currently puts humanitarian aid on its agenda when it deems it
appropriate to do so. However, in 2006, Parliament created the position of Standing Rapporteur
for Humanitarian Aid whose task is to maintain humanitarian aid budgetary interests and
monitor the implementation of Community aid programmes. 208 ECHO insists that it has
established a “solid working relationship” with the Rapporteur since its inception. 209 Whatever
the nature of the relationship, it is important that ECHO establishes itself firmly across all
institutions to support its work and increase its general visibility. 210
Internal Relationships
ECHO is not the only directorate general (DG) responsible for policy definition and the
implementation of external aid: with it are DG EuropeAid, DG Environment, and DG RELEX
(External Relations). At their inception, their mandates were closely linked and ill-defined so that
confusion was a common complication. A previous unsuccessful Memorandum of
Understanding between DG Environment and ECHO has been replaced by the new
Memorandum on coordination in disaster response which incorporates best practice from
206
As of 1 January 2009: Council of the European Union, Brussels, 28 April 2009, 8367/08, “I” Item Note,
Extension of the mandate of the Working Party on Food Aid to become the Working Party on
Humanitarian Aid and Food Aid, available at:
http://register.consilium.europa.eu/pdf/en/08/st08/st08367.en08.pdf; Council of the European Union,
Brussels, 13 June 2008, 10612/08, “I/A” Item Note, Stocktaking report: Measures to increase the
effectiveness, coherence and visibility of EU external policies, p 6, available at:
http://register.consilium.europa.eu/pdf/en/08/st10/st10612.en08.pdf
207
U Daldrup (n 169) 7, 18.
208
For more information, please see the European Parliament’s website:
http://www.europarl.europa.eu/parliament/expert/displayFtu.do?language=en&id=74&ftuId=FTU_6.5.3.ht
ml.
209
Report from the Commission ECHO 2007 Annual Report COM(2008) 449 final 12.
210 This is supported by U Daldrup (n 169) 18.
71

previous disaster response programmes and applies to DG RELEX as well. 211 It is not yet clear
whether co-ordination has benefited from this in practice, but it is certainly a positive step
toward better co-ordination.
A similar problem has occurred in relation to co-ordination of humanitarian aid with
development aid. A framework against which the two might operate has been introduced as
Linking Relief, Rehabilitation and Development (LRRD) and is part of ECHO’s operational
strategy for 2009. 212 However, there is concern that linking humanitarian aid to development aid
might risk the possibility of humanitarian aid being tainted with policies not necessarily
consistent with humanitarian principles such as neutrality and independence, especially in cases
of civil-military co-operation where it may be hard to distinguish humanitarian aid workers from
other personnel. 213
Communication and Visibility
The main issue regarding communication is the fact that there is no single entry point at EU-
level for external relations that external partners can utilize to maintain coherence and co-
ordination of the different competences and mandates of the relevant EU organs. This was
specifically cited as a problem in the context of UN requests to support humanitarian action in
civil-military co-operation. 214 The Treaty of Lisbon provides a potential solution to this problem
by making the High Representative for CFSP part of the Commission as well and thus providing
a single entry point for these issues. 215
211 The authors were unable to locate a copy of the memorandum itself, but information is available on it
in the Annex to the Report from the Commission to the Council on the follow-up to 2005 Discharge
Decisions, Council Recommendations, COM(2007) 537 final para 79, available at:
http://www.europarl.europa.eu/comparl/cont/adopt/discharge/2006/follow/com_sec(2007)1186_en.pdf.
212 VOICE Briefing Paper (n 162) 20; Commission Staff Working Document - Directorate-General for
Humanitarian
Aid - ECHO - Operational Strategy 2009, 16277/08 p 21.
213 VOICE Briefing Paper, ibid, 27.
214 ibid.
215 Art 18 s 4 TEU (Consolidated Version).
72

ECHO has a strong visibility policy which has resulted in the development of visibility
guidelines 216 for its external partners and the insertion of a visibility clause 217 into contracts with
them. While this is positive, ECHO has neglected visibility among the general public which is
mostly unaware of the work that ECHO does in funding humanitarian aid. 218 Furthermore, it has
been suggested in a study that its visibility policy toward external partners is too stringent and
also unclear. 219 The same study recommended a revision of visibility guidelines to make them
more practical in nature. 220 This was conducted in 2008, but no new assessment has been made
at the time of writing. 221
Comments
The EU has clearly demonstrated its commitment to funding humanitarian aid programmes and
initiatives intended to ensure cohesion, effectiveness and efficiency in the delivery of
humanitarian aid. The European Consensus demonstrates a pragmatic and realistic approach to
funding which will hopefully provide a strong framework that will be supported by the
Commission’s Action Plan. However, there are still many issues that ECHO has to tackle to
ensure the efficient delivery of aid. While it has made several improvements already, issues of
co-ordination, communication, funding and accountability need addressing by enduring
solutions based on past practice.
216 European Commission Humanitarian Aid Directorate-General, Guidelines for partners – revised version
September 2006, ‘Information and Communication, A Partnership for Communication, Guidelines for the
Commission’s partners on the implementation of visibility, information and communication activities
relating to humanitarian aid’, available at: http://ec.europa.eu/echo/files/about/actors/guidelinesngo_en.pdf.
217 FPA (n 138) 8: “3.2 The Humanitarian Organisation commits to highlight the Community nature of the
humanitarian aid and to promote the understanding of humanitarian values, in particular in the European
Union and in third countries where the Community funds major Actions.”
218 G White, M Kitchener and C Mertens, ‘Evaluation of Communication, Information and Visibility Actions
in Humanitarian Aid Evaluation Report’ (November 2007) 5; U Daldrup (n 169) 41-2.
219 G White et al, ibid, 4-6.
220 ibid.
221 ECHO Operational Strategy (n 212) 25-6.
73

VI. The EU and its Treatment of IHL and IHRL
Supporting International Treaties
EU action to promote IHL is normally taken at the Member State level; however, the EU has itself
contributed to its support in relation to a selection of international treaties. This support can be
divided into four categories: (1) developing Guidelines to implement treaties and promote
compliance with IHL; (2) publishing Action Strategies; (3) funding relevant projects; and (4)
making statements. Because most of these are discussed elsewhere in this report, this section
will focus on EU action with respect to action taken by the EU with respect to IHL treaties. 222
The EC has long been aware and active in the alleviation of the problem of anti-personnel
landmines and explosive remnants of war, even before the adoption of the Convention on the
Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their
Destruction (also known as the Ottawa Convention) in 1997. In 1996 it committed itself to the
total elimination of all mines and to resolve related socio-economic issues. 223 Although EC
action was originally restricted to de-mining, it has since evolved into including mine risk
education, victim assistance and rehabilitation. Regarding the Convention, all Member States
except Finland and Poland are parties and the EC has observer status. The European
Commission has taken the lead with regard to implementation of the Convention and continues
to encourage those countries who are not yet parties to the Convention to acceded to it. As part
222 The EU has formed Action Strategies or Action Plans in respect to the Convention on the Rights of the
Child, which is discussed in Part VI below regarding ‘Special Interest Groups’. See also Part VI,
‘Agreements with Non-EU Member States’ and ‘Treatment of Violations’ regarding political statements
made in its relations with third countries; and Part V, ‘Funding and Assistance’, concerning ECHO and its
humanitarian aid programme. Similarly the EU’s involvement with the ICC and its promotion of the Rome
Statute is discussed in Part VI, ‘Supporting International Institutions’.
223 European Commission, ‘Guidelines on European Community Mine Action 2008-2013’, Brussels,
24.11.2008, SEC(2008) 2913, available at:
http://ec.europa.eu/external_relations/anti_landmines/docs/mine_action_en.pdf.
75

of its support, the Council adopted Joint Action 2008/487/CFSP in support of the
universalisation and implementation of the 1997 Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction which
sets forth the following objectives in Article 1: (a) promotion of the universalisation of the
Convention and support for the preparation of the Second Review Conference of the
Convention in 2009, and (b) support for full implementation of the Convention by States Parties.
The Commission’s internal Guidelines which are cited above also include an assessment of needs
and a practical response based upon the assessment. The survey concludes that a three-step
approach is necessary in relation to mine clearance: (1) the inclusion of anti-personnel mine
language in Country and Regional Strategy Papers and National Indicative Programmes; (2) the
incorporation of mine action components in broader EC programmes; and (3) effective reporting
in relation to mine programmes or projects.
Similarly, the EU has taken steps to promote the adoption of the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons and their
Destruction (also known as the Chemical Weapons Convention) by countries who have not yet
done so in order to pursue its objective of the “implementation of the universalisation of the
existing disarmament and non-proliferation norms”. 224 In 2007, the Council adopted Joint Action
2007/185/CFSP on support for the [Organisation for the Proliferation of Chemical Weapons]
OPCW activities in the framework of the implementation of the EU Strategy against Proliferation
of Weapons of Mass Destruction which sets the following four objectives: (1) promotion of the
universality of the Chemical Weapons Convention; (2) support for full implementation of the
Chemical Weapons Convention by the signatory States; (3) cooperation in the field of chemical
activities, accompanying the implementation of the Chemical Weapons Convention; and (4)
224 Council, ‘Fight against the proliferation of weapons of mass destruction – EU strategy against
proliferation of Weapons of Mass Destruction’, 10 Dec 2003. That same year, the Council adopted
Common Position 2003/805/CFSP on the universalisation and reinforcement of multilateral agreements in
the field of non-proliferation of weapons of mass destruction and means of delivery which promoted the
ratification of several treaties cited in the Strategy, including the Chemical Weapons Convention, the Nonproliferation
Treaty and the Biological and Toxic Weapons Convention.
76

support for the creation of a collaborative framework between the chemical industry, the OPCW
and national authorities.
The EU has also adopted a Joint Action in support of the Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on their Destruction (1972). 225 Known as the BTWC in the context of the EU, the Joint Action is
aimed at promoting the universality of the BTWC and providing support to States Parties to aid
in its implementation. 226 In 2006, the Council adopted the EU Action Plan on biological and toxin
weapons, complementary to the EU Joint Action in support of the BTWC 227 which consists of two
measures: the first is focused on the efficient use of Confidence Building Measures which will be
used to ensure the Member States’ fulfilment of the objectives of the BTWC; the second is in aid
of enhancing the effectiveness of the UN’s dedicated mechanism for investigating allegations of
use of BTWs. In 2006, the Council adopted a Common Position relating to the sixth review of the
BTWC 228 which included goals such as conducting a full review of the implementation of the
BTWC and holding a review conference in 2011. The BTWC is also cited in the EU’s Strategy
against the Proliferation of Weapons of Mass Destruction, cited above.
With regard to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to have
Indiscriminate Effects (CCW), the EU has stated its support on numerous occasions and has been
enthusiastic regarding its support for the UN’s Plan of Action to promote Universality of the
225
Council Joint Action 2006/184/CFSP in support of the Biological and Toxin Weapons Convention, in the
framework of the EU Strategy against the Proliferation of Weapons of Mass Destruction, available at:
http://www.euja-btwc.eu/files/20060227%20EU%20Joint%20Action_0.pdf.
226
ibid art 1.
227
2006/C 57/01.
228
Council Common Position 2006/242/CFSP relating to the 2006 Review Conference of the Biological and
Toxin Weapons Convention (BTWC), available at: http://www.eujabtwc.eu/files/20060320%20EU%20EU%20Common%20Position%20BTWC%206RecCon.pdf.
77

CCW. 229 EU representatives have stated on numerous occasions their concern regarding cluster
munitions and have noted the intent to finalize a legally-binding instrument addressing the
humanitarian concerns of cluster munitions and prohibiting their use, production, transfer and
stockpiling by the end of 2008. 230 In 2007, the Council adopted Joint Action 2007/528/CFSP in
support of the Convention. 231 The Joint Action is explicit EU support for the UN Plan of Action
and includes the following objectives: (i) promotion of the universality of the CCW and its
annexed protocols, and (ii) support to the implementation of the CCW by States Parties. Initial
support by the EU consists of 250,000 € to the Sponsorship Programme created at the third
review conference of the CCW.
The European Security Strategy also highlights the importance of the Treaty on the Non-
proliferation of Nuclear Weapons (NPT) which entered into force in 1970, and has long been
engaged in initiatives with regard to its implementation and review. In fact, the 1957 Treaty
establishing the European Atomic Energy Community (Euratom) had already established
European safeguards in relation to nuclear proliferation ten years before the NPT was opened
for signature. 232 In 2005, the Council adopted a Common Position relating to the 2005 Review
Conference of the parties to the NPT. 233 In the Common Position, the Council states that “[t]he
European Union continues to regard the [NPT] as the cornerstone of the global nuclear non-
proliferation regime”. 234 The Common Position is aimed at strengthening the international non-
229
Available at: http://www.wilpf.int.ch/disarmament/CCW/documents/Universalization.pdf.
230
Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons which may be deemed to be excessively injurious or to have
indiscriminate effects (CCW), Statement by Mr. José Júlio Pereira Gomes, Head of the Portuguese
Delegation, on behalf of the European Union, available at: http://www.delegfrance-cdgeneve.org/declarations/unioneuropeenne/07112007general_statement.doc.
231
Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:194:0011:0017:EN:PDF/.
232
Euratom Treaty, Chapter 7.
233
Council Common Position 2005/329/PESC relating to the 2005 Review Conference of the Parties to the
Treaty on the Non-Proliferation of Nuclear Weapons. This Common Position is an update to the previous
and similar Common Position 2000/297/CFSP relating to the 2000 Review Conference of the Parties to the
Treaty on the Non-Proliferation of Nuclear Weapons.
234
ibid Recital 1.
78

proliferation regime through a comprehensive review of the operation of the NPT and by
helping to build international consensus on the matter. Most recently, the European Parliament
has adopted a Resolution concerning the NPT in view of the upcoming 2010 Review
Conference. 235 The recommendations therein include a review and update of the 2005 Common
Position and various efforts to achieve total nuclear disarmament, including financial support for
the creation of a nuclear fuel bank under the control of the International Atomic Energy
Agency. 236 Similarly, the EU has shown its support for the Comprehensive Nuclear Test Ban
Treaty (CTBT) through the adoption of joint actions relating specifically to the CTBT’s monitoring
and verification organization and calling for the early entry into force of the CTBT. 237
The EU has also been instrumental in the recent adoption of the Convention banning the use,
production, transfer and stockpiling of cluster munitions that cause unacceptable harm to
civilians (Cluster Munitions Convention) which was opened for signature in 2008. The
Convention enters into force six months after 30 states have ratified it. Currently, there are 10
ratifications, including three EU Member States, but 21 Member States have signed. Benita
Ferrero-Waldner, Commissioner for External Relations and Neighbourhood Policy has stated
that, “A world without cluster munitions is our ultimate goal and this Convention is a milestone
on this path. I call on all countries to swiftly sign and ratify this important convention so it can
enter into force. It goes without saying that the European Commission will continue its work to
235 European Parliament recommendation to the Council of 24 April 2009 on non-proliferation and the
future of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) (2008/2324(INI)).
236 2005 Common Position (n 233) para Q1. The Council also adopted Joint Action 2004/495/CFSP on
support for IAEA activities under its Nuclear Security Programme and in the framework of the
implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction which pledges
overall support for the activities of the IAEA.
237 Joint Action 2008/588/CFSP on support for activities of the Preparatory Commission of the
Comprehensive Nuclear-Test-Ban Treaty Organisation (CTBTO) in order to strengthen its monitoring and
verification capabilities and in the framework of the implementation of the EU Strategy against
Proliferation of Weapons of
Mass Destruction; Joint Action 2006/243/CFSP on support for activities of the Preparatory Commission of
the Comprehensive Nuclear-Test-Ban Treaty Organisation (CTBTO) in the area of training and capacity
building for verification and in the framework of the implementation of the EU Strategy against
Proliferation of Weapons of Mass Destruction.
79

assist countries and populations affected by cluster munitions through de-mining, mine risk
education and victim assistance programmes.” 238
Contributions to developments in IHL and IHRL
The EU Approach
An Incremental Approach
Similarly to the building of the European Union itself, the integration of international
humanitarian law has been incremental. At the time of the European Political Cooperation, any
position taken with regard to a conflict situation was hardly referring to international
humanitarian law, but to the more general area of human rights. 239 The Union is not, and cannot
at present become a party to international humanitarian law treaties. However, many rules of
international humanitarian law are reflected in rules of customary international law, and as such
to the extent they are applicable, will bind the EU. 240
The familiarisation of the EU with international humanitarian law initially occurred through
declaratory acts – it was a necessary pre-requisite for the Geneva instruments to be included in
the binding instruments of the CFSP. 241 The conflict in the Former Yugoslavia and the Gulf crisis
acted as a catalyst pointing to international humanitarian law: the geographic proximity of the
Union to the Yugoslav conflict and the participation of its Member States in the operation
238
Europa Rapid Press Release, ‘Convention to ban cluster munitions opened for signature’, 4 December
2008.
239
T Ferraro, ‘Le Droit International Humanitaire dans la politique étrangère de sécurité commune de
l’Union Européenne, International Review of the Red Cross, June 2002, Vol 84 no486, p435.
240
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICL Rep (1949)
174 at 178-9. See discussion on the legal personality in this report.
241 ibid.
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‘Desert Storm’ channeled a direct interest in the area leading to an increasing integration of
international humanitarian law in the European diplomacy. 242
Indeed, since 1990, one has to notice the increase of references to the Geneva Conventions. For
example, when the Union makes a statement on an internal or international conflict, it almost
always refers to international humanitarian law as a ‘mean and aim’. The Declaration of 12
August 1999 on the fiftieth anniversary of the Geneva Conventions 243 made official the interest
of the Union in international humanitarian law and states that these Conventions are not
instruments among others, that they do not constitute simples references used to corroborate a
declaratory action, but that they on the contrary constitute a minimum legal standard to be
respected by all parties. 244 Along with the multiplication of the references to the Geneva
Conventions, one can notice the ever-growing indirect use of international humanitarian law via
references of basic principles of the Geneva Conventions 245 : prohibition of certain practices
during war causing unnecessary suffering, respect of civilian population 246 , proportionality of the
attack 247 , distinction between civilian and military objectives…. 248 The conflicts in Chechnya,
Afghanistan, in the Great Lakes region, in Sierra Leone and in the Philippines enabled the Union
in its declaratory policy to develop some clauses de style (style conventions) in which it
condemns grave violations of human rights and international humanitarian law and call for the
respect of these instruments. For example, one could cite the Declaration of the Presidency on
the peace process in Colombia which demands all parties to end violence and to respect human
rights and international humanitarian law. 249 As well as these general references to international
242
T Ferraro (n 239) 438, Declaration on the Gulf Crisis, Rome European Council, Presidency Conclusions,
Annex II, Bulletin of the European Communities, 10-1990, p. 13 ; Common Declaration on the Gulf Crisis,
22/1/1991.
243
Presidency Declaration 12 August 1999 on the Geneva Conventions, BUE 7/8-1999
244
T Ferraro (n 239) 440.
245
ibid 440.
246
Declaration of 25/7/1990 on Liberia, BEU, 7/8-1990, pT 1.5.5, p127.
247
Declaration of 27/10/1991 on Dubrovnik, BEU 10-1991, pT 1.4.15, p96.
248
Declaration of 29/5/1993 on the situation in Bosnia Herzegovina, BEU 5-1993, pT 1.4.6, p 58
249 Declaration of 19/1/2001, BEU 1/2-2001, pT 1.6.17.
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humanitarian law, the Union also frequently refers to the Geneva Conventions and their
Additional Protocols thereto 250 or to a specific aspect of international humanitarian law. For
instance, it has underlined that the responsibility of authors of severe infractions shall be
engaged 251 , that the principles of proportionality and distinction shall be respected 252 , that
reprisals against civilians are prohibited 253 , that the IV Geneva Convention is applicable for a
better protection of civilians in an occupied territory 254 , that humanitarian aid shall be delivered
without any obstacle 255 and that respect for the civilian population should be enforced in any
circumstances 256 .
In other words, the EU’s declaratory law, by insisting on the essential provisions of the Geneva
Conventions applicable to armed conflicts, contributes to the movement started by the ICJ
aiming at extracting general principles of international humanitarian law of which importance is
such as they impose themselves even outside a contractual relationship; 257 confirming the
opinion of C. Dominicé, according to whom the reaffirmation of the value of general principles
in declarations consolidates their authority; we can even acknowledge that the formation of
certain fundamental principles owes much to their consecration via instruments with no legal
binding effect, but which are largely adopted. 258
250
T Ferraro (n 239) 442.
251
Declaration of 25/3/1999 of the European Council of Berlin on Kosovo, Presidency Conclusions, BEU 3-
1999, Part III, p. 23
252
Declaration of the European Council of Helsinki on Chechnya of 11/12/1999, Presidency Conclusions,
Annex II,BEU 12-1999, p17.
253
Declaration of 4/5/1995 Croatia, BEU 5-1995, pT 1.4.7, p58.
254
Declaration on the territories occupied by Israel of 1/10/1996, BEU 10-1996, pT 1.4.13, p76.
255
Declaration on Chechnya of 15/4/1995, BEU 4-1995, pT 1.4.15, p62.
256
Declaration of 11/2/1999 on Ethiopia/ Eritrea, BEU 1/2-1999, pT 1.4.11, p104.
257
R Abi-Saab, ‘Les Principes Generaux de Droit Humanitaire selon la CIJ’, IRRC, July –August 1987, no 766,
pp381-389, in T Ferraro, op.cit
258
‘La réaffirmation de [la] valeur [des principes généraux] dans des déclarations est susceptible de
consolider leur autorité, et l’on doit même constater que la formation de certains principes fondamentaux
doit beaucoup à la consécration dont ils ont été l’objet dans des instruments dépourvus d’autorité juridique
mais largement adoptés.’ C. Dominicé, ‘Valeur et autorité des actes des Organisations internationales’,
Manuel sur les Organisations internationales, R J Dupuy (sous la direction de), Académie de droit
international de La Haye, M Nijhoff Publishers Dordrecht 1998, p.458, in T Ferraro, ibid, p446.
82

The Integration of International Humanitarian Law in CFSP Instruments
In spite of the fact that soft law has played an important role in the integration of the Union of
international humanitarian law, the EU also uses its binding instruments to promote it. 259 In
effect, the Union, in some of its Common Positions used direct or indirect references to
international humanitarian law. In its 1995 Common Position concerning blinding lasers, the
Union makes an indirect reference to international humanitarian law by considering them as
excessively injurious and having indiscriminate effects – this is indeed an indirect reference to
article 35-2, 36 and 48 of the Additional Protocol I. 260 By stating that ‘the adoption of an
additional protocol to the 1980 Convention concerning blinding lasers which satisfies the
humanitarian concern to avoid unnecessary suffering without limiting the legitimate military use
of lasers’ 261 , the Union contributes to the application of new legal instruments and confirms the
cardinal principle according to which parties to an armed conflict do not benefit from an
unlimited right to chose the means to conduct hostilities. 262
Beside these indirect references, some Common Positions directly mention international
humanitarian law. During the Great Lakes conflicts and after having encouraged the
criminalisation of infractions committed in non international armed conflicts, the European
Union adopted new Common Positions whereby it defined its objectives and priorities in its
relationship with Rwanda – that is to encourage the process started by the Rwandese
government to encourage national reconciliation as well promoting human right and
fundamental liberties. 263 To fulfil these objectives, the Council encouraged Rwanda as well as the
259
T Ferraro (n 239) 446.
260
Common Position 95/379 concerning blinding lasers.
261
ibid pt 1.
262
T Ferraro (n 239) 451.
263
Common Positions 2005/558/CFSP and 2001/799/CFSP.
83

other parties involved in the conflict in RDC to respect their obligations deriving from
international humanitarian law. 264
Article 3.b of Common Position 2000/558/CFSP provides that the Union “considers it most
important that the Rwandan troops present in the DRC and the other warring parties should
abide by their obligations under international humanitarian law and in connection with the
protection of human rights.”
Article 4.c provides that the Union ‘supports the work of the International Criminal Tribunal in
Arusha, and in particular renews its efforts to ensure that all States surrender to the Tribunal all
those indicted by it for genocide and other serious violations of international humanitarian law.
It shall seek continued improvement of the Tribunal's administrative effectiveness.’
More recently, in Afghanistan, the Union, since 1998, affirmed the necessity to promote
international humanitarian law in this conflict. 265
Similarly, the Council adopted on 11 June 2001 a Common Position concerning the International
Criminal Court 266 whereby it affirmed that the establishment of the ICC constitutes an essential
means to promote respect for international humanitarian law and that it will support the
effective functioning of the Court as well as advancing universal support for it by promoting the
widest possible participation in the Rome Statute. It will make every effort to further this process
by raising the issue of the widest possible ratification, acceptance, approval or accession to the
Statute and the implementation of the Statute in negotiations or political dialogues with third
States, groups of States or relevant regional organisations, whenever appropriate.
264 T Ferraro (n 239) 452.
265 Common Position 1998/108/CFSP.
266 Common Position 2001/443/CFSP.
84

As far as Joint Actions are concerned, one can cite the European Union's contribution to
combating the destabilising accumulation and spread of small arms and light weapons. 267
Considering that an action in this field would contribute to enhance the respect of human rights
and international humanitarian law the Union shall provide financial and technical assistance to
programmes and projects which make a direct and identifiable contribution to the prevention of
accumulation and spread of small arms. To that end, Article 6.2 of the Joint Action further
provides that in providing such assistance, the EU shall take into account in particular the
recipient's commitments to comply with the principles mentioned in Article 3; their respect of
human rights; their compliance with international humanitarian law and the protection of the
rule of law; and their compliance with their international commitments, in particular with regard
to existing peace treaties and international arms control agreements.
International humanitarian law is therefore placed as an element of conditionality but also
voluntarily distinguished from other international commitments to stress its specificity. 268
In another spirit, the Union can also adopt negatives measures to express its disapprobation
towards for example the political behavior of a third State. 269 These negatives measures, either
autonomous or applying a UN Security Council Resolution, are based on Common Positions,
then implemented by first pillar Regulations imposing sanctions. 270 For example, Common
Position 98/426 concerning a ban on flights of Yugoslav carriers between the Federal Republic
of Yugoslavia and the European Community needed the adoption of a first pillar Regulation to
be effectively implemented. 271 These negative measures can either be implemented by the
267 Joint Action of 17 December 1998 adopted by the Council on the basis of Article J.3 of the Treaty on
European Union on the European Union's contribution to combating the destabilising accumulation and
spread of small arms and light weapons (1999/34/CFSP).
268 T Ferraro (n 239) 455.
269 E Neframi, ‘La Politique Etrangère et de Sécurité Commune et l’Identité de l’Union Européenne’,
Annuaire Français de Droit International, no 50, 2004, p 826.
270 ibid 840
271 Regulation 1901/98 CFSP.
85

Community or by Member States when they for example concern the delivery of visas. They can
also be accompanied by positive measures, such as the common position supporting the
opponents of President Milosevic. 272
One can also assess the EU action from a different perspective; that is when the Union, especially
the European Parliament via resolutions, takes position on a situation and calls for actions on
various actors.
Call for Actions
Non-conflict states: Calling on Member States to act
The European Parliament has relied on principles of international human rights law and
international humanitarian law when calling on other States to act in a punitive way towards a
state in violation of these laws. For example, the EP passed a resolution in 1996 condemning
numerous violations of HRL by the Taliban in Afghanistan. It called upon all international aid
donors, including the EU and its Member States, to freeze all new aid and cooperation
programmes, except for emergency assistance, until the basic rights of men and women came to
be respected by the authorities. 273 In a later resolution condemning human rights violations of
the Taliban regime, Parliament called upon the EU Council to isolate the Taliban regime
diplomatically and urged the Commission to take necessary emergency humanitarian
measures. 274
Resolutions may also focus on specific groups suffering discrimination. In relation to women’s
rights in Afghanistan, for example, a Parliament resolution in 1998 condemned all human rights
violations of the Taliban and expressed solidarity with Afghani women. The Resolution called
upon the Commission and Council to carry out urgent appraisal of the situation of women in
272 Common Position 1999/691/CFSP
273 Parliament Resolution, EU Bulletin 10 Point 1.2.1
274 Parliament Resolution, 30/11/2000, EU Bulletin 11 Point 1.6.71
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Afghanistan, showing support for a Council Common Position 275 . It also called upon nations
which had recognised the Taliban to withdraw support and ensure that issues of human rights
violations remain on the international agenda. 276
States in conflict: Condemnation and calling for action
The EU Parliament has issued resolutions calling for the protection of international humanitarian
law and international human rights law in states where there is continuing internal or
international conflict.
In relation to the conflict in Somalia, for instance, Parliament condemned 277 the actions of both
the Sudanese government and the Janjaweed militia, calling for respect for international law and
increased co-ordination in the provision of humanitarian aid. In doing so, the Parliament also
[…] recalled its commitment against the abusive use of Sharia law, certain elements of
which were contrary to international law, and expressed concern at the situation as
regards women’s rights.
The EU was also extremely active in relation to the democratic development of the state of
Georgia, and the conflict in 2008. For example, Parliament passed a resolution in June 2008
which called on Russia to revoke its decision to send additional forces to Georgian territory
which it considered to undermine the international peace efforts in which Russia was also taking
part. 278 It also called on the Council and the Commission to raise the issue of the disputed
region of Abkhazia and South Ossetia with their Russian counterparts at the forthcoming EU-
275
Common Position 98/108/CFSP of 6 February 1998 on Afghanistan OJ L 32, 6.2.1998
276
Parliament Resolution, OJ C 80 16.3.1998
277
Parliament Resolution EU Bulletin, 1.6.138
278
European Parliament resolution of 5 June 2008 on the situation in Georgia , Article 5, available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-
0253+0+DOC+XML+V0//EN
87

Russia summit, recognising that the Russian troops had lost their role of neutral and impartial
peacekeepers. 279
The EU also has adopted Parliamentary resolutions in relation to transitional states. These
resolutions generally have an aim of influencing transition to a democratic state which respects
human rights. For example in 2001 Parliament passed a resolution 280 calling for women’s rights
to be fully guaranteed by the new constitution in Afghanistan. This resolution also welcomed the
agreement resulting from UN talks that there would be at least two female members of the
transitional government, including one as deputy prime minister, and that there was a plan afoot
to establish a Ministry for Women’s Affairs within the new government. A later resolution passed
in 2003 281 again called upon the transitioning state to publicly deal with human rights problems,
particularly targeting regional leaders, and again called for regional leaders to be pressured to
repeal restrictions against women.
Resolutions also call on states which are not an EU member. A Parliament resolution passed in
2002, 282 for example, called on Myanmar’s Asian neighbours to condemn human rights abuses
occurring in the country.
Regarding the transitioning state of Kosovo, the EU Parliament supported the UN special envoy
of the Secretary General in planning for the future of Kosovo as a sovereign state under the
supervision of the international community. It did, however, resolve 283 that for a sustainable
settlement Kosovo must, amongst other things, have support in order to secure the
development of effective, self-sustaining institutions for the entire population of Kosovo,
operating in accordance with the rule of law and the basic ground-rules of democracy. In this
279 ibid Article 8.
280 Parliament Resolution, 13/12/2001, EU Bulletin 12 Point 1.2.5
281 Parliament Resolution, 15/01/03 EU Bulletin ½ Point 1.6.144
282 Parliament Resolution 11/04/2002 OJ C 87 E 11.4.2002
283 Parliament Resolution 29/03/2007 EU Bulletin 3 2007 Point 1.26.6
88

esolution the Parliament also noted that any action in relation to Kosovo must be in accordance
with international law.
Calling on the UN to act
In addition to calling on Member States, and states outside the EU, to support and comply with
resolutions passed on the basis of a breach of human rights law, the EU Parliament also calls
directly on the UN to act.
For example, in response to the deteriorating situation in Darfur, the Parliament called upon the
UN Security Council to extend the arms embargo in Darfur throughout Sudan. 284 It also called
on the Security Council to support the African Union’s efforts in Darfur to reach full operational
capacity and to robustly interpret its mandate to protect civilian until a transition to a UN
mission.
In the case of Myanmar, a Parliament resolution called on the UN Human Rights Commissioner
to send permanent observers to the country to investigate the human rights situation in the
areas inhabited by the oppressed minorities in the region, and to investigate the atrocities
allegedly committed by the Burmese government. 285
The various institutions of the EU also call on each other to act in relation to particular situations,
or criticise another body’s action, or inaction, as the case may be, particularly in case of
disagreements as to how to respond to a crisis. This dysfunctional approach is illustrated by the
EU’s response to Zimbabwe. The Parliament condemned the lack of coherence in EU policy in a
resolution in 2003, 286 and called upon the Council and the Member States not to seek
exemptions from the Union's sanctions regime. It further called on the Council and Commission
284 Parliament Resolution, EU Bulletin 4-2006, 1.33.43
285 Parliament Resolution, 18/07/1998, EU Bulletin 7/8 1998 1.2.4
286 Parliament Resolution, 13/02/2003
89

to extend the existing sanctions, to impose sanctions on those business people responsible for
financing the regime, and to provide more information on the freezing of the bank accounts of
those subject to EU sanctions. The Parliament called for additional measures to be taken,
including cancellation of visas and rights of residence. It also advocated elections organised
under international supervision and meeting international standards. Condemning the utilisation
of food aid as a political weapon against opposition supporters, Parliament also called upon the
United Nations to appoint a Special Rapporteur to investigate the human rights situation in
Zimbabwe. The EU Parliament has also called for clarification on questions of international
humanitarian law. In recent times Parliament called for clarification on the status of detainees at
Guantanamo Bay. 287
Comments
The EU’s promotion of international humanitarian law and international human rights law has
been incremental and polymorph. It first started via EU diplomacy and political statements
before being expressly mentioned in CFSP instruments, or in EP Resolutions calling for actions.
The progressive integration of the Geneva Conventions as a recurring element of CFSP illustrates
the Union’s participation in the duty of diffusion and promotion of international humanitarian
law. However, the diversity of actions commanded by the Petersberg missions implies a form of
legal evaluation depending on the nature of the tasks envisaged. Indeed, the legal environment
of a humanitarian mission differs from a military operation to establish peace that has a military
component. In this respect, it has to be acknowledged that international humanitarian is far
from being systematically integrated in ESDP operations. This aspect will be studied further later
in the report. Another aspect of this question can be covered by studying the EU contribution to
the doctrine of Responsibility to Protect.
Responsibility to Protect
287 For more details on this question, please see Section VI of this report.
90

The Framework
The doctrine of Responsibility to Protect was introduced to the international community by the
International Commission on Intervention and State Sovereignty (ICISS) in 2001. 288 Its purpose
was to acknowledge a shift “from sovereignty as control to sovereignty as responsibility in both
internal functions and external duties” 289 and the belief that the “primary responsibility to
protect people lies with the state and a secondary or surrogate responsibility to protect falls to
the international community when the state is unable or unwilling to halt or avert a population
suffering serious harm.” 290 The Report was a response to tension between those who supported
the use of force for purposes of humanitarian intervention 291 and those concerned that using
force would have serious implications for “…legality, process and the possible misuse of
precedent”. 292 The Report concluded that “there is a large and accumulating body of law and
practice which supports the notion that, whatever form the exercise of that responsibility may
properly take, members of the broad community of states do have a responsibility to protect
both their own citizens and those of other states as well.” 293 However, it noted that there was
not yet a strong enough basis on which to regard the notion as customary international law. 294
The Report claimed that the Responsibility to Protect duties to prevent, react and rebuild from
crimes against humanity should be primarily executed by the individual states but “when
[sovereign states] are unwilling or unable to. . . protect their own citizens from avoidable
catastrophe – from mass murder and rape, from starvation – that responsibility must be borne
288
ICISS, The Responsibility to Protect (2001), available at: http://www.iciss.ca/pdf/Commission-Report.pdf.
289
ibid, p 11.
290
E McClean, “The Responsibility to Protect: The Role of International Human Rights Law”, Journal of
Conflict and Security Law 2008 13(1):123, 127.
291
JL Holzgrefe defines humanitarian intervention as: ‘the threat or use of force across state borders by a
state (or group of states) aimed at preventing or ending widespread and grave violations of the
fundamental rights of individuals other than its own citizens, without the permission of the state within
whose territory force is applied’. JL Holzgrefe, ‘The Humanitarian Intervention Debate’ in JL Holzgrefe and
RO Keohane (eds) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (2003) 18.
292
ICISS Report, p 1-2.
293 ibid 16.
294 ibid 15 and 50.
91

y the broader community of states.” 295 The Report made it clear that the exercise of
Responsibility to Protect brought with it several coercive and non-coercive tools, including
diplomatic pressure, economic sanctions, and as a last resort, military action. 296 It further
established six criteria by which to determine how the international community should react
with regard to military intervention: right authority, just cause, right intention, last resort,
promotional means and reasonable prospects.
Following the Report, Responsibility to Protect was widely embraced as an emerging norm. In
2005 it was endorsed by the then UN Secretary General Kofi Annan as the “the gap between
divergent views of security.” 297 The doctrine was subsequently discussed at the 2005 World
Summit. The Outcome Document included two unanimously endorsed paragraphs setting out
the doctrine of Responsibility to Protect.
The Outcome Document marks the first time the doctrine was treated as a legitimate
international responsibility, and not just an emerging norm. The Document ties the obligation to
four crimes: genocide, war crimes, ethnic cleansing and crimes against humanity. However, its
understanding of Responsibility to Protect did not include the six criteria recommended by ICISS
and instead recommended a case by case evaluation of the appropriateness of military
intervention. From that point on, Responsibility to Protect has increasingly been legitimized at
the international level. 298 It is referenced in UN Security Council Resolutions and most recently,
295 ibid viii.
296 ibid xii.
297 Secretary-General of the United Nations, In Larger Freedom: Towards Development, Security and Human
Rights for All UN Doc. A/59/2005 (Mar. 21, 2005) para 77. “While I am well aware of the sensitivities
involved in this issue, I strongly agree with this approach. I believe we must embrace the responsibility to
protect, and, when necessary, we must act on it.” Available at http://www.un.org/
largerfreedom/contents.htm.
298 For example, see SC Res 1674, UN Doc S/RES/1674 (Apr. 24, 2006) which makes reference to “the 2005
World Summit Outcome Document regarding the responsibility to protect populations….”; S.C. Res. 1706,
U.N.
Doc. S/RES/1706 (Aug. 31, 2006), and statements by the Secretary General regarding the scope of the
doctrine as narrow and focused solely on the four crimes and violations agreed by world leaders in 2005,
92

in 2007, Secretary-General Ban Ki-moon urged Kenyan leaders to “meet their responsibility to
protect the civilian population” less they be held responsible for violations of international law
they might encourage. 299
EU Contribution to Responsibility to Protect
The EU made known its support for the development of Responsibility to Protect before the
endorsement of the principle in the 2005 Outcome Document. 300 At the EU-Canada Summit in
2004, the two agreed to “continue…to seek agreement on new rules governing international
action on the protection of a population from the effects of civil conflict and state failure taking
into account the report of the International Commission on Intervention and State Sovereignty:
The Responsibility to Protect.” 301 The European Council submitted a document to the High Level
Panel on Threats, Challenges and Change which emphasized sovereignty in international law but
noted that:
[…] While the primary responsibility for preventing the failure of institutions lies with the
sovereign governments in question, the EU believes that when governments are
unwilling or unable to meet their responsibilities in this regard, the attendant risks can
most effectively be addressed through early and determined multilateral engagement
with the government or regime in question, initially on issues of governance, economic
management and human rights, and then, should it prove necessary, through coercive
means, including, as a last resort, the legitimate authorisation of military intervention. In
cases where there is a serious risk of large-scale loss of life, ethnic cleansing, and acts
amounting to genocide, the responsibility of the international community to intervene, in
http://www.un.org/News/Press/docs/2008/sgsm11701.doc.htm.
299
Daily press briefing by the Office of the Spokesperson for the Secretary-General, 28 January 2008,
available at: http://www.un.org/News/briefings.
300
The governments of Switzerland and the United Kingdom made financial contributions to ICISS when it
was created in 2001. A list of ICISS sponsors is available here: http://www.iciss.ca/sponsors-en.asp.
301
EU-Canada Summit, Ottawa, 18 March 2004, 7431/04 (Presse 83), available at:
http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/er/79508.pdf.
93

accordance with international law, to protect human life and dignity, security and peace,
is particularly strong. 302
In April of 2005, the EU Presidency formally endorsed the concept of Responsibility to Protect as
well as the Secretary General’s views on the concept as laid out in the Outcome Document. 303
The EU also played an important role in achieving consensus during negotiations at the 2005
World Summit by persuading the United States to relent on its proposal that the Statement
avoid language of responsibility and instead include an assertion that the international
community is ready to take action. 304 In February 2008, the Global Centre for the Responsibility
to Protect was created 305 with the support of several EU Member States, namely, Belgium,
France, Netherlands, and the United Kingdom. The Centre is tasked with “advance[ing] and
consolidate[ing] the World Summit consensus on Responsibility to Protect; protect[ing] the
integrity of the Responsibility to Protect concept; clarify[ing] when non-consensual military force
can and cannot be used consistently with Responsibility to Protect principles; build[ing] capacity
on Responsibility to Protect within international institutions, governments, and regional
organizations; and hav[ing] in place the mechanisms and strategies necessary to generate an
302
Paper for Submission to the High-Level Panel on Threats, Challenges and Change, para 19, available
at: http://consilium.europa.eu/uedocs/cmsUpload/EU%20written%20contribution2.pdf.
303
Statement at the Informal Thematic Consultations of the General Assembly of the United Nations on
Cluster III: Freedom to Live in Dignity by H.E. MR. Jean-Marc Hoscheit, Ambassador Extraordinary and
Plenipotentiary, Permanent Representative of Luxembourg to the United Nations on Behalf of the
European Union (New York), available at: http://www.europa-eu-un.org/articles/en/article_4591_en.htm.
304
Revised draft outcome document of the High-level Plenary Meeting of the General Assembly of
September 2005
submitted by the President of the General Assembly, available at:
http://www.reformtheun.org/index.php?module=uploads&func=download&fileId=804. See also, Ernie
Regehr, “U.S. tries to water down ‘right to protection reform’”, The Record (Kitchener-Waterloo, Ontario) 8
September 2005; and R Matarazzo and E Rebasti, Report of the International Conference “The EU, the US
and the Reform of the United Nations: Challenges and Perspectives”, EUI Working Papers, Law No.
2006/12.
305
Javier Solana, EU High Representative for the CFSP, welcomes today’s launch of the Global Centre for
the Responsibility to Protect, 18 February 2008, Council of the European Union, S058/08, available at
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/declarations/98733.pdf.
94

effective political response as new Responsibility to Protect situations arise” 306 In 2006, the UK
(on behalf of the EU) affirmed its support for UN Security Council Resolution 1674 on the
Protection of Civilians in Armed Conflict stating that it “embrac[es] the concept at the highest
level” and stated its clear relevance to the issue of protection of civilians in armed conflict. 307 In
an external debate initiated at EU level, the Commission referred to Responsibility to Protect
when it asked stakeholders whether the doctrine helps them engage in “situations of fragility” in
developing countries. 308 The European parliament also referred to Responsibility to Protect
several times in relation to the ongoing crisis in Darfur. 309
Limits on the EU’s participation in the Responsibility to Protect Framework
In spite of its support for the principle of Responsibility to Protect, the EU has experienced some
difficulties in operationalising the framework. Specifically, there has been a lack of consensus
among the institutions regarding both the EU’s role in advancing the norm and the content and
application of the norm. The EU has also to face the problem of whether they have enough
resources to fully implement the framework.
While the European Parliament has taken a proactive stance towards promoting Responsibility
to Protect, the other institutions have not displayed such initiative. In fact, it has been suggested
that the Commission seemingly does not view itself as having any particular responsibility to
take the concept forward formally. 310 In fact, in a response to Parliamentary questions
306
“About the Global Centre”, at http://globalr2p.org/about.html.
307 th
United Nations Security Council 5319 meeting, 9 December 2005 (New York), S/P.5319, available at:
http://www.undemocracy.com/S-PV-5319.pdf.
308
European Commission Communication: Towards an EU response to situations of fragility - engaging in
difficult environments for sustainable development, stability and peace (2007), available at
http://ec.europa.eu/development/how/consultation/index.cfm?action=viewcons&id=1.
309
Bulletin EU 11-2007, .30.1. European Parliament resolution on the EU response to situations of fragility
in developing countries; EU 11-2007, 1.34.49. European Parliament resolution on Somalia. 1.34.53.
310
G Evans, “The Unfinished Responsibility to Protect Agenda: Europe's Role”, Panel Discussion to
EPC/IPPR/Oxfam Policy Dialogue on Europe’s Responsibility to Protect: What Role for the EU?, Brussels, 5
95

concerning the doctrine, the Commission stated that “[w]hile the Commission welcomes the
development of this norm, it is for the UN member states to act upon it.” 311
Moreover, the EU Member States do not agree on the scope of the application of Responsibility
to Protect as envisioned in the 2005 Outcome Document. The principles has been criticized as
suffering from so-called ‘mission creep’, exceeding its intended purpose and potentially
becoming “all things to all people” and in the process potentially “meaning very little to
anybody”. 312 In 2008 France attempted within the Security Council at its 5898 th meeting to apply
the doctrine to the situation in Burma after it had been hit by a cyclone, but was criticized as
having mis-applied Responsibility to Protect by extending it beyond the language of the
Outcome Document. 313 In particular, the United Kingdom (as well as China and Indonesia)
rejected this application of the concept, stating that the consequences of the cyclone were an
internal matter that did not affect international peace and security and, further, that coercive
steps would undermine negotiations for cooperation with the generals. The UN humanitarian
community also rejected the French proposal stating that applying Responsibility to Protect in
July 2007, available at: http://www.crisisgroup.org/home/index.cfm?id=4936. Evans is the President of the
International Crisis Group and was Co-Chair of the International Commission on Intervention and State
Sovereignty that articulated the responsibility to protect doctrine.
311 ibid.
312 Luck, Edward C., “Prevention: Theory and Practice”, in FO Hampson and DM Malone (eds.) From
Reaction to Conflict Prevention: Opportunities for the UN System, (Lynne Rienner, Boulder, Co 2002) 256.
313 UN humanitarian affairs chief John Holmes has indicated that the French approach would not be
helpful and could be seen by some as confrontation, Reuters, 7 May 2008, available at:
http://www.reuters.com/article/homepageCrisis/idUSL07810481._CH_.2400; Gareth Evans wrote that “The
point about "the responsibility to protect" as it was originally conceived, and eventually embraced at the
world summit - as I well know, as one of the original architects of the doctrine, having co-chaired the
international commission that gave birth to it - is that it is not about human security generally, or
protecting people from the impact of natural disasters, or the ravages of HIV-Aids or anything of that
kind”, but also noted that “If what the generals are now doing, in effectively denying relief to hundreds of
thousands of people at real and immediate risk of death, can itself be characterized as a crime against
humanity, then the responsibility to protect principle does indeed kick in.” The Guardian, 12 May 2008,
available at: http://www.guardian.co.uk/commentisfree/2008/may/12/facinguptoourresponsbilities. ; See
also, J Marcus “World Wrestles with Burma Aid Issue” BBC News 9 May 2008: “Ed Luck, a special adviser to
the UN Secretary General, has argued that linking the “responsibility to protect” to the situation in Burma
is a misapplication of the doctrine.” Available at: http://news.bbc.co.uk/2/hi/asia-pacific/7392662.stm.
96

such circumstances would be insufficient and not likely to result in an increased survival rate. 314
There is clearly disagreement as to whether Responsibility to Protect should be invoked in
situations involving natural disasters or health epidemics, and this is something that must be
addressed.
Ultimately, the application of Responsibility to Protect to situations of need will require the
availability of adequate resources to respond in a timely and effective manner when situations of
need arise. It is unclear whether, at present, the EU is equipped with sufficient resources for
these instances. Certainly, in the absence of an EU military, the EU will have to rely on its
Member States to make national forces available where necessary. However, only a handful of
Member States have the capacity to conduct military operations at a fully operative level, largely
due to the fact that the militaries of most EU Member States rely on conscription and have only
10-15% of their forces available for deployment abroad, and also because only a small number
of Member States have the capacity to conduct strategic military operations outside of their
territory. 315 Furthermore, because most states rely on conscripts and focus on territorial
defence, only a small percentage of forces may be available for deployment abroad. Indeed,
despite the fact that the situation in Darfur is seemingly a case justifying the application of
Responsibility to Protect, the EU’s efforts have been slighted: “peacekeeping efforts [are] proving
manifestly inadequate, peace negotiations [are] going nowhere fast, humanitarian relief [is]
faltering, the conflict [is] spilling over into neighbouring countries, and the overall situation [is]
remaining desolate.” The lack of an EU military response has also been viewed negatively. 316
314
Many humanitarian organizations, including the UN Office for Coordination of Humanitarian Affairs,
have criticized Kouchner’s interpretation of the Responsibility to Protect. The doctrine/norm, in its true
application to the four crimes listed above, requires that peaceful means be exhausted prior to any use of
force. As United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief
Coordinator John Holmes said on 7 May 2008, “I’m not sure that invading them would be a very sensible
option at this particular moment. I’m not sure it would be helpful to the people we are actually trying to
help.” http://www.globalpolicy.org/empire/humanint/2008/0509r2pburma.htm.
315
F Hoffmeister, J Wouters, T Ruys, The United Nations and the European Union: An Ever Stronger
Partnership (Cambridge University Press 2006) 237.
316
Evans n 310: “This is not a case where I would argue that external military forces should fight their way
97

Comments
Although the EU has enthusiastically endorsed the principle of Responsibility to Protect, its
implementation of the concept is not without its problems. The EU must take a more
conspicuous and forward-looking role in the advancement of Responsibility to Protect. Although
Member States are the principal actors responsible for its application, the EU should take a
greater role in supporting the efforts of Member State to develop and apply the doctrine. The
most visible and constructive effort the EU could make in this regard would be to establish a
new EU agency or working group responsible for developing a shared understanding of when
Responsibility to Protect applies, to build state capacity for recognizing and responding to
situations in which it applies, and to generally act as an information clearinghouse when called
upon by other EU bodies. Such an agency would fit well alongside those other EU groups
responsible for dealing with matters associated with the CFSP.
Furthermore, because there is a lack of international consensus regarding the scope of
application of Responsibility to Protect, clarifying the boundaries of the doctrine should be a
priority for the EU. Guidelines cataloguing the substantive content of the norm and establishing
criteria for its application – perhaps the criteria advanced by the International Commission on
Intervention and State Sovereignty in its 2001 report (e.g. just cause, proportional means, right
intention, etc.) – need to be developed at EU level so that EU Member States can apply the norm
responsibly, consistently, transparently, and legally.
Finally, it has become clear that the EU has not yet developed the operational capacity to deal
with situations involving Responsibility to Protect. This could be one of the main reasons the EU
has taken a subsidiary role with regard to certain situations, for example in Darfur, where the EU
in whatever the resistance of the national government: if nothing else, the fifth criterion of legitimacy, the
balance of consequences, would argue against that”.
98

has emphasised that its role is primarily one of support to the African Union which it considered
the lead international organisation in that situation.
The EU position on Current Topics Relevant to IHL
Detainees in Guantanamo Bay
In 2002, the European Parliament adopted a resolution discussing the rights of detainees in
Guantanamo Bay and calling on the UN Security Council to pass a resolution establishing a
tribunal to clarify prisoners’ legal status. 317 This was resolution was following in November 2002
by a second resolution once again calling on the UN Security Council to clarify the detainees’
rights in response to the US Defence Department’s announcement that the detainees would be
questioned for intelligence information. 318 Subsequently, in September 2003, the European
Parliament a public hearing on the topic of “Guantanamo: The Right to a Fair Trial” at which an
overview of the situation in Guantanamo was presented by lawyers representing the detainees
and followed by a debate. 319
In 2004, the European Parliament adopted a resolution urging the Council to adopt a common
position on matters relating to foreign policy and police and judicial co-operation in the second
and third pillars, respectively, and to follow the common position with discussions with the
United States regarding the right to a fair trial. 320 This was followed by the adoption of
317
European Parliament Resolution of 7 February 2002 on the detainees in Guantanamo Bay, Official
Journal C 284 E , 21/11/2002 P. 0353 – 0354, available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P5-TA-2002-
0066+0+DOC+XML+V0//EN.
318
European Parliament resolution on the detainees in Guantanamo Bay, Official Journal C 284 E ,
21/11/2002 P. 0353 – 0354.
319
A report from the hearing could not be located; however, the programme, is available here:
http://www.statewatch.org/news/2003/sep/EPhearing.pdf.
320
Report of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and
the opinion of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (A5-0107/2004),
p. 12. Available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A5-
2004-0107+0+NOT+XML+V0//EN&language=EN.
99

ecommendations for the Council on the detainees’ right to a fair trial which dealt first with the
legal consideration of the detainees and asked the US authorities to end the ambiguous legal
status in which the detainees were held. It also called upon the US to give individuals access to
an ad hoc criminal tribunal and to allow habeas corpus for all prisoners. The recommendation
also considered the issue’s possible impact on US-EU relations noting that the relationship is
invaluable if basic rights are not respected and advised that the issue of fair trial should be
raised at the next EU-US Summit in June 2004. However, it appears that the no resolution on the
issue could be reached. 321
In 2005 and 2006, Parliament carried on similarly, adopting a resolution calling on the US to
submit a report to the UN Human Rights Committee on its compliance with the International
Covenant on Civil and Political Rights, 322 and in February 2006, calling on the US to close its
detention facility at Guantanamo Bay and to treat its prisoners in accordance with IHL. 323
After the recent decision by President Obama to close the detention facility at Guantanamo Bay,
the EU issued three official documents on the matter in February and March 2009 and has
engaged in discussions with US leaders concerning the plight of the recently released detainees.
On 4 February 2009, the European Parliament adopted a resolution 324 on the return and
resettlement of Guantanamo detention facility inmates which “strongly welcome[d]” President
Obama’s decision to close the facilities and recalls that although the main responsibility for
321 The summit’s results are available at:
http://eurunion.org/eu/index.php?option=com_content&task=view&id=1556&Itemid=59.
322 European Parliament resolution of 28 April 2005 on the Annual Report on Human Rights in the World
2004 and the EU's policy on the matter, OJ C 45E , 23.2.2006, p. 107–127, available at
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2005-0150&language=EN.
323 European Parliament resolution of 16 February 2006 on Guantánamo, OJ C 290E , 29.11.2006, p. 423–
423, available at http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2006-
0070&format=XML&language=EN#def_1_3.
324 European Parliament resolution of 4 February 2009 on the return and resettlement of the Guantanamo
detention facility inmates, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-
//EP//TEXT+TA+P6-TA-2009-0045+0+DOC+XML+V0//EN.
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closing Guantanamo and dealing with the inmates rests with the United States, all democratic
countries, especially the EU and its Member States, have a responsibility to respect international
law and fundamental rights during the closure process. The resolution also calls upon the
Member States to co-operate in finding solutions and to be prepared to accept inmates into the
Union while respecting and reinforcing international law and making fair and humane treatment
of the former detainees a priority. 325
On 19 February, a resolution was adopted by Parliament concerning the alleged use of European
countries by the CIA for the transportation and illegal detention of prisoners. 326 This resolution is
a follow-up to a resolution passed on 14 February 2007 327 which concluded with a series of
political and legal recommendations for Member States, the Council and the Commission
suggesting independent inquiries into extraordinary rendition and information sharing
mechanisms. The 2009 resolution attributes a shared moral responsibility for the detentions in
Guantanamo between the United States and the EU Member States and denounces the lack of
action on the part of the Member States to properly investigate extraordinary renditions as
suggested by Parliament in the 2007 resolution. 328 The resolution also discusses the need for a
transatlantic dialogue with the United States and the development of EU-US agreements on
extradition and mutual legal assistance as a tool for law enforcement and judicial co-operation
in this area. 329 Its main focus is to strengthen EU investigations into any abuses and violations of
international and national law on human rights, fundamental freedoms, the prohibition of
torture and enforced disappearance.
325
ibid para 4.
326
Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-
0073&language=EN.
327
European Parliament resolution of 14 February 2007 on the alleged use of European countries by the
CIA for the transportation and illegal detention of prisoners, available at:
http://www.europarl.europa.eu/comparl/tempcom/tdip/final_ep_resolution_en.pdf.
328 EP 2009 Resolution (n 326) para 1.
329 ibid para 3-4.
101

At the end of February, the Commission and the Counter-Terrorism Co-ordinator in the Council
adopted a joint information paper on the closure of the Guantanamo Bay detention centre. 330
The paper supports the closure of the centre and focuses on resolving the situation of the
released detainees in light of human rights principles, including the principle of non-
refoulement in the Convention Against Torture. The paper discusses the possibility for EU
Member States welcoming ex-detainees but states that “[a]s there are no longer any EU
nationals among the Guantanamo detainees, there is no obligation under general international
law for EU Member States” to accept them. 331 However, recognizing that the decision whether to
allow ex-detainees entry is solely a decision for the individual Member Sates, the paper
discusses methods by which a former detainee could be received by a Member State: (1)
through issuance of a residence permit, or (2) via international protection mechanisms such as
refugee status or subsidiary protection. Another option discussed in the joint paper is the
assistance of the EU with reception of ex-detainees in third countries. 332 However, the document
notes that the EU’s wide range of human rights concerns in relation to third countries may
prevent it from supporting transfers to countries where individuals might face continued
detention or execution. 333 The paper also suggests the possibility for a co-ordinated EU
response – a strategy which, according to the paper, has been utilized in connection with
Palestine and the issuance of temporary residence permit. 334 The document concludes with a list
of principles that Member States should consider in the event that they choose to develop co-
ordinated legislation. The advice emphasizes the need for co-operation between Member
States, measures for rehabilitation and reintegration, and a consciousness that underlying policy
issues in the context of detention, transfer, trial and interrogation generally must be addressed
in order to avoid the creation of a second Guantanamo in a new location.
330
Available at: http://www.statewatch.org/news/2009/mar/eu-council-guantanamo-closure-ct-7038-
09.pdf.
331
ibid p 5.
332
ibid 6.
333
ibid.
334
Common Position 2002/400/CFSP concerning the temporary reception by Member States of certain
Palestinians. There is also an explanatory note on this situation at the end of the Joint information paper.
102

Finally, on 16 and 17 March 2009, an EU delegation in Washington held talks with US officials
concerning the Guantanamo inmates and how the United States intends to handle the situation
and to avoid another similar situation resulting from the closure and release of detainees. 335 EU
delegates presented US Attorney General Eric Holder with a detailed list of questions in order to
gather information on detainees before the EU made any move to receive them. The
information sharing is intended to allow EU Member States to make informed decisions
concerning the reception of former detainees.
Palestine
The EU has been the largest donor to the Palestinians in support of the Middle Eastern Peace
Process for quite some time with support amounting to around € 1 billion per year. 336 The EU
supports a two-state solution and has offered assistance to foster peace, stability and prosperity
through state-building, good governance and a strong economy. The EU has offered
humanitarian and emergency aid, as well as assistance with the development of modern
democratic police forces through its EU POL COPPS mission in Ramallah, and border assistance
with the mission EUBAM Rafah.
During 2009, the EU has already voiced its position concerning the situation in Gaza on several
occasions. On 15 January 2009, the European Parliament adopted a resolution reiterating its
support for UNSCR 1860 (2009) calling for “the withdrawal of the Israeli troops, the sustained re-
opening of the crossing points, the lifting of the blockade and the prevention of smuggling and
335
V Pop, ‘EU envoys seek Guantanamo assurances’, 17 March 2009, euobserver.com at:
http://euobserver.com/22/27785.
336
‘The EU in the Middle East Peace Process’ Memo/09/88, 27 February 2009, available at:
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/88&format=PDF&aged=0&languag
e=EN&guiLanguage=en.
103

of illicit trafficking in arms and ammunition”. 337 The Resolution also calls on Israel “to fulfil its
obligations under international law and international humanitarian law”. 338
On 26 and 27 January at the 2921 st meeting of DG RELEX, the Council adopted conclusions on
the Middle East Peace Process stating that it welcomed the end of the hostilities in Gaza and
urged the immediate opening of the Gaza crossings on a regular basis. 339 The EU also reminded
the parties to the conflict of their responsibility to respect international humanitarian law and
human rights and called for the uninterrupted distribution of humanitarian aid to the people of
Gaza. This was followed on 18 February 2009 by a resolution on humanitarian aid to the Gaza
Strip. 340 This resolution focused on the delivery of increased and immediate humanitarian aid to
the people of Gaza which, according to the resolution, requires a damage assessment and an in-
depth evaluation of the needs of the population.
Some days later, the Council Presidency issued a declaration on the settlement activities of
Israel 341 condemning Israel’s planned construction of a settlement near the Adam settlement in
the West Bank. It considered that this would constitute a new settlement block in violation of
international law. Settlement activity is viewed by the Council as a “major obstacle to the peace
in the Middle East and to the efforts of the international community to advance the Middle East
Peace Process” and “calls into question the seriousness of Israel’s commitment to the two-state
solution”. 342
337
Para 2, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-
2009-0025+0+DOC+XML+V0//EN.
338
ibid 6.
339
Press release available at:
http://domino.un.org/unispal.nsf/2ee9468747556b2d85256cf60060d2a6/7ac8f65c6cf77fa88525754b006e
2d35!OpenDocument.
340
Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2009-
0057+0+DOC+XML+V0//EN.
341
Available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/cfsp/106251.pdf.
342 ibid.
104

On 2 March 2009 at the International Conference in Support of the Palestinian Economy for the
Reconstruction of Gaza held in Sharm El-Sheikh, both Javier Solana (High Representative for the
CFSP) and Benita Ferrero-Waldner (Commissioner for External Relations and European
Neighbourhood Policy) commented on the situation in Gaza. Mr Solana confirmed the EU’s
support for UN agencies on the ground and the commitment to rebuilding both structures and
human dignity, and also for a reconstruction plan presented by Egyptian President Abbas and
Prime Minister Fayyad. Commissioner Ferrero-Waldner suggested four milestones that need to
be achieved in order to reach the goal of a two-state solution: (1) immediate and unconditional
opening of all crossings to Gaza; (2) the end of what she called the “deconstruction-
reconstruction cycle”; (3) a durable ceasefire; and (4) the establishment of a democratic
government.
The Presidency made two further declarations in March of 2009 343 on situations in East
Jerusalem involving house demolitions and evictions. Both situations are viewed by the EU as
threatening future chances of peace through their adverse impacts on the Palestinian
population. One in particular cited the possible demolition of 90 houses as a threat to a lasting
settlement in violation of international law. 344
Georgia
In September 2008, the European Parliament adopted a resolution on the situation in Georgia
shortly after the EU broke off its diplomatic relations with Russia. 345 The resolution noted the
343
‘Declaration by the presidency on behalf of the European Union on possible house demolitions in East
Jerusalem’, 12 March 2009, available at:
http://www.consilium.eu.int/uedocs/NewsWord/en/cfsp/106601.doc and ‘Declaration by the presidency
on behalf of the European Union on the threatened house evictions in East Jerusalem’ 23 March 2009,
available at:
http://europa.eu/rapid/pressReleasesAction.do?reference=PESC/09/37&format=HTML&aged=0&languag
e=EN&guiLanguage=en.
344
ibid (house demolitions).
345
Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-
0396+0+DOC+XML+V0//EN; regarding the suspension of political discussion, see BBC News Online, ‘EU
105

EU’s view that a solution to the conflict in the Caucasus would not be found through military
action and condemns the “unacceptable and disproportionate military action by Russia and its
deep incursion into Georgia” which the EU considers an illegitimate violation of international
law. 346 In order to effectively aid Georgia during this conflict, the EU called for a “robust
contribution” and welcomed the creation of an EU Monitoring Mission to complement UN and
OSCE missions. 347
The EU Monitoring Mission in Georgia was established in October 2008. Its remit is to monitor
the implementation of agreements concerning the withdrawal of Russian and Georgian armed
forces to positions held prior to the conflict. 348 The mission is to aid the stabilisation and
normalization of the situation as well as to monitor the Georgian police forces and ensure that
all parties are adhering to human rights and rule of law requirements. It also acts as a means of
information gathering to contribute to EU policy. Since its inception, the EUMM itself has issued
statements concerning various situations in the Georgia conflict, such as its condemnation of an
attack in Dvani which resulted in the death of two police officers, 349 and its statement of concern
regarding a Russian checkpoint in Perevi existing outside the boundaries of Russian control and
the death of a South Ossetian resident, allegedly killed by sniper fire near the administrative
boundary line. 350
In early February 2009, the Council Presidency issued a Declaration indicating that Russian plans
to increase its military presence in Abkhazia and South Ossetia were a serious concern, the
suspends talks on Russia pact’, 1 Sept 2008, available at:
http://news.bbc.co.uk/1/hi/world/europe/7592541.stm.
346
ibid paras 4 and 14.
347
ibid 20.
348
Fact sheet available at: http://www.eumm.eu/data/factsheets/factsheet-eng.pdf.
349
Press release available at: http://www.consilium.europa.eu/uedocs/cmsUpload/20081110-Dvani.pdf.
350
Press release available at: http://www.consilium.europa.eu/uedocs/cmsUpload/081108-Perevi.pdf.
106

implementation of which would “be a serious violation of the principle of Georgia's sovereignty
and territorial integrity, to which the EU is strongly committed”. 351
Furthermore, the EU has provided significant funding for reform in Georgia, both of its criminal
justice system and for internal political reform. During a visit to Georgia, Commissioner Benita
Ferrero-Waldner and Vice Prime Minister Giorgi Baramidze signed a “Joint Statement on a
Framework for increased EC Financial Assistance 2008-2010 to Georgia”. 352 The funding is
allocated to political reforms such as capacity for increased parliamentary scrutiny, increased
judicial independence and freedom of the media. More recently, in March 2009, the European
Commission released € 5 million for criminal justice reforms in Georgia under its ‘Budget
Support’ instrument, which requires that certain conditions 353 be met by the government before
the funds can be released in order to strengthen the rule of law and human rights protections in
Georgia.
Sri Lanka
Until recently, the EU had been relatively inactive in Sri Lanka, largely because the conflict taking
place there is occurring through guerrilla activity. The EU has been careful to note both
government misdeeds and acts committed by the Liberian Tigers of Tamil Elam (LTTE). After the
Sri Lankan government pulled out of the cease-fire agreement reached in 2002, in 2008 the
Council Presidency issued a condemnation and called on the Sri Lankan government to put
forward a substantive devolution agreement around which negotiations could be conducted.
351
Declaration by the Presidency on behalf of the EU on Russian plans to build up its military presence in
Abkhazia and South Ossetia, 5 February 2009, available at:
http://www.eu2009.cz/scripts/file.php?id=15316&down=yes.
352
Press release available at: http://www.delgeo.ec.europa.eu/en/press2009/20jan2009.html.
353
ibid. ‘The two sides agree that EC financial assistance should be targeted on agreed recovery
objectives, with transparency, accountability and sound management of public finances.’
107

Human Rights Guidelines
Since 1998, the EU Member States have adopted guidelines related to specific human rights
issues. 354 Guidelines are intended to provide EU actors, both at headquarters and in third
countries, with a basis for sustained action in key areas. While they are not legally binding, they
are considered to be a practical approach to the implementation of EU policy. Guidelines have
been adopted in several key areas including the death penalty (1998; updated 2008); human
rights dialogues (2001), torture and other cruel, inhuman or degrading treatment or punishment
(2001; updated 2008); children and armed conflict (2003; updated 2008); human rights
defenders (2004); rights of the child (2007); and violence against women and girls and
combating all forms of discrimination against women and girls (2008). 355 While the EU has
adopted many more guidelines, only those mentioned above are considered as ‘human rights
guidelines’. This section will discuss all but the guidelines pertaining to children and women, as
these are discussed below in relation to special interest groups.
Guidelines on IHL
The EU has also adopted guidelines for the promotion of compliance by third countries with
international humanitarian law. However, the organizational structure of the EU includes these
IHL Guidelines within the greater category of human rights guidelines. That structure is repeated
herein. The relationship between IHL and IHRL has been a topic of discussion in CAHDI for many
years. After a presentation to CAHDI by Professor Scheinin to the effect that “the tendency was
to find more points of convergence between human rights law and humanitarian law”, it became
clear that the favoured approach of CAHDI is to treat IHL and HR cumulatively; that is, the two
are to be considered as complementary and applicable simultaneously. 356 In support of this
354
All of the guidelines are available on the Council’s website at:
http://ec.europa.eu/external_relations/human_rights/guidelines/index.htm.
355
Council of the EU, ‘EU Annual Report on Human Rights 2008’ (hereinafter ‘2008 HR Report’), available
at: http://www.consilium.europa.eu/uedocs/cmsUpload/st14146-re02.en08.pdf.
356 st
Committee of Legal Advisers on Public International Law (CAHDI), ‘Meeting Report’, 31 Meeting,
Strasbourg, 23-4 March 2006, 21.
108

approach, a 2008 meeting of CAHDI reiterated the fact that the Committee considers issues of
IHL alongside developments in IHRL. 357 Furthermore, the IHL Guidelines are considered in the
EU’s Annual HR Reports.
The purpose of the IHL Guidelines is to establish operational tools to be used by the EU, its
institutions and its bodies in order to promote compliance with IHL by third states. Examples of
these tools include the establishment of reporting and assessment bodies (such as Council
Working Groups) or the reinforcement of such pre-existing bodies (such as EU Heads of
Mission). 358 The IHL Guidelines also discuss means of action at the disposal of the EU in its
relations with third countries, such as political dialogue, public statements, demarches, restrictive
measures/sanctions, crisis management operations, training and co-operation with other
international bodies. 359 The Guidelines are intended to be ‘complementary’ to other EU
guidelines in the sphere of human rights, torture and the protection of civilians. 360
There has been little follow up in relation to the IHL Guidelines. The EU’s 2007 Report on Human
Rights discusses them very briefly and reports that the only efforts made to support the
Guidelines have involved “raising IHL-related issues in dialogues with third countries”. 361 The EU
has discussed the respect for IHL in its discussions with Israel, Somalia, Darfur, Burma and the
United States (in relation to its war on terror). 362 A review of the 2008 HR Report indicates that
no further efforts have been made with respect to the IHL Guidelines, although they mention
the fact that responsibility for the implementation of the IHL Guidelines (and indeed, the HR
357 th
CAHDI, ‘Abridged Report’, 35 Meeting, Strasbourg, 6-7 March 2008.
358
European Union Guidelines on promoting compliance with international humanitarian law, Part III.A.
359
ibid Part III.B.
360
EU IHL Guidelines, art 1.1.
361
Council of the EU, ‘EU Annual Report on Human Rights 2007’ (hereinafter ‘2007 HR Report’) 20,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report07_en.pdf.
362
ibid 68-74.
109

Guidelines) is in the hands of one individual: Riina Koinka, the Secretary General/High
Representative for Human Rights. 363
Human Rights Dialogue with Third Countries
In 2001, the EU adopted Guidelines on Human Rights Dialogues with Third Countries. The goal
of the Guidelines was to interject human rights issues in all of the EU’s dialogue with third
countries or to initiate such discussion with specific third countries. 364 The Guidelines are
primarily procedural in nature, listing the method by which a dialogue is initiated and the
practical arrangements thereof. 365 The objectives of the dialogues and their practical
arrangements are to be established on a case-by-case basis depending on the particular state to
be approached. 366 The Guidelines stress that consistency between Member States’ bilateral
dialogues and EU dialogues should be maintained through information exchange conducted by
bodies such as COHOM. 367 The Guidelines set up a annual review mechanism to be conducted
by the current Presidency in conjunction with the Council Secretariat, which will in turn report to
COHOM. 368 COHOM is also tasked with developing a management scheme for the dialogues. 369
The 2001 HR Report noted the importance of such dialogue and stressed that not only human
rights, but also democratisation, should be systematically included in the discussions at all levels
of EU political dialogue and bilateral relations with third countries. 370 Any discussion of these
issues must be in line with EU policy toward the country in question. At the time of the 2001 HR
Report, the EU was only engaged in human rights dialogue with China; 371 however, in 2002,
363
ibid 21.
364
Guidelines on HR Dialogue para 3.1
365
ibid Parts 6 and 7.
366
ibid Parts 4 and 7.
367
ibid Part 8.
368
ibid Part 10.
369
ibid.
370
Council of the EU, ‘EU Annual Report on Human Rights 2001’ (hereinafter ‘2001 HR Report’) 134,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report01_en.pdf.
371
This refers to an exclusive dialogue about human rights; the Guidelines mention that the EU was also
110

discussions were extended to include the US and Canada as well, although the focus remained
on China. Topics of discussion between the EU and China included the prohibition and
prevention of torture, the right to education, death penalty, and economic and social rights. 372
A review mechanism was put in place by 2003 which measured the effectiveness of the
dialogues. The 2003 HR Report notes that the “EU is evaluating the results of the dialogue at
regular intervals to determine to what extent its expectations have been met.” 373 In that vein,
the Report noted that the content of the dialogue with China had remained relatively the same
up to 2003. 374 However, the EU began objecting to specific human rights abuses in China such
as the execution of Tibetan monk Lobsang Dhondrup after a trial which the EU believed was
handled in such as way so as to “breach […] the trust built up by the EU-China dialogue.” 375 In
addition to China, the EU entered into a human rights dialogue with Iran which highlighted
issues such as Iran’s signing, ratification and implementation of international human rights
instruments; cooperation with international human rights procedures and mechanisms;
openness, access and transparency; the fight against discrimination; improvements to the prison
system; civil and political rights; freedom of the press and freedom of expression; reduction of
arbitrary detention and forced disappearances; a moratorium on stoning, and on the death
penalty for minors; non-discrimination against women. 376
In 2004, the EU focused less on China and more on Iran where dialogues focused on two main
subjects: freedom of expression and the right to development. 377 The 2003-04 dialogue was also
engaged in ad hoc dialogues concerning CFSP-related topics which sometimes included human rights
with Cuba and Sudan (paras 2.2 and 2.3).
372
Council of the EU, ‘EU Annual Report on Human Rights 2002’ (hereinafter ‘2002 HR Report’) 46,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report02_en.pdf.
373
Council of the EU, ‘EU Annual Report on Human Rights 2003’ (hereinafter ‘2003 HR Report’) 37,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report03_en.pdf.
374
ibid.
375
ibid 38.
376
ibid 39.
377
Council of the EU, ‘EU Annual Report on Human Rights 2004’ (hereinafter ‘2004 HR Report’) 46,
111

used as an opportunity to address several situations in Europe which the Iranians believed to be
contrary to international human rights standards. 378 This demonstrates that the EU HR dialogues
are intended to be mutual in nature. In the same Report, the status of EU-US and EU-Canada
consultations was discussed, noting that with regard to the US meeting, “[t]he EU raised in
particular the use of capital punishment against juvenile offenders”. 379 The 2004 Report also
indicated that it had ongoing consultations with Japan, New Zealand and Russia. 380
The Council conducted a separate assessment 381 of the effectiveness of its dialogues in 2004,
commenting that the EU should consider further its institutional and human resource capacity to
enter into new dialogues, as well as a greater emphasis on continuity in the EU’s dialogues with
China and Iran with a view toward improving their effectiveness which would be regularly
monitored by COHOM and other relevant working groups. 382
The EU’s dialogues with third countries carried on in a similar manner (with slight variation to
content) for the next couple of years, expanding to include more detail on its relationship with
Russia which consisted of, among other things, discussions concerning Chechnya and the
situation of minorities and Russia’s own concerns with HR issues in the EU. 383 Also, the reports
began to highlight discussions taking place in the context of Article 8 of the Cotonou
Agreement with Angola, Botswana, Burkina Faso, Congo (Brazzaville), Gabon, Ghana, Kenya,
Nigeria, Senegal, South Africa, Swaziland, Mauritania, Mozambique, Uganda and Zimbabwe. 384
available at: http://consilium.europa.eu/uedocs/cms_data/librairie/PDF/ENHR2004.pdf.
378
ibid.
379
ibid 47.
380
ibid 48.
381
‘Council Conclusions on the implementation of EU human rights policy’ (2004), available at:
http://ue.eu.int/uedocs/cmsUpload/EU_HR_Policy15817_re03.en04.pdf.
382
ibid 2-3.
383
Council of the EU, ‘EU Annual Report on Human Rights 2005’ (hereinafter ‘2005 HR Report’) 40,
available at: http://ue.eu.int/uedocs/cmsUpload/HRen05.pdf.
384
Council of the EU, ‘EU Annual Report on Human Rights 2006’ (hereinafter ‘2006 HR Report’) 19,
available at: http://ec.europa.eu/external_relations/library/publications/31_2006_eu_human_rights_en.pdf.
112

In 2006, the Council adopted conclusions on the implementation of EU policy on human rights
and democratization in third countries which confirm its continued implementation and the
importance of human rights on the Council’s agenda. 385 The guidelines consider dialogue to be
a “key tool in promoting human rights worldwide” 386 . The document is essentially a general
affirmation of the EU’s policy with regard to specific countries as discussed in the Annual HR
Reports, but also includes a statement of EU support for the UN Human Rights Council and the
adoption of several resolution concerning specific states including the DPRK, Belarus,
Burma/Myanmar and Iran. 387 It does not seem to make any suggestions for further action, but
those details are typically found within the individual Annual Reports.
The 2007 Annual HR Report notes that China, for the first time, presented the EU with HR
concerns of its own regarding the EU’s protection of migrant workers and issues of freedom of
expression and the press. 388 The Report also discussed the organisation of a Human Rights Legal
Seminar in Beijing on 16-17 October 2007 in cooperation with the Chinese authorities focusing
on freedom of access to information and labour rights, and which resulted in joint
recommendations. 389 The 2007 HR Report for the first time discusses the EU HR dialogue with
Uzbekistan established under the Partnership and Co-operation Agreement. The dialogue
addressed concerns regarding freedom of expression and the media, religion, the death penalty,
prison conditions and access of international bodies to prison, and reform of the judiciary. 390
Also in 2007, the European Parliament initiated and adopted a report calling for: (1) the
Commission and Council to ensure a greater degree of coherence in the EU’s HR dialogues with
third countries; (2) Parliament to be informed of the content of the dialogue; and (3) the use of
more stringent criteria and monitoring mechanisms, including increased transparency and
385 2770 th Council Meeting, General Affairs and External Relations, Brussels, 11 December 2006 p 20.
386 ibid 22.
387 ibid 24.
388 2007 HR Report (n 361) 22.
389 ibid.
390 ibid 23.
113

publicity. 391 It notes that dialogue objectives should be based on the principle that human rights
are “universal, indivisible and interdependent”. 392 In addition, the report warns that “the
promotion and defence of human rights in Third countries should not be conditioned by
geopolitical or geo-strategic alliances.” 393 The report notes that “there is a wide variety of
dialogues, each based on different structures, formats, frequencies, and methodologies, thus
obscuring the picture and creating confusion about EU action in this area.” 394 It offers some
recommendations on how to improve the mechanisms. MEPs call on the Council to “set clear
criteria for the initiation, suspension or termination of a dialogue,” 395 and also urge it to put in
place "a post-electoral protocol mechanism to monitor and support the democratisation
process, which includes the involvement of the civil society at all stages.” 396
The most recent report, that of 2008, attempts for the first time to broaden the scope of
‘dialogue’ to include all of the following:
• Human rights dialogues currently taking place in various formats;
• Structured human rights dialogues;
• Dialogues conducted in dedicated sub-committees under Association Agreements,
Partnership and Cooperation Agreements, or Cooperation Agreements, in particular
in the context of the European Neighbourhood Policy;
• Local human rights dialogues;
• Troika consultations on human rights issues. 397
391 European Parliament Committee on Foreign Affairs, ‘Report on the functioning of the human rights
dialogues and consultations on human rights with third countries’ (2007/2001(INI)), Rapporteur: Elena
Valenciano Martínez-Orozco.
392 ibid 10.
393 ibid 6.
394 ibid 7.
395 ibid 11.
396 ibid 9.
397 2008 HR Report (n 355) 29.
114

It notes that in the period between 1 July 2007 and 30 June 2008, HR dialogues and
consultations were conducted with the following countries: African Union, Bangladesh, Canada,
Cambodia, Candidate Countries, China, Egypt, India, Israel, Japan, Jordan, Laos, Lebanon,
Moldova, Morocco, New Zealand, Russia, Turkmenistan, Tunisia, Ukraine, US and Uzbekistan. 398
The 2008 Report recorded an unusually high amount of EU activity in China, including several
field visits during which the EU made note of its HR objections, particularly with regard to
restrictions on freedom of expression and the situation in Tibet and the role of the Dalai
Lama. 399 On the contrary, dialogue with Iran remained frozen since Iran’s 2006 cancellation of
the fifth round of dialogues. The Report notes that the EU “remains committed to the dialogue,
provided that Iran confirms its willingness to seriously engage in the process.” 400
Death Penalty
The EU supports the abolition of the death penalty and its policy is geared toward supporting
abolition in order to enhance human dignity and develop human rights. 401 In 1998, the EU
adopted its Guidelines on EU policy towards third countries on the death penalty, which was
revised in 2008. As is the case with all of the EU guidelines, the Death Penalty Guidelines provide
EU actors with operational tools. In addition to the typical sort of tool, such as demarches or
public statements, the Death Penalty Guidelines include a statement of minimum standards
which the EU considers it important for states to meet. Among these minimum standards is the
belief that capital punishment may not be imposed on people under the age of 18 at the time
their crime was committed; pregnant women or new mothers; or persons who have become
insane. 402 The Guidelines also mention action taken in specific cases where the EU believes a
violation of the minimum standards has occurred. 403 Moreover, the Guidelines state that the EU
398
ibid 30.
399
ibid 31.
400
ibid.
401
ibid 29.
402
EU Guidelines on the Death Penalty: revised and updated version, 6.
403 ibid 5.
115

should encourage countries to accede to international human rights instruments relating to the
use of the death penalty, such as the Second Optional Protocol to the ICCPR. 404
Since the adoption of the Guidelines, the number of demarches made by the EU has increased
steadily. The 1999 HR Report notes that the EU has intervened in many cases where the death
penalty has become an issue, for instance, where it has been imposed on minors or the mentally
handicapped. It has been part of the regular dialogue with China, Iran and the United States, in
which context the EU has emphasized its opposition to capital punishment. 405 In 2000, China’s
“excessive use” of the death penalty was marked by the EU as a “matter of deep concern” the EU
was heavily engaging with Chinese authorities to ensure that all judicial appeals are heard by its
Supreme People’s Court and for statistical data on the death penalty there. 406 Several joint
initiatives programmes have been launched in the region to support the rule of law in China,
such as the EU-China judicial co-operation programme. 407 The EU has been a strong opponent
of the death penalty before the UN Commission for Human Rights as well. 408 Demarches were
issued in Lebanon, Sri Lanka, Malaysia, Bangladesh and Indonesia. EU action has continued
similarly regarding those countries wherein EU demarches have been utilized. 409 Action in 2008
also includes public statements condemning the death penalty worldwide, specifically in relation
to the execution of minors in Iran and the resumption of capital punishment in the United States
404
ibid.
405
Council of the EU, ‘EU Annual Report on Human Rights 1999’ (hereinafter ‘1999 HR Report’) 28,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report_99_en.pdf.
406
Council of the EU, ‘EU Annual Report on Human Rights 2000’ (hereinafter ‘2000 HR Report’) 31,
available at: http://ec.europa.eu/external_relations/human_rights/doc/report_00_en.pdf.
407
ibid.
408
2001 HR Report (n 370) 40.
409
In 2008, the list included Afghanistan, Belarus, Brunei, Burundi, Canada, Chad, Congo, Congo
(Brazzaville), Egypt, Equatorial Guinea, Ethiopia, Fiji, Ghana, Grenada, Guatemala, Guinea-Bissau, India, Iran,
Iraq, Japan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Liberia, Libya, Madagascar, Malawi, Morocco, Namibia,
Niger, Papua, Palau, Russia, Saudi Arabia, South Korea, Sudan, Syria, Tanzania, Taiwan, Togo,
Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, the US and Zambia. The 2008 Report is available
at: http://www.consilium.europa.eu/uedocs/cmsUpload/st14146-re02.en08.pdf.
116

after the Supreme Court decision in Baze v Rees. 410 In addition, the 27 Member States were
represented by Portugal in the co-authoring of a UN General Assembly Resolution on a
Moratorium on the Use of the Death Penalty on 18 December 2007. 411 The EU has also funded a
project focusing on awareness-raising and education in sub-Saharan Africa and central Asia. 412
Human Rights Defenders
The EU’s Guidelines on Human Rights Defenders were adopted in June 2004 and are closely
modelled on the UN Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognised Human Rights and
Fundamental Freedoms of 1998. 413 Protection of human rights defenders has long been a part of
EU external relations policy. The Guidelines define ‘human rights defenders’ as: “…those
individuals, groups and organs of society that promote and protect universally recognised
human rights and fundamental freedoms” 414 and are to be used to “promote and encourage
respect for the right to defend human rights”. 415 They are intended to equip the EU with
practical means to support and assist defenders and to assist EU Missions in this regard, while
simultaneously contributing to general EU human rights policy. 416 As is characteristic for EU
guidelines, this set of Guidelines contains operational tools, such as monitoring, reporting and
assessment criteria. 417 They also include provisions on the role of EU Missions in supporting and
protecting human rights defenders through various types of measures such as close co-
ordination and information sharing and providing, where possible, visible recognition to human
rights defenders through appropriate publicity. 418 The Guidelines incorporate methods by which
410
2008 HR Report (n 355) 52.
411
ibid.
412
ibid 53.
413
The Declaration is annexed to the Guidelines on Human Rights Defenders.
414 Guidelines on Human Rights Defenders para 3.
415
ibid para 1.
416
ibid.
417
ibid paras 8-9.
418
ibid para 10.
117

the EU can promote respect for human rights defenders in their relations with third countries,
for example, raising the issue during country visits or including it within its political dialogues. 419
In 2005, the EU decided to increase support for the European Initiative for Democracy and
Human Rights (EIDHR) which supports local organisations in third countries. One of its priorities
is the protection of human rights defenders. 420 The EIDHR entered into force on 1 January 2008
and its 2007-2010 strategy paper commented on human rights defenders:
Assistance to human rights defenders under the EIDHR will aim at strengthening the
status of human rights defenders and their fundamental rights, in particular the right to a
fair trial and due process of law according to international standards, and supporting
their activities such as documenting violations, seeking remedies for victims of such
violations, or combating cultures of impunity which serve to cloak systematic and
repeated breaches of human rights and fundamental freedoms. 421
Implementation of the Guidelines is varied. A 2006 review by COHOM stated that only a few
Member States have provided their missions with operational guidelines and even less have
offered specific training. 422 Following the review, COHOM adopted 64 recommendations to
improve implementation and awareness of the Guidelines, including “…translating the
Guidelines into local languages, devising local strategies for the promotion of the Guidelines,
designating a focal point for human rights defenders, inviting human rights defenders to
meetings at missions, organising joint press conferences with human rights defenders,
establishing rotation routines for trial observation, undertaking visits to human rights defenders
419 ibid para 11.
420 2005 HR Report (n 383) 49.
421 European Instrument for Democracy and Human Rights (EIDHR) Strategy Paper 2007 – 2010, p 10,
available at: http://ec.europa.eu/europeaid/where/worldwide/eidhr/documents/eidhr-strategy-paper-
2007_en.pdf.
422 Draft Council conclusions on the first review of the implementation of the EU Guidelines on Human
Rights Defenders, Brussels, 7 June 2006, p 6, available at:
http://www.ishr.ch/hrdo/documents/EvaluationEUGuidelines_EN.pdf.
118

in remote regions and giving particular attention to the situation of women human rights
defenders”. 423
In light of the Guidelines, the European Parliament passed a Resolution on Repression in
Cambodia in 2006 which called upon the EU to “take steps to ensure that fundamental
freedoms, as enshrined in Article 1 of the […] Cooperation Agreement, are respected and that
attacks on civil liberties have consequences…”. 424 However, it does not appear that any action
has been taken by the Commission or Council in response to the Resolution. In that same year,
the Annual HR Report noted that the “EU has launched a worldwide campaign on freedom of
expression and women human rights defenders”. 425
The 2007 HR Report discussed the 8 th Annual NGO Forum on Human Rights in Helsinki in
December 2006 which concluded that a gender-specific approach should be utilized when
implementing the Guidelines and that EU Mission staff should benefit from more training in this
regard. 426 During 2007, the EU adopted a Local Implementation Strategy for the Guidelines in
Nepal due to the “continuing weak capacity of the State to provide public security combined
with the proliferation of illegal armed groups, the rise of communal tensions, and the threats to
free expression at a regional level…”. 427 The Strategy included:
• Translating the Guidelines into Nepalese;
• informing human rights defenders, NGOs, victims groups and the media about the
Guidelines;
• putting human rights defenders on the agenda of high-level bilateral talks with the
government and other stakeholders.
423
2007 HR Report (n 11361) 34.
424
Available at: http://www.eldr.eu/en/resolutions/2007/10/cambodia_2.
425
2006 HR Report (n 384) 17.
426
2007 HR Report (n 361) 34.
427
European Union (EU) Guidelines on Human Rights Defenders Local Implementation Strategy in Nepal,
available at: http://ecdelegationnepal.org/en/press_releases/european_union_guidelines_oct11.pdf.
119

An informal working group on human rights defenders was established in 2008 and undertook a
mid-term review of the status of implementation looking at 26 countries in order to determine
best practice. 428 The result of the review was a series of recommendations and conclusions which
“insist on the importance of strengthening the involvement of human rights defenders in the
implementation of the Guidelines, recommend to set up human rights groups at EU level in third
countries, suggest increasing efforts to raise awareness of the Guidelines at local level and
emphasise the importance of including freedom of the media on the agenda of human rights
dialogues with third countries.” 429 The 2008 HR Report also considered the importance of visa
issuance for the temporary relocation of human rights defenders at immediate risk. 430
Torture and other Cruel, Inhuman or Degrading Treatment
The EU extended it thematic human rights guidelines to the area of torture and other cruel,
inhuman or degrading treatment in 2001 in order to “strengthen ongoing efforts to prevent and
eradicate torture and ill-treatment in all parts of the world” as well as to reinforce the general
human rights policy of the Union. 431 Again, the Guidelines contain a list of operational tools that
can be used to combat torture, such as demarches, political dialogue and actions in human
rights fora, as well as tools such as monitoring and assessment mechanisms. The Guidelines then
go on to suggest certain measures that the EU should suggest to third countries: (1) to prohibit
and condemn torture and ill-treatment; (2) to adhere to international norms and procedures; (3)
to adopt and implement safeguards and procedures relating to places of detention; (4) to
establish domestic legal guarantees; (5) to combat impunity; (6) to take special consideration of
groups requiring special protection such as women and children; (7) to allow domestic
procedures for complaints and reports of torture and ill-treatment; (8) to provide reparation and
rehabilitation for victims; (9) to allow a domestic visiting mechanism for detainees; (10) to
428
2008 HR Report (n 355) 66.
429
ibid.
430
ibid 67.
431
Guidelines to EU Policy Towards Third Countries on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, ‘Purpose’.
120

establish independent national institutions to deal with these issues; (11) to provide effective
training; (12) to support the work of medical professionals; and (13) to conduct autopsies in all
cases of serious injury of detained persons. 432 The Guidelines also confirm that the EU is guided
by relevant international and regional norms such as the ICCPR, CEDAW and CERD, and that the
EU will engage in other initiatives in order to raise the issue of torture and ill-treatment in multi-
lateral for a and support pre-existing mechanisms, education, and the work of relevant NGOs. 433
The Guidelines are scheduled for review at least every three years. 434
The first move toward implementation consisted of EU co-sponsorship of UN resolutions
condemning the use of torture. For example, at the 55 th ordinary session of the UN General
Assembly, the EU co-sponsored (1) a Danish resolution on torture which was adopted by
consensus; (2) a Costa Rican Draft Optional Protocol to the Convention against Torture; (3) a
Finnish resolution on extra-judicial, summary and arbitrary executions; and (4) two French
resolutions on enforced or involuntary disappearances and arbitrary detention, respectively. 435
In 2002, COHOM began work on an outline for implementation of the Guidelines. 436 The EU
continued its support for UN initiatives and urged all States to become parties to the UN
Convention Against Torture (UNCAT) and to adopt the Convention’s optional protocol which
provides for a preventive system of regular visits to places of detention. 437
The 2003 HR Report tells of adoption of a working paper on the implementation of the
Guidelines by the Political and Security Committee of the Commission. 438 As part of the process,
432
ibid. pp 5-10.
433
ibid 10.
434
ibid 4.
435
2001 HR Report (n 370) 43-4.
436
The authors were unable to find drafts of the outline, but it was referred to in the 2002 HR Report (n
372) 91.
437 ibid 92.
438 2003 HR Report (n 373) 66.
121

EU Heads of Mission in third countries provided reports on patterns of torture in their countries
of relevance. These reports were used as a basis for specific action for the prevention of
torture. 439 At the time, the Presidency issued a statement concerning the types of action that
might be at the EU’s disposal, including demarches or investigation of alleged perpetrations of
torture or other cruel or inhuman treatment. 440
Funding from the EIDHR helped launch the ‘Istanbul Protocol Implementation Project’ by the
International Rehabilitation Council for Torture Victims (ICRT) which lasted two years and which
purpose was to promote national endorsement and implementation of the Protocol in five pilot
countries: Georgia, Mexico, Morocco, Sri Lanka and Uganda. 441 The Istanbul Protocol is the first
set of international guidelines for the investigation and documentation of torture. 442 The results
of the Project were noted in the 2005 HR Report which concluded that
[t]he project has addressed the great need for dissemination of knowledge and building
of expertise in the field with training seminars, reaching a total of 244 health
professionals and 123 legal experts representing both governmental and non-
governmental organizations. It has provided a significant starting point for improved
documentation and reporting in the five target countries and has sparked off a number
of concrete new initiatives, such as the establishment of the New Forensic Physicians
Society in Georgia. 443
Action resulting from the study by the Political and Security Committee consisted of the drafting
of a Council Regulation prohibiting trade in equipment and products which could be used for
439 ibid.
440 Declaration by the Presidency on behalf of the European Union on the Implementation of the EU
Guidelines on Efforts to Prevent and Eradicate Torture, 11 December 2002, available at:
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/cfsp/73646.pdf.
441 ICRT, ‘The Istanbul Protocol Implementation Project (IPIP): Investigating and Documenting Torture’,
available at: http://www.irct.org/Default.aspx?ID=2719.
442 The text of the Protocol is available at:
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
443 2005 HR Report (n 383) 43.
122

capital punishment and torture which was formally adopted in 2005. 444 The Regulation
references Article 5 of the Universal Declaration of Human Rights and Article 7 of the
International Covenant on Civil and Political Rights in its preamble and annexes a list of types of
equipment to which an import or export restriction might apply. It requires Member States to
provide annual activity reports on the number of applications for authorisations regarding the
import and export of technical assistance received and the types of goods concerned by
them. 445 Perhaps most importantly, Article 17 provides the Member States with the authority to
determine penalties applicable to infringements of the Regulation.
The reporting period covered by the 2006 HR Report seems to represent the period of greatest
activity with regard to the Guidelines, marking an estimated 60 countries in which the EU raised
the issue of torture, most of which were those countries that had not yet ratified the UNCAT,
countries whose initial reports to UNCAT are overdue, and those that have not responded to
requests from the UN Special Rapporteur on Torture. 446
In 2007, the EU continued its policy of raising the issue of torture with all countries under its
‘Global Action Plan on Torture’ through action such as seven rounds of demarches with 90
countries, and with interventions in over 20 cases. 447 The following year, the EU conducted an
inventory of its action under the Guidelines between January 2005 and December 2007,
acknowledging that the EU needed to “develop a more effective and integrated approach to
torture prevention, for example through raising the issue more consistently with third countries,
enhancing cooperation with the UN and regional mechanisms, intensifying public diplomacy
444
Council Regulation 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used
for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (OJ L 200,
30.7.2005 p 1).
445
ibid art 8, 9 and 13.3.
446
2006 HR Report (n 384) 27.
447
2007 HR Report (n 361) 31. Countries covered included: Algeria, the Bahamas, Bangladesh, Ethiopia,
Nepal, the Philippines and Uzbekistan.
123

efforts, and ensuring coherence between external and internal policies and action when
addressing torture issues.” 448 Its conclusion was that the problem of torture was still widespread:
[t]he widespread prevalence of torture has gone unabated. The recent years have
witnessed in fact serious and diffuse attempts, most notably in the context of anti-
terrorism, to undermine the absolute prohibition on torture and other forms of ill-
treatment. The “ticking bomb argument” has met with increased adherence by the wider
public. The EU should be more assertive publicly in opposing a steadfast and reasoned
opposition to any erosion of the absolute ban on torture and ill-treatment. 449
The inventory resulted in the adoption of Council Conclusions including, inter alia, a
confirmation that the promotion and protection of the right not to be tortured is a priority of
the EU’s policy work and a decision to further strengthen the implementation of the Guidelines
through follow-up on what was gleaned from the review and the implementation of new
measures. 450
Finally, in 2007-08, the Commission funded a project to study the impact of the Regulation
prohibiting trade in equipment and products which could be used for capital punishment and
torture. The project identified over 16,000 firms or companies involved in this trade, 451 and
concluded that there were still “numerous challenges to […] effective implementation, such as
governmental sensitivity, a lack of intra-EU cooperation and a limited capacity for some Missions
to act”. 452
448 2008 HR Report (n 355) 56.
449 Council of the EU, ‘Implementation of the EU Guidelines on torture and other cruel, inhuman or
degrading treatment or punishment - Stock taking and new implementation measures’, 18 April 2008, p
10, available at: http://register.consilium.europa.eu/pdf/en/08/st08/st08407-re01.en08.pdf.
450 2864th and 2865th Council meetings, General Affairs and External Relations, 29 April 2008, pp 17-8,
available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/100227.pdf.
451 2008 HR Report (n 355) 57.
452 ‘The Implementation on the EU Guidelines on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (Long Version)’, p 3, available at:
http://www.omct.org/pdf/various/2007/ep_study_torture_2007.pdf.
124

Comments
The EU is clearly making an effort to actively interject its human rights policy in all of its dealing
with third countries. However, it is unclear whether there are any real consequences for a third
country’s refusal to act according to human rights and IHL principles. The EU has many tools at
its disposal, as is clear from the various guidelines and the Regulation on torture, i.e. political
dialogue, demarches, public statements, intervention, and in some instances restrictive measures
or sanctions 453 . The Annual HR Reports, however, provide no example of when restrictive
measures have been taken. This perhaps illustrates the fact that while the EU has many tools at
is disposal, it is using them incorrectly or inefficiently.
Another more pressing problem is the EU’s failure to adequately consider the IHL Guidelines in
their own right similar to the way the EU evaluates the progress of the HR guidelines. While the
two may apply simultaneously, there are important differences between them. In fact, the IHL
Guidelines themselves acknowledge the importance of distinguishing between IHL and IHRL
calling them “distinct bodies of law” with “important differences between them”. 454 IHL requires
separate legal knowledge and competence within the relevant bodies. While CAHDI’s remit
includes IHL, there is not one body dedicated to it solely which perhaps has stunted the
progression of the Guidelines.
Special Interest Groups
Children
Children and Armed Conflict
453 IHL Guidelines (art 16(d)) and the Regulation concerning trade in torture goods (n 444) art 17.
454 ibid art 12.
125

As discussed above in relation to the various EU human rights guidelines, the EU has developed
parameters for the respect of human rights in various contexts such as the death penalty and
torture. In relation to the protection of children in armed conflict, the EU has developed a set of
guidelines and an implementation strategy.
In 2003, after an extensive consultation process with UNICEF, NGOs and the UN’s special
representative on children and armed conflict, the EU adopted the EU Guidelines on Children
and Armed Conflict. 455 The Guidelines were drafted against a history of the continued of children
in conflicts. The Guidelines indicate that in the past decade, over two million children have lost
their lives to armed conflicts and many millions more have been maimed. 456 While not offering a
definition of ‘child soldier’, the Guidelines attempt to address the issue of child militancy which,
according to the World Health Organization (WHO) constitutes “an epidemic within an
epidemic”. 457 The Guidelines describe an array of negative consequences that might befall
children during an armed conflict, including death, abduction, maiming, trafficking, participation
in the conflict, loss of health care, psychosocial problems, reintegration issues and lack of access
to justice.
The purpose of the Guidelines is to express the “critical importance” of the issue of children in
armed conflict in light of their particular vulnerability to the short, medium and long-term
impact of armed conflict. 458 The objective of the Guidelines is to influence third countries and
non-state actors to implement international human rights standards and law instruments so that
they may take measures to protect children from the effects of armed conflict but also end the
455
Available at: http://www.consilium.europa.eu/uedocs/cmsUpload/10019.en08.pdf (updated 2008 with
little variation).
456
ibid para 1.
457
World Health Organization, ‘Small Arms and Global Health’ (2001) 7: “Youth violence, particularly
among males, has been described as a global tragedy – and in health terms, as an epidemic within an
epidemic. Adolescents and young adults are the primary victims and perpetrators of violence in almost
every region of the world.”
458
Guidelines (n 455) para 6.
126

use of child soldiers and any impunity in respect of crimes and human rights violations against
children. 459
The course of action chosen by the EU within the Guidelines mirrors the action taken with
respect to most EU human rights guidelines. In order to take the issue of children in armed
conflict forward, the Guidelines propose a system involving (1) monitoring and reporting; (2)
assessment and recommendations for action; and (3) specific tools to use in relation to third
countries. The Guidelines also include a built-in regime for follow-up and review.
EU institutions, including Heads of Missions and EU Military Commanders, have a specific
responsibility to include, where relevant, in their periodic reports an analysis of the effects of
conflict or the threat of conflict on children. 460 The reports are to focus specifically on violations
and abuses against children, recruitment and deployment of children by armies and armed
groups, killing and maiming of children, attacks against schools and hospitals, blockage of
humanitarian access, sexual and gender-based violence against children, abduction of children
and any measure taken to combat such action by the parties to the conflict. The EU institutions
are also asked to report on the effects of any EU action in this area.
The Guidelines conclude by setting an agenda for COHOM which includes the oversight of the
implementation of the Guidelines and their periodic review resulting in reports to the PSC on an
annual basis, describing the progress of the aims of the Guidelines. COHOM has been tasked
with the responsibility to closely work with other institutions such as the UN Special
Representative of the Secretary General for Children and Armed Conflict and UNICEF in order to
identify situations where EU action is needed so that it is able to make appropriate
recommendations to the Council or its working groups.
459 ibid para 7.
460 ibid para 10.
127

In relation to third countries, typical tools such as demarches and political dialogue are to be
utilized in order to urge third countries to take measures to ensure the protection of children in
armed conflict. The Guidelines also specify multilateral co-operation in the form of funding for
projects relating to children and armed conflict, specifically in relation to Disarmament,
Demobilisation, Reintegration and Rehabilitation (DDR) and through humanitarian assistance.
They further note the importance of considering the question of the protection of children
during the planning process for crisis management operations, with particular consideration to
girls. Finally, the issue was to be included in field training for crisis management. The Guidelines
also retain the flexibility to use any other tools such as the imposition of targeted measures.
Shortly after their adoption, the Council showed its official support for the Guidelines by
establishing the Personal Representative on Human Rights (PR/HR). Two years later, in
December 2005, COHOM published its first biennial report on the implementation of the
Guidelines. 461 Prior to the issue of the report, COHOM established a priority list of 13 countries
from which reports on the situation of children affected by armed conflict were sought. 462 Based
on these reports, COHOM adopted a Plan of Action to identify issues pertaining to the thorough
implementation of the 2003 Guidelines. In light of the reports, COHOM made several
recommendations and identified areas of advancement. By way of progress, the report noted
that demarches had yielded positive results and that demarches were undertaken in Burundi,
Uganda, Colombia, Cote d’Ivoire, DRC, Liberia, Nepal and Sudan. 463 The report commended the
inclusion of the issue of children in conflict in training of its staff on security and defence policy
461 COHOM, ‘Draft Council conclusions on the biennial review of the EU Guidelines on Children and Armed
Conflict’ December 2005, available at: http://ue.eu.int/ueDocs/cms_Data/docs/hr/news39.pdf.
462 Liberia, Rwanda, Uganda, Sudan, Sri Lanka, Colombia, Burundi, Cote d’Iviore, DRC and Sierra Leone
were included in this list initially. Afghanistan, Burma and Nepal were added pursuant to a special meeting
by COHOM on the issue of children and armed conflict.
463 COHOM (n 461) para 15.
128

and crisis management 464 , and confirmed that children had long been a priority of the EU’s
humanitarian aid policy 465 .
The report’s recommendations were many and included:
(1) more thorough monitoring and reporting by the Presidency, including within third
countries’ Human Rights Factsheets 466 ;
(2) closer co-operation with UN bodies via methods such as involvement in local Child
Protection Networks; 467
(3) inclusion of children and armed conflict in the mandates of all EU Special
Representatives in countries affected by armed conflict; 468
(4) mainstreaming of gender issues in all reporting, in light of the different impact of
armed conflict on girl soldiers; 469
(5) maintenance of a non-exhaustive list of priority countries that is constantly updated
and complementary to UN initiatives; 470
(6) ensuring widespread exposure to this issue through the circulation by COHOM of
this report to the Chairs of all relevant EU working groups; 471
(7) taking follow-up action in relation to the demarches conducted in 2005; 472
(8) considering demarching on related issues, such as urgent situations of concern
where a deterioration on the ground had particular implications for the rights of
children; 473
464 ibid paras 27-9.
465 ibid para 23. In fact, ECHO has provided over EUR 40 million to projects intended to combat the effects
of armed conflicts on children such as the protection and reintegration of child soldiers. In that task,
ECHO governed by the “Policy Guidelines Regarding Children Affected by Humanitarian Crises” of 5 July
2004.
466 ibid para 6, recommendation 1.
467
ibid, recommendation 2.
468
ibid, recommendation 3.
469
ibid, recommendation 4.
470
ibid, para 10, recommendation 1.
471
ibid, recommendation 2.
472
ibid, para 18, recommendation 1.
129

(9) considering a second round of lobbying which might target countries not listed as
current priorities and for support of the monitoring mechanism provided for in UNSCR
1612; 474 and
(10) lobbying for the inclusion of staff responsible for and with expertise in human
rights in all ESDP missions 475 .
One year after the issue of COHOM’s biennial report, the Council adopted the “Checklist for the
Integration of the Protection of Children Affected by Armed Conflict into ESDP Operations” 476 in
order to promote the consideration of children’s rights and protection in the early stages of
ESDP operations. The Checklist is to be used by staff responsible for mission planning and
support, as well as EU Special Representatives and Heads of Missions and Commanders in the
field. It addresses the recommendation that child protection expertise be included in the early
planning of missions, with particular focus on the needs of children and the special vulnerability
of girls. The Checklist specifies several issues that should be addressed such as institution
building, strengthening the juvenile justice system, legislative reform, child-specific DDR and
training for local police, penitentiary and justice administration officials. 477 It also addresses the
need to include child protection concerns in the rules of engagement for military operations and
in review and assessment missions. Furthermore, the checklist provides for several operational
aspects of the protection of children such as developing a mission-wide approach that takes
children’s rights into account in each part of a mission and including child protection issues in all
monitoring and reporting activities of missions. 478 Like most other EU measures, the Checklist
473 ibid, recommendation 2.
474 ibid, recommendations 3 and 4.
475 ibid, para 26, recommendation 1.
476 Council of the EU, “Checklist for the Integration of the Protection of Children affected by Armed
Conflict into ESDP Operations”, 23 May 2006, available at:
http://register.consilium.europa.eu/pdf/en/06/st09/st09767.en06.pdf.
477 ibid 4.
478 ibid.
130

stresses inter-institutional co-operation and the development of national legislation to address
these issues.
The most recent evaluation of the Guidelines in the 2008 Annual HR Report 479 notes that the list
of priority countries has been expanded to include Israel, the Palestinian Occupied Territories,
Haiti, Lebanon, Chad and Iraq. The Slovenian Presidency commissioned a study entitled
"Enhancing the EU response to children affected by armed conflict" and the Council adopted an
updated version of the Checklist that reiterated the need for an expert presence on the ground.
The Annual HR Report also indicates that the Council adopted conclusions on the rights of the
child, in particular children in armed conflict, which urged the Commission and the Member
States “to continue ensuring coherence, complementarity, and coordination of human rights,
security, and development policies and programmes with a view to addressing the short,
medium, and long term impacts of armed conflict on children in an effective, sustainable, and
comprehensive manner.” The Report also notes the Paris Conference entitled “Free Children
from War” and its follow-up forum which aimed at facilitating the financing of programmes and
specific projects on rehabilitation of former child soldiers and committed the participating states
to combat the existence of child soldiers.
The Promotion and Protection of the Rights of the Child
In December 2007, the Council adopted the more general “EU Guidelines on the promotion and
protection of the rights of the child” 480 which complement the Guidelines on children on armed
conflict and stress the commitment of the EU to the realization of children's rights as enshrined
in the Convention on the Rights of the Child and its Optional Protocols. These Guidelines work
in largely the same way as the others, i.e. they include operational tools such as demarches, bi-
and multilateral co-operation, partnerships with other institutions and the promotion of
479 2008 HR Report (n 355) 64-6.
480 Available at: http://www.consilium.europa.eu/uedocs/cmsUpload/16031.07.pdf (its implementation
strategy is included as an annex).
131

international human rights standards in third countries. Once again, COHOM is tasked with
overseeing implementation. The 2008 Annual HR Report notes that the first area of priority for
the Guidelines’ implementation is “All Forms of Violence against Children”. In 2007 the EU began
developing specialized implementation strategies for 10 countries, with the aid of UNICEF and
relevant NGOs. 481
After the Commission Communication “The Special Place for Children in EU External Action” 482
and the recognition that the importance of children and the full realization of their rights has
not been given sufficient priority, the Council adopted, in May 2008, “Conclusions on the
promotion and protection of the rights of the child in the European Union's external action – the
development and humanitarian dimensions”. 483 The Conclusions call on the EU to integrate the
rights of the child into all of its external action using all available methods and instruments, such
as political dialogue, trade negotiations, development co-operation and humanitarian aid. 484
The 2008 Annual HR Report notes that the Commission signed a contract with UNICEF at the
end of 2007 for training activities and guidance on practical tools that the EU and other
organizations can utilize in order to promote and protect children’s rights. 485
Comments
The EU’s decision to develop guidelines on the protection of children is a positive step toward
ensuring their protection throughout the EU in its mission work. However, some criticisms arise.
First, in the Guidelines (as in all guidelines) there is not a specific budgetary allocation giving the
guidelines the operational capacity they need to provide the best protection to children
possible. Without a budgetary allotment, there is a risk that the Guidelines will remain mere
481 2008 HR Report (n 355) 205.
482 Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0055:FIN:EN:PDF.
483 Available at: http://www.consilium.europa.eu/ueDocs/newsWord/en/gena/100669.doc.
484 ibid para 3.
485 2008 HR Report (n 355) 65.
132

statements of intent. 486 Furthermore, the guidelines’ focus on a list of priority countries must be
consistently reviewed and kept up-to-date to mirror situations as they change or any action
taken in relation to them may become irrelevant and stale. 487 Generally, however the work of the
EU seems promising in this regard.
Women
The EU’s action in relation to women and armed conflict has not been as proactive as its efforts
toward the protection of children, yet recent activity suggests a renewed interest in the topic.
However, although the EU has expressed its awareness of the role of women in armed conflict
and the negative consequences of that involvement, and has engaged in projects supporting
this concept, it has done so largely under the umbrella of non-EU initiatives, such as those of the
UN.
The most important UN initiative in the sphere of women in armed conflict is UNSCR 1325(2000)
on Women and peace and security. 488 This is the first UN resolution adopted that specifically
highlights the impact of war on women and women’s contributions to conflict resolution and
sustainable peace. The Resolution consists of an 18-point strategy that calls for a global study
on the impact of armed conflict on women and girls, the role of women in peace-building and
the gender dimensions of peace processes and conflict resolution. It also urges UN Member
States to increase the representation of women at all decision-making levels and to adopt a
gender perspective when negotiating and implementing peace agreements. Overall, it calls for
the mainstreaming of gender into all peacekeeping operations and specialised training for
mission personnel.
486
This argument has been supported by the UN Institute for Disarmament Research: I Specht, L Attree, Y
Kemper, ‘Children and Armed Conflict: the Response of the EU’ (year unknown) 3, available at:
http://www.unidir.org/pdf/EU_background_papers/EU_BGP_02.pdf.
487
COHOM Draft Conclusions (n 461) 7.
488
Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/N00/720/18/PDF/N0072018.pdf?OpenElement.
133

It would seem that the first time the EU directly dealt with Resolution 1325 was in 2005 in a
Council Secretariat paper on The Implementation of UNSCR 1325 in the context of ESDP. 489 The
purpose of the paper is to develop practical methods of implementation in order. The paper was
produced at the behest of the EU Ministers on Gender Equality. Its introduction states that one
of the fundamental principles of the EU’s foreign and security policy is gender equality and that
mainstreaming gender issues into all action within ESDP is essential in order to help the EU
increase its crisis management capacity through the mobilization of all available human
resources. 490 The measures therein are intended to apply to all processes from pre-conflict to
post-conflict situations. 491 The document includes five types of implementation measures to: (1)
increase women’s representation at all decision-making levels; (2) increase dialogue with local
and international women’s groups; (3) protect women and girls affected by conflict; (4)
incorporate a gender perspective into ESDP operations; and (5) ensure gender training and
awareness raising. The paper concludes with an invitation to Member States, the Council General
Secretariat and relevant EU bodies to implement the measures proposed. 492
Subsequently, in November 2006, the GAERC issued conclusions emphasizing the importance of
gender mainstreaming in ESDP operations.493 In order to do so, GAERC recommended
• effective monitoring systems;
• improvement of the gender balance in ESDP operations and at senior management
level;
• the incorporation of gender issues in training;
• the inclusion of gender aspects during post-conflict as well as pre-conflict stages as
well as in DDR; and
489
29 September 2005, available at:
http://www.eepa.be/wcm/dmdocuments/Implementation%20of%20UNSCR%201325%20in%20the%20con
text%20of%20ESDP%20Febr%202005.pdf.
490
ibid 3.
491
ibid 4.
492
ibid 8.
493
Available at: http://www.consilium.europa.eu/uedocs/NewsWord/en/esdp/91749.doc.
134

• EU activities on Security Sector Reform, and finally, in measures related to
transitional justice.
Women have also become a focal point of EU DDR in the context of non-fighters associated
directly and indirectly with armed groups. 494 DDR recognizes that women are often recruited for
sexual purposes and are victims of forced marriages. This may lead to numerous psychosocial
and physical health problems. The concept emphasises the importance of women in the
prevention and resolution of conflicts, peace negotiations, peace building, peacekeeping, and in
humanitarian response and urges all international actors to increase their role in peace and
security efforts.
In 2006, the role of Gender Advisor at EU Operational Headquarters for ESDP missions was
created, specifically in relation to operation EUFOR RD in the DRC. 495 The role of the Gender
Advisor is to support, facilitate and monitor the implementation of UNSCR 1325/2000 in EU
missions. Activities that the Gender Advisor will engage in during missions include meeting with
women’s organizations for information and impact assessment and to show EU support,
collecting information on women’s and gender-related issues in the relevant locality, and
briefing top-level mission officials on gender issues. Specific to the DRC mission, but probably
also applicable to others, the Gender Advisor will issue weekly gender reports and monthly
statistics and information on female participation in the mission. The purpose of the Gender
Advisor is to integrate gender issues into the ordinary work performed by mission branches and
units in an effort to achieve the goal of mainstreaming gender issues into peacekeeping and
494 ‘EU Concept for support to Disarmament, Demobilisation and Reintegration (DDR)’, approved by the
European Commission on 14 December 2006 and by the Council of the European Union on 11 December
2006, available at: http://ec.europa.eu/external_relations/human_rights/child/concept_ddr_1206.pdf.
495 More information on the Gender Advisor to DRC is available at: http://www.isis-
europe.org/pdf/2007_artrel_41_isaksson-eufor-rdcongo-ppt.pdf.
135

other operations as set out in Resolution 1325. Overall, the establishment of Gender Advisor was
a success in EUFOR RD. 496
A Checklist to ensure gender mainstreaming and the implementation of Resolution 1325 in
ESDP operations 497 was drafted in 2006 and intended for use by civilian and military planners in
the Member States and the Council Secretariat. The document calls for the consideration of
gender as a factor in situation analyses, fact-finding missions, Human Rights Fact Sheets, and in
planning all types of missions. It also includes provisions for reporting on gender-specific
violence and local women’s role as actors in missions, as well as discussing gender and GSBs in
regular mission reviews.
In 2007, the EU entered into a three-year partnership with the UN Development for Women
(UNIFEM), named the EC/UN Partnership on Gender Equality for Development and Peace. 498 The
partnership is aimed at building capacity between the EU and UN and to increase accountability
for gender equality, specifically focusing on the role of women in conflict and post-conflict
situations, and particularly on the proper implementation of Resolution 1325. The 2008 Annual
HR Report comments that the partnership has most recently focused on country consultations
and mapping studies 499 on aid effectiveness and gender equality in 12 focus countries. 500
496
EU Operation Headquarters Potsdam, ‘Final Report on Gender Work inside EUFOR RD Congo’ 15
December 2006, available at:
http://www.honvedelem.hu/files/9/8008/eu_operation_headquarters_final_gender_report_eufor_rd_con.pd
f. Successful results included: (1) positive perception of training by participants in the operation and staff
personnel; (2) positive perception of EUFOR among influential Women’s organizations; (3) the successful
developments of weekly gender reports; (4) the creation and distribution of a Soldier’s Card which
included information on gender and subsequent training; and (5) the establishment of good dialogue with
MONUC’s Gender office and the Minister of Women and Family (p 6).
497
Council of the EU, ‘Check list to ensure gender mainstreaming and implementation of UNSCR 1325 in
the planning and conduct of ESDP Operations’, 27 July 2006, available at:
http://register.consilium.europa.eu/pdf/en/06/st12/st12068.en06.pdf.
498
More information on the partnership is available at: http://www.gendermatters.eu/.
499
The draft mapping studies are available at:
http://www.gendermatters.eu/index.php?option=com_content&task=category&sectionid=6&id=905&Ite
mid=87.
136

The following year, a study commissioned by the Slovenian Presidency of the EU was published
on ‘Enhancing the EU Response to Women and Armed Conflict’ 501 which sought to address the
fact that despite efforts, women are continually seen as victims of warfare while their potential
as peace-builders is disregarded. The study acknowledges EU efforts thus far, but is critical:
“Despite this growing awareness, current efforts are very far from ideal and women continue to
be marginalised from initiatives undertaken in conflict-affected contexts… European Union’s
response to this reality must be better targeted if the EU is to prevent violent conflict, promote
gender equality, recognise women’s rights and empower women more generally”. 502 It states
that all of the EU efforts made to address the issue until now have been based on the idea that
women are victims of war, rather than acknowledging that women are more than this: they are
actors, participants and combatants. In fact, the study shows that in several cases (Sierra Leone,
the Solomon Islands and others) women who were able to predict the outbreak of violence or
had access to vital information that might have prevented violence, were unable to access lines
of communication in order to report it to the relevant authorities. 503 The study concludes that EU
efforts must incorporate the concepts of gender equality, women’s empowerment and
upholding women’s rights, and should also engage men and boys in order to promote gender
equality. 504 The study makes some other recommendations such as close co-operation with the
UN and the support of local level projects such as that in Uganda, where a locally-based NGO
conducted short-term medical interventions and action research on the nature of conflict and its
impact on women in the area. 505 Essentially, the overall conclusion of the report was that the EU
does not have a systematic approach to women and armed conflict and so it is unable to
500
Cameroon, DRC, Ethiopia, Ghana, Honduras, Indonesia, Kyrgyz Republic, Nepal, Nicaragua, Papua New
Guinea, Suriname, Ukraine.
501
A Sherriff and K Barnes, European Centre for Development and Policy Management, Discussion Paper
No 84, available at: http://www.peacewomen.org/resources/1325/euresponseWAC.pdf.
502
ibid 1.
503 ibid 14.
504 ibid 2.
505 ibid 23 (Box 4).
137

adequately understand and incorporate Resolution 1325 into its peacebuilding and
development activities. Its recommendations therefore focus on the organization of a framework
that will help integrate this issue in the way intended by the Resolution. 506
Later that same year, H.E. Ambassador Sanja Stiglic presented a statement on behalf of the EU at
a UN Security Council meeting recognizing the situation of women in armed conflict and the
importance the EU attaches to it. 507 The Ambassador commented that, despite the growing
awareness in the EU of this situation, the efforts made have not been effective enough to offer
meaningful protection to women in armed conflicts, nor has it emphasized the positive roles
that women might play in war-torn countries. She highlighted EU efforts to mainstream gender
issues into development cooperation and ESDP, including plans to include comprehensive victim
protection and support mechanisms in peace building and reconstruction, as well as the
establishment of a Gender Advisor in all ESDP civilian and military missions. Ambassador Stiglic
also cited the development of rules of conduct known as the Generic Standards of Behaviour 508
(GSBs) which are binding on ESDP staff and forbid involvement in sexual exploitation, trafficking
of women and prostitution. The GSBs focus on behaviour that will (1) guarantee appropriate
relations with the local population; (2) guarantee moral cohesion of the relevant operation; (3)
respect human rights and international humanitarian and criminal law; (4) contribute to
leadership and discipline; and (5) ensure the reporting of any behaviour that might lead to
disciplinary measures. The GSBs will be tailored for each individual operation and will be
complementary to the legal obligations of all personnel. Breach of the obligations will be
considered misconduct and could result in disciplinary measures. Any ESDP operation planning
document must include provisions for the implementation of GSBs. The statement concluded
506 ibid 71.
507 Availablt at:
http://newyork.predstavnistvo.si/fileadmin/user_upload/dkp_13_mny/docs/EU_Presidency_Statements/26S
tatement_Women__peace_and_security_FINAL_VERSION.pdf.
508 Council of the EU, ‘Generic Standards of Behaviour for ESDP Operations’, 18 May 2005, available at:
http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/behaviour_esdp_operations_/behavi
our_esdp_operations_en.pdf.
138

with the usual endorsement of inter-institutional co-operation in order to identify priorities and
develop a practical approach with emphasis on monitoring and assessment mechanisms in
order to properly implement Resolution 1325.
In May 2007, the EU Institute for Security Studies in Paris published a study on gender
mainstreaming in ESDP. 509 The study is the result of research in relation to ESDP missions in BiH,
including interviews with civilians and officers, as well as Member State responses to a
questionnaire on the implementation of Resolution 1325. The study opens by commenting that
generally, there has been a positive attitude toward women’s increased participation in BiH
missions EUFOR and EUPM. 510 However, it highlights several areas of concern triggered mostly
by preconceptions of women as ‘non-men’ that would not want to get involved in conflict. The
study illustrates that there is a place for women in conflict and peacetime operations as role
models for local civilian women and also as upper-level officers whose viewpoints may be more
easily-accepted than a man’s because they are perceived to be less threatening. The main point
made by the study is that since the 1990s, the nature of peacekeeping has changed in such a
way that has increased the involvement of soldiers with civilians so that they become somewhat
like social workers. In this context, gender issues can become more acute and therefore not only
should male soldiers be trained about this aspect of conflict, but the increasing importance for
the role of women should be recognized.
The most recent effort on the part of the EU to mainstream gender issues into ESDP is the
publication of the first ‘Handbook on Mainstreaming Human Rights and Gender into European
Security and Defence Policy’ 511 which is intended for use by individuals involved in crisis
management. The Handbook is a compilation of documents comprising the guiding principles
for planners of EU operations and examples of their use. It is intended that the handbook be
509
J Valenius, ‘Gender mainstreaming in ESDP missions’, ISS Chaillot Paper (May 2007) nº 101.
510
ibid 34.
511
Available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/hr/news144.pdf.
139

egularly updated to reflect the evolving nature of ESDP. Although the documents discussed
above are included in the Handbook, there are not, as yet, any examples of practical
implementation.
Comments
While it appears that the EU has not yet drafted a single policy instrument on women the way it
has on children and other topics on human rights, the EIDHR funded 184 projects focusing on
women at a total of € 42.3 million placing the subject of women fifth out of 18 in all of the
EIDHR’s funding. 512 Although the EU is clearly working to implement the provisions of
Resolution 1325, it has fallen short of implementation through a single policy instrument and
has demonstrated a somewhat passive approach to the issue of women and gender
mainstreaming. It does seem, however, that given the various pieces of research and statements
commissioned by the Council, the EU is heading toward the adoption of guidelines on women,
specifically in the context of gender mainstreaming.
Supporting International Institutions
The Union also participated in the crystallization of international humanitarian law norms,
particularly regarding the criminalization of violations of non-international conflicts law: 513
By giving its opinion in numerous declarations expressing its wish to repress infractions
to international humanitarian law in non-international armed conflicts, the Union has,
according to some authors, initiated a movement followed progressively by
international organisations and States, which was consecrated by the creation of
international ad hoc tribunals and by the adoption of the Statute of Rome.
512 A Sherriff and K Barnes (n 501) 39.
513 T. Ferraro, op.cit, p 447.
140

With its diplomacy, the EU shared its vision of the repression of the violations of
international humanitarian law with the whole “Geneva Conventions’ community”,
therefore contributing de facto to the development of an opinio juris, the psychological
element of the creation of customary law, after having been the ferment of the
customary process. 514
It is submitted that even the EU might not have been the ferment of the customary process, it
certainly played a pivotal and crucial role, in particular through its support to international
institutions and courts.
International Criminal Court
EU Documentation
The International Criminal Court (ICC) is the world’s first permanent court to try individuals
charged with genocide, war crimes and other crimes against humanity. Since its establishment in
2002 the EU Member States have played an active role in its implementation through its regular
support at the UN level and as its main financial contributor. In fact, all of the EU Member States
and candidate countries, with the exception of the Czech Republic and Turkey, have ratified the
Rome Statute. 515
514 « Ayant exprimé dans de nombreuses déclarations le souhait d’aboutir à la répression des infractions
au droit international humanitaire en période de conflits armés non internationaux, l’Union a ainsi amorcé
un mouvement suivi progressivement tant par les organisations internationales que par les États, et
consacré notamment par la création de tribunaux pénaux internationaux ad hoc et l’adoption du Statut de
la Cour pénale internationale.
Par sa diplomatie, l’Union européenne a su faire partager sa vision de la répression des violations du droit
international humanitaire à l’ensemble de la communauté juridique des Conventions de Genève,
contribuant de facto au développement d’une opinio juris, élément psychologique de la formation de la
coutume, après avoir été le
ferment du processus coutumier.”, T. Ferraro, ibid, p448
515 http://www.iccnow.org/documents/Czech_Ratification_PR_OCT_2008.pdf.
141

As part of its support to the ICC, the EU engages regularly in actions to encourage ratification,
acceptance, and approval of the Rome Statute. It did this first through the development of two
common positions in the field of CFSP, the first of which:
urge[d] the European Union and its Member States to raise the issue of the ratification,
acceptance and approval in negotiations or political dialogues with third countries, to
adopt initiatives to promote the dissemination of the values, principles and provisions
of the Statute and to support the early creation of an appropriate planning mechanism
in order to prepare the effective establishment of the Court. 516
This was replaced in 2003 by a further common position, 517 which was a response to US efforts
to negotiate bilateral immunity agreements which would exclude US nationals from ICC
jurisdiction. The common position called upon EU Member States to prevent the signature of
further agreements. It also required EU Member States to make every effort to further the
process of accession to the Rome Statute by raising the issue of the widest possible ratification,
acceptance, approval or accession to the Statute and the implementation of the Statute in
negotiations or political dialogues with third States, groups of States or relevant regional
organisations, whenever appropriate. 518 The EU Parliament further adopted a set of guiding
principles with which any bilateral agreement must comply, including one of ‘no impunity’. 519
To supplement the two common positions, the EU adopted three action plans between 2002
and 2005 in order to strengthen and coordinate EU support. 520 The 2004 Action Plan was the
516
Council Common Position 2001/443/CFSP of 11 June 2001 on the International Criminal Court, OJ L
155, 12.6.2001, p. 19–20.
517
Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court, OJ L
150, 18.6.2003, p. 67–69.
518
ibid, Article 2 Para 1.
519
http://www.isgi.cnr.it/stat/ricerche/corte_penale_int/Linee_guida_UE.pdf, p 4.
520
Action Plan to follow-up on the Common Position on the International Criminal Court (9019/02),
available at http://register.consilium.europa.eu/pdf/en/02/st09/09019en2.pdf; Action Plan to follow-up on
the Common Position on the International Criminal Court (5742/04), available at
http://register.consilium.europa.eu/pdf/en/04/st05/st05742.en04.pdf; and "Strengthening of the
142

most detailed. It (1) established EU and national focal points to promote coordination and
consistency, (2) requires that the EU review its support for the ICC periodically, (3) calls on the
EU to support third states in the ratification and implementation of the Rome Statute, and (4)
makes the ratification of the Rome Statute a priority in EU external relations. 521
The EU-ICC Co-operation and Assistance Agreement
On 10 April 2006, the EU and the ICC entered into an agreement of co-operation and
assistance, 522 an important component of which is its provisions on the exchange of evidence.
Article 7 states that “[t]he EU and the Court shall, to the fullest extent possible and practicable,
ensure the regular exchange of information and documents of mutual interest in accordance
with the Statute and the Rules of Procedure and Evidence.” The agreement also provides in
Article 15, for the EU obligation to “support, as appropriate and in consultation with the Court,
the development of training and assistance for judges, prosecutors, officials and counsel in work
related to the Court.”
Follow-up Activities
In an effort to fulfill its mandate of support to the ICC, the EU has consistently included special
meetings on the ICC during all of its major summits and ministerials with third countries.
Furthermore, clauses relating to the ICC are consistently negotiated in partnership and
cooperation agreements, as well as in the context of the European Neighbourhood Policy and
related action plans. 523
International Criminal Court and implementation of the Action Plan" (13650/05), available at
http://register.consilium.europa.eu/pdf/en/05/st13/st13650.en05.pdf.
521
Action Plan 5742/04 n 520 pp 8-9.
522
EU-ICC Co-operation and Assistance Agreement, 10 April 2006, available at
http://register.consilium.europa.eu/pdf/en/05/st14/st14298.en05.pdf.
523
http://ec.europa.eu/external_relations/human_rights/icc/index.htm. Partnership and cooperation
agreements with Indonesia, Singapore, Thailand and the Philippines; Action Plans with Jordan, Moldova
and Ukraine. Similar clauses are currently under negotiation with Armenia, Azerbaijan, Egypt, Georgia and
Lebanon.
143

One of the biggest supporters of the ICC has been the European Parliament’s Friends of the ICC
Group. Established in 2003 under the leadership of Germany, the Friends of the ICC consists of
an informal group of states committed to the principles of the ICC that aims to support the
effective implementation of the Rome Statute both within and outside the EU. 524 For example, in
February 2007, the Parliament passed the Resolution on Sudan and the ICC 525 in response to
evidence that former Minister of State for the Interior of the Government of the Sudan,
Muhammad Harun, and Ali Kushayb, a leader of the Militia/Janjaweed, bore joint criminal
responsibility for alleged crimes against humanity and war crimes. 526 Sudan is not a party to the
Rome Statute and has consistently refused to send either men to the Hague for trial. The
Resolution called upon the Council to take punitive measures against a specific group of
individuals thought to bear responsibility for Sudan’s non-cooperation with the ICC, including
the freezing and seizing of assets and trade sanctions. As of the time of writing, there does not
seem to be any specific follow-up in relation to these proposed measures.
International Criminal Tribunal for the Former Yugoslavia
General Co-operation
Since its inception in 1993, the EU has financially supported the International Criminal Tribunal
for the Former Yugoslavia (ICTY). However, it was not until Slobodan Milošević was voted out of
office and replaced by Vojislav Koštunica as President of Yugoslavia in 2000 that the EU became
more substantively involved with the Tribunal and reconsidered Yugoslavia as a candidate for
collaborative efforts with the EU. Initially, co-operation was rather minimal, consisting of a series
of statements of support for states and individuals that worked toward furthering the mandate
of the ICTY. 527 In fact, even an apparent lack of co-operation on behalf of the former Yugoslav
524
http://www.iccnow.org/?mod=eu (last accessed 21/11/2008).
525
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-
0238+0+DOC+XML+V0//EN (last accessed 21/11/2008).
526
http://www.icc-cpi.int/library/organs/otp/ICC-OTP_Summary-Darfur-20070227_en.pdf (last accessed
21/11/2008).
527
See e.g., Declaration by the Presidency on behalf of the European Union on the appearance at the ICTY
of Mr Blagoje Simic 12-03-2001; Declaration by the Presidency on behalf of the European Union on the
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states with the ICTY only registered briefly in the EU’s 2002 Annual Report on Human Rights. 528
However, most statements made regarding the ICTY were directed at the former Yugoslav states
and mentioned EU membership as a reward for co-operation with the Court. 529
From 2003, the EU became more actively engaged in supporting the mandate of the ICTY in
relation to its own Member States and in third countries. In 2003, the Council adopted the
“Common Position in support of the effective implementation of the mandate of the ICTY” 530
which main purpose is to ensure that:
Member States…take the necessary measures to prevent the entry into, or transit
through, their territories of the persons listed in the Annex, who are engaged in
activities which help persons at large continue to evade justice for crimes for which the
ICTY has indicted them or are otherwise acting in a manner which could obstruct the
ICTY's effective implementation of its mandate. 531
Included in the Common Position is an annex which lists the individuals referred to in the above
text. The common position provides authority to modify the list and requires that the Member
States review the legislation periodically in order to have the most current information as
regards those individuals against whom indictments had been issued by the ICTY. 532 The
appearance at the ICTY of the ex-President of Republika Srpska, Ms Biljana Plavsic 11-1-2001; Statement
by the Presidency on behalf of the European Union on the extradition of Mladen Naletilic (Tuta) to the
ICTY in the Hague; http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/72321.pdf
(last accessed 24/11/2008).
528
Available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/misc/73020.pdf
(last accessed 24/11/2008).
529
See e.g., http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/10609.en1.html;
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/69769.pdf;
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/gena/69769.pdf.
530
Council Common Position 2003/280/CFSP of 16 April 2003 in support of the effective implementation
of the mandate of the ICTY, OJ L 101, 23/4/2003, p. 22–23.
531
ibid Article 1.
532
For example, a modifying decision was adopted in 2003 which increased the list of people from two to
14: Council Decision 2003/484/CFSP of 27 June 2003 implementing Common Position 2003/280/CFSP in
support of the effective implementation of the mandate of the International Criminal Tribunal of the
145

Common Position also obliges the Member States to “encourage third States to adopt restrictive
measures similar to those contained in [the] Common Position.” 533
Later that year, in response to the UN Security Council Resolution 1503 534 , the Council adopted
Common Position 2004/694/CFSP which required the EU Member States to freeze “All funds and
economic resources belonging to the natural persons listed in the Annex, who have been
indicted by the ICTY”, 535 and ordered that “No funds or economic resources shall be made
available directly or indirectly to or for the benefit of the natural persons listed in the Annex.” 536
The Council thought it “appropriate to freeze the assets of these individuals as part of the EU’s
overall effort to prevent any assistance provided to them and to bring them to the ICTY.” 537
Since then, the list of individuals has been consistently reviewed and updated. 538
former Yugoslavia (ICTY) OJ L 162, 1.7.2003, p. 77–79.
533
Council Common Position 2003/280/CFSP n 530 Article 3.
534 th
Resolution 1503 (2003) adopted by the Security Council at its 4817 meeting, on 28 August 2003,
includes the following text:
The Security Council…2. Calls on all States, especially Serbia and Montenegro, Croatia, and
Bosnia and Herzegovina, and on the Republika Srpska within Bosnia and Herzegovina, to intensify
cooperation with and render all necessary assistance to the ICTY, particularly to bring Radovan
Karadzic and Ratko Mladic, as well as Ante Gotovina and all other indictees to the ICTY and calls
on these and all other at-large indictees of the ICTY to surrender to the ICTY;
3. Calls on all States, especially Rwanda, Kenya, the Democratic Republic of the Congo, and the
Republic of the Congo, to intensify cooperation with and render all necessary assistance to the
ICTR, including on investigations of the Rwandan Patriotic Army and efforts to bring Felicien
Kabuga and all other such indictees to the ICTR and calls on this and all other at-large indictees of
the ICTR to surrender to the ICTR;…”.
535
Council Common Position 2004/694/CFSP of 11 October 2004 on further measures in support of the
effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia
(ICTY) OJ L 315, 14.10.2004, p. 52–53, Article 1(1).
536
ibid, Article 1(2).
537
Council draft legislative document 8320/1/04 p 3.
538
See e.g., Council Decision 2004/900/CFSP of 22 December 2004 implementing Common Position
2004/694/CFSP on further measures in support of the effective implementation of the mandate of the
International Criminal Tribunal for the former Yugoslavia (ICTY) OJ L 379, 24.12.2004, p. 108–110; Council
Decision 2005/148/CFSP of 21 February 2005 concerning the implementation of Common Position
2004/694/CFSP on further measures in support of the effective implementation of the mandate of the
International Criminal Tribunal for the former Yugoslavia (ICTY) OJ L 49, 22.2.2005, p. 34–36; Council
146

In addition to legislative support of the ICTY, the EU has assisted the Tribunal during its military
operation, ALTHEA in Bosnia and Herzegovina. The operation’s objectives included the provision
of support to the ICTY including for the detention of those individuals indicted for war crimes. 539
In support of its mandate, the EU military force (EUFOR) in Bosnia and Herzegovina has
undertaken over 20 Persons Indicted for War Crimes (PIFWC) missions. 540 The purpose of such
Common Position 2006/671/CFSP of 5 October 2006 extending the validity of Common Position
2004/694/CFSP on further measures in support of the effective implementation of the mandate of the
International Criminal Tribunal for the former Yugoslavia (ICTY)
OJ L 275, 6.10.2006, p. 66–66; Council common position 2007/635/CFSP of 1 October 2007 extending
Common Position 2004/694/CFSP on further measures in support of the effective implementation of the
mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) OJ L 256, 2.10.2007, p. 30–
30; and Council Decision 2008/733/CFSP of 15 September 2008 implementing Common Position
2004/694/CFSP on further measures in support of the effective implementation of the mandate of the
International Criminal Tribunal for the former Yugoslavia (ICTY) OJ L 247, 16.9.2008, p. 63–63.
539
EU Press Release 6896/07 (Presse 43) 28 February 2007, available at:
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/esdp/92992.pdf (last accessed
24/11/2008).
540
The information available to the public concerning these missions is very limited; however, the EUFOR
Press Office has confirmed the following PIFWC activities during 2008:
- On 27th March at the request of the ICTY, EUFOR conducted a search operation in premises in
Pale of people probably connected to the Radovan Karadzic support network. The aim was to
find material or information. It is believed that these three people are associated with the
Radovan Karadzic support network.
- On 2nd April at approximately 0530 at the request of the ICTY, EUFOR conducted a search
operation in the premises of Dragan Draskovic in Krupac. It is believed that this person is
associated with the Radovan Karadzic support network.
- On 22nd April at approximately 0600 at the request of the ICTY, EUFOR conducted a search
operation in the premises of Goran Marinkovic in Koste Majkica, Paprikovac District. We believe
Mr Marinkovic uses his extensive business links to fund the fugitives.
- On 30th May at approximately 0430 at the request of the ICTY, EUFOR conducted and
focussed a search operation in the premises of East Sarajevo University, assigned to Mr Kosta
Cavoski, in Pale. We believe Mr Cavoski uses his links with Pale to support the fugitive Mr
Karadzic.
- After the arrest of Stojan Zupljanin, on 11th Jun, the Commanders of NATO and EUFOR jointly
announced ‘they are delighted that their combined continuous efforts to identify, disrupt and
close down the networks supporting PIFWCs contributed to the successful arrest of Stojan
147

missions is to identify and disrupt the support networks of those who have been indicted and
are considered fugitives.
Most recently, in March 2009, the European Parliament issued an ‘own-initiative’ report and
recommendations to the Council which encouraged support for a possible two-year extension
of the ICTY’s mandate in order to achieve the goal of competing all proceedings and obtaining
the two remaining indictees, Ratko Mladić and Goran Hadžić. The report suggests that the
Council adopt methods to evaluate judicial performance after the ICTY’s term comes to an end.
It also calls on general support by the EU for domestic war crime trials and investigations, as well
as increased co-operation between judicial and prosecutorial bodies in the Western Balkans. 541
Stabilisation and Association Process
The EU also supports the ICTY through its Stabilisation and Association Process (SAP) which is
applicable to all Western Balkan countries. The SAP is an attempt to promote stability in the
region through a comprehensive policy framework with a view toward potential membership in
the EU Central and Eastern European Accession states. As part of the process, the EU enters into
Stabilisation and Association Agreements (SAAs) which are conditioned upon the country’s co-
operation with the ICTY. 542 These agreements are conditioned upon co-operation with the ICTY
and in fact, most agreements contain a clause specifically pertaining to such co-operation. For
Zupljanin by Serbian authorities”.
- On 15th July at approximately 0530 hrs at the request of the ICTY, EUFOR conducted an
operation at the residence of Liljiana Karadzic, in Pale, with the aim of establishing what links
and support the Karadzic family has with the PIFWC Radovan Karadzic, as well as identifying
asset ownership.
Available at:
http://www.euforbih.org/eufor/index.php?option=com_content&task=view&id=508&Itemid=5.
541 External Relations Briefing, 9-12 March 2009, Strasbourg plenary session, available at:
http://www.europarl.europa.eu/news/expert/briefing_page/50013-068-03-11-20090219BRI50012-09-03-
2009-2009/default_p001c018_en.htm. The report was not available online at the time of writing.
542 Declaration of the Zagreb Summit, available at:
http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a_country_join_the_
eu/sap/zagreb_summit_en.htm , Article 2.
148

example, when the SAA with Serbia was finally drafted in November 2007, Article 2 specifically
committed Serbia to full co-operation with the ICTY and Article 4 “reaffirm[ed] the importance
[…] attach[ed] to the implementation of international obligations, notably the full co-operation
with the ICTY.” 543 The SAA with Montenegro contains the same clause. 544 However, in some
cases, such as in the SAA with Croatia, there is no ICTY clause, 545 although it is clear from the
relevant Progress Reports, that co-operation is a condition of negotiations between the EU and
Croatia and the lack of co-operation was likely one of the reasons negotiations for an SAA were
so delayed. 546 Bosnia and Herzegovina involves a special circumstance in the context of the
Dayton Accords which were signed in Paris on 14 December 1995. Although there is no specific
ICTY clause in the SAA, the Dayton Accords stipulate that Bosnia and Herzegovina must fully co-
operate with the entities involved in the negotiation of the Accords or any body authorized by
the UN Security Council, including the ICTY. 547
543
Stabilisation and Association Agreement between the European Communities and their Member States
of the one part, and the Republic of Serbia, of the other part, available at:
http://ec.europa.eu/enlargement/pdf/serbia/key_document/saa_en.pdf.
544
Stabilisation and Association Agreement between the European Communities and their Member States
of the one part, and the Republic of Montenegro, of the other part, Articles 2 and 4, available at:
http://register.consilium.europa.eu/pdf/en/07/st11/st11566.en07.pdf.
545
Stabilisation and Association Agreement between the European Communities and their Member
States, of the one part, and the Republic of Croatia, of the other part, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:026:0003:0220:EN:PDF.
546
Croatia 2005 Progress Report, p 4, available at:
http://register.consilium.europa.eu/pdf/en/05/st14/st14296.en05.pdf . The EU statement that cooperation
was full was slightly misleading. In his report, the ICTY Prosecutor stated that “At this juncture,
the only remaining issue in the co-operation provided by Croatia to the ICTY is the transfer to The Hague
of Ante Gotovina, who was indicted on 8 June 2001 and has been at large ever since. The question to be
examined is whether Croatia is doing everything it can to locate, arrest and transfer this fugitive. This
assessment is based on over 130 reports that my Office received this year from the Croatian agencies
involved in the tracking of Ante Gotovina, on the nearly daily communications between my Office and the
Croatian State Attorney Mladen Bajic and on other contacts with Croatian and international sources.”
Assessment available at: http://www.un.org/icty/pressreal/2005/p1009-e.htm.
547
General Framework Agreement for Peace in Bosnia and Herzegovina, Annex IA, Article X, Dayton, Ohio
on November 21, 1995 (signed 14 December 1995).
149

The Progress Reports which are issued by the Council each discuss country progress in relation
to co-operation with the ICTY and detail any EU response to non-compliance. Responses have
ranged from mere statements of disapproval, to Member States refusing to sign SAAs until
compliance is reached. For example, negotiations with Serbia were suspended due to Belgrade’s
inability to arrest Ratko Mladić and transfer him to the Hague and were only re-opened in June
2007 once two other fugitives were captured and transferred.548 The November Progress
Report of that same year illustrated the relations between the EU and Serbia at the time
commenting that “With the exception of Serbia’s obligations to the International Criminal
Tribunal for the Former Yugoslavia, there are no major outstanding issues regarding Serbia’s
compliance with the Dayton/Paris Peace Agreement.”549 Despite this lack of compliance, the
agreement was initialled in November by the EU. However, two months later, Belgium and the
Netherlands made clear their intention not to sign the agreement until Serbia co-operated fully
with the ICTY, and the Netherlands froze those parts of a pre-accession agreement with Serbia
concerning trade relations until discussions could take place.550 Although the two countries
eventually signed the agreement in April 2008, “its application [was suspended] until another
unanimous decision is reached at the Council concluding that Serbia has completely satisfied
the criteria of full co-operation with the International Criminal Tribunal for the former
Yugoslavia.”551 The Netherlands has been committed to this issue and has refused to reactivate
the SAA despite the arrest and transfer to The Hague of Radovan Karadžić. The Netherlands is
looking for the arrest and transfer of all remaining fugitives before the SAA can apply.552
548
“EU/Serbia : EU Set to Resume SAA Negotiations with Serbia in June”, available at:
http://www.highbeam.com/doc/1G1-164443127.html.
549
Serbia 2007 Progress Report accompanying the communication from the Commission to the European
Parliament and the Council, pp 16-17, available at:
http://register.consilium.europa.eu/pdf/en/07/st14/st14997.en07.pdf.
550
Comments of Dutch foreign minister Maxime Verhagen, http://euobserver.com/9/26743.
551
European Commission Bulletin of the EU, Serbia, available at:
http://europa.eu/bulletin/en/200804/p127011.htm.
552
“Serbia to forge own EU path, despite Dutch veto”, available at:
http://www.ekathimerini.com/4dcgi/news/world_1KathiLev&xml/&aspKath/world.asp&fdate=18/09/2008.
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In 2003, the Commission declared Bosnia and Herzegovina’s co-operation with the ICTY as “less
than satisfactory”. 553 In spite of this conclusion, the EU did not take action, including suspension
of the negotiations toward the SAA. Five years later, after a stall in negotiations attributed not to
the lack of co-operation but to issues with the local police force, the EU signed the SAA. The EU
commented in its 2008 report that “cooperation with the International Criminal Tribunal for the
former Yugoslavia (ICTY), which is a key European Partnership priority, has continued to improve
and has reached a generally satisfactory level. Cooperation between ICTY and the State level and
Entity authorities is adequate at an operational level, and access to witnesses and archives has
been good”. The report noted, however, that Bosnie and Herzegovina needs to increase its
efforts to combat the networks supporting indicted war criminals. According to the ICTY,
Republika Srpska has “failed to take appropriate action to have Radovan Stankovic re-arrested
after his escape from prison there in 2007.” 554 It appears that the absence of pressure from the
EU prompted NATO to compensate in 2004 by conditioning membership in its Partnership for
Peace programme on ICTY co-operation. 555 Bosnia and Herzegovina joined the programme in
2006 but the then NATO Secretary General specially noted that entry into the programme does
not lessen the obligation of full co-operation with the ICTY. 556
553 Report from the Commission to the Council on the preparedness of Bosnia and Herzegovina to
negotiate a Stabilisation and Association Agreement with the European Union, p 11 (18 November 2003),
available at: http://register.consilium.europa.eu/pdf/en/03/st15/st15242.en03.pdf.
554 Bosnia and Herzegovina 2008 Progress Report accompanying the communication from the
Commission to the European Parliament and the Council, p 23 (5 November 2008), available at:
http://register.consilium.europa.eu/pdf/en/08/st15/st15526.en08.pdf.
555 Interview with Lord Ashdown, Bosnian High Representative, available at:
http://www.nato.int/docu/review/2004/issue4/english/interview_a.html. A 2003 document on EU-NATO
co-operation asserts that “The EU and NATO stress the obligation of full co-operation with ICTY, which
remains an essential element for progress towards the EU and NATO. The political scene and state
structures are still marred by the self-serving aspirations of criminals and extremists, as the assassination
of late Prime Minister Zoran Djindjic depressingly illustrated. Whereas the responsibility remains with
these countries, the EU and NATO are determined, within their respective framework, to continue assisting
them in their own efforts to overcome these problems.” Document available at:
http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/er/76840.pdf.
556 “Bosnia and Herzegovina, Montenegro and Serbia join NATO Partnership for Peace” available at:
http://www.nato.int/docu/update/2006/12-december/e1214a.htm.
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International Criminal Tribunal for Rwanda
The EU has supported the International Criminal Tribunal for Rwanda (ICTR) since its inception in
1994. While the majority of its support has been financial, the EU has also supported the
Tribunal and its mandate via various political statements of support. For example, in December
2000, the EU issued a statement concerning the ICTR’s financial status and potential reforms to
the budget aimed at improving efficiency and positive results. 557 In 2002, the EU Presidency
noted its “strong support for the International Criminal Tribunal for Rwanda” and stated that its
work, and that of the ICTY “has paved the way for the International Criminal Court” and “serves
as an example of the determination of the international community to combat impunity”. 558
Various other similar statements have been made by the EU concerning both the financial status
of the ICTR and its accomplishments over time. 559
In some of its statements, the EU has expressed “deep concern” at the difficulties experienced by
the ICTR because of the opposition of the Rwandan government and has urged co-operation
and information exchange with the Tribunal. 560 However, despite this concern and a stated
desire to place emphasis on strengthened collaboration with the ICTR, 561 there is no formal
bilateral agreements have been entered into between the EU and Rwanda.
557
EU Presidency Statement, ‘Financing of ICC for former Yugoslavia and Rwanda’ (6 December 2000),
available at: http://www.eu-un.europa.eu/articles/en/article_334_en.htm.
558
EU Presidency Statement, ‘ICT Report on Genocide in Rwanda’, (28 October 2002), available at:
http://www.eu-un.europa.eu/articles/en/article_1730_en.htm.
559
For example, see EU Presidency Statement, ‘The International Criminal Tribunal Rwanda’, (26 November
2001), available at: http://www.eu-un.europa.eu/articles/en/article_362_en.htm; EU Presidency Statement,
‘Financing of ICTY and ICTR’, (18 November 2002), available at: http://www.euun.europa.eu/articles/en/article_1785_en.htm.
560
ibid ‘ICT Report on Genocide’.
561
European Commission, ‘2007 Annual Operation Review Rwanda’ (Joint Annual Report 2006), available
at http://ec.europa.eu/development/icenter/repository/jar06_rw_en.pdf, at 6; Joint Annual Report 2002
Rwanda, in which the EU also outlines its financial support of the Gacaca process, available at:
http://ec.europa.eu/development/icenter/repository/rw_review_2003_en.pdf.
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In 2002, the EU took a more proactive role in the development of the ICTR’s mandate through
the creation of a Network of Contact Points regarding persons responsible for genocide and
crimes against humanity. 562 The Network is aimed at supporting and promoting Member State
co-operation in the fight against international crime and designates a contact point for war
crimes within the police and justice systems of each Member State. While the creation of the
Network is a positive and practical showing of support for the ICTR, EU support is much more
focused on the contribution of funds and the expression of support, whereas actual substantive
co-operation between the EU and ICTR is minimal and certainly not comparable to the
interaction between the EU and the ICTY. 563 It seems that with regard to co-operation with the
ICTR, the EU prefers to leave co-operation to its Member States, possibly in light of the fact that
several suspects remain at large within the EU’s borders and the process of apprehending them
and potentially trying them, is beyond the competence of the EU.
International Committee of the Red Cross
The EU has been a strong supporter of the International Committee of the Red Cross (“ICRC”),
together with its affiliated national organizations of the International Red Cross and the Red
Crescent movement. This is particularly so in the areas of humanitarian aid and the development
of international humanitarian law (“IHL”); the ICRC has been at the core of the development of
562 Council Decision 2002/494/JHA of 13 June 2002, setting up a European network of contact points in
respect of persons responsible for genocide, crimes against humanity and war crimes, available at:
http://europa.eu/scadplus/leg/en/lvb/l33175.htm.
563 For example, see Council Common Position 2004/694/CFSP of 11 October 2004 on further measures in
support of the effective implementation of the mandate of the International Criminal Tribunal for the
former Yugoslavia (ICTY) OJ L 315, 14.10.2004, p. 52–53, Article 1(1). In addition to legislative support of
the ICTY, the EU has assisted the Tribunal during its military operation, ALTHEA in Bosnia and
Herzegovina. The operation’s objectives included the provision of support to the ICTY including for the
detention of those individuals indicted for war crimes. See Press Release 6896/07 (Presse 43) 28 February
2007, available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/esdp/92992.pdf.
153

IHL since its inception following the second World War. It has also, in more recent times, been a
strong proponent in the development of human rights law. 564
Given the ICRC’s pivotal role in IHL, the EU’s increasing incorporation of IHL norms into its
actions, if not always explicitly, supports the fundamental objectives of the ICRC. In turn the ICRC
has had to respond to the increased activity of the EU in conflict resolution outside its own
jurisdiction to ensure that IHL is observed and respected by EU forces. A key action in this
regard taken by the EU was the adoption in 2005 by Member States of the “EU Guidelines on
Promoting Compliance with International Humanitarian Law”. The Guidelines outline
“operational tools” for the EU and its operating bodies to promote compliance with IHL. One of
the identified “means of action” by which the EU can promote IHL includes co-operation with
international bodies including the ICRC. The Guidelines state:
Where appropriate the EU should co-operate with the UN and relevant regional organizations
for the promotion of compliance with IHL. EU Member States should also, whenever appropriate,
act towards that goal as members in other organizations…The International Committee of the
Red Cross (ICR) has a treaty-based, recognized and long-established role as a neutral,
independent humanitarian organization, in promoting compliance with IHL. 565
The Guidelines have been welcomed by the ICRC as an important development in its
relationship with the EU. At the 7 th European Regional Conference of the International
Federation of Red Cross and Red Crescent Societies in 2007, the ICRC President noted the steps
taken by the EU towards the global promotion of the protection of IHL norms. 566 The President
noted that
564
For a detailed discussion of the ICRC’s role in the development of IHL and human rights law see
Forsythe, D “Human rights and the Red Cross in Historical Perspective” Human Rights Quarterly, Vol. 19
No. 3 (August 1997) pp 686 to 692.
565
See the European Union Guidelines on Promoting Compliance with International Humanitarian Law,
Official Journal of the European Union (2005/C 327/04), at 16(e).
566
Accessed July 2009 at http://www.icrc.org/web/eng/siteeng0.nsf/html/cooperation-statement-290607.
154

At the 2003 International Conference, the member States of the European Union made the
pledge to promote international cooperation of all political, military and humanitarian actors
with the objective of ensuring respect for international humanitarian law. The European Union
also declared its willingness to contribute to raising public awareness in relation to international
humanitarian law. No doubt that other States and National Societies should join in similar
commitments. The International Conference to be held in November will give them an
opportunity to do so.
The Guidelines on Promoting Compliance with International Humanitarian Law adopted by the
member States of the European Union in 2005, whose purpose is to set out operational means
of action for the European Union to promote compliance - also by third parties - with
international law, are very much in line with this pledge.
The ICRC is also directly employed by the EU in its disbursement of humanitarian aid on a global
scale. The EU, alongside the United States, has provided a great deal of funding to the
organization since its inception and particularly since the mid-1990s. 567 For example, in April
2009 the EU gave €2 million to the International Federation of Red Cross and Red Crescent
Societies to support the Federation’s Disaster Relief Emergency Fund. 568
The EU-ICRC relationship is, however, far more strategic than ad hoc payments and the giving of
aid. The Directorate-General for Humanitarian Aid (ECHO) of the Commission of the European
Community is the central body for the disbursement of the EU’s aid programmes and names the
ICRC as one of its partners. The agency provides “humanitarian assistance to the people affected
by conflicts or disasters, both natural and man-made, in third countries”. ECHO does not provide
aid or implement assistance programs itself, rather it is a donor to NGOs which have signed its
567 Forsythe, D “Human Rights and the Red Cross in Historical Perspective” Human Rights Quarterly Vol. 19
No. 3 (August 1997) pp 686 to 292, at p 687. See also Solana, J “EU Values in Action Around the World”
Foreign Policy No. 151 (Nov to December, 2005), pp6 to 7, at p 7.
568
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/543&format=HTML&aged=0&language
=EN&guiLanguage=en
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Framework Partnership Agreement (European NGOs), or international organizations, the latter
which includes the “Red Cross family”. The ICRC is, accordingly, one of the main bodies used to
distribute EU aid. 569 Funding is also provided to national Red Cross movements.
The arrangement for the disbursement of aid with the ICRC as a medium does not appear to
have affected the ICRC’s independence, evident by the ICRC’s active critique of EU humanitarian
aid policies. In Serbia, for example, the EU’s humanitarian aid program operated on a highly
selective basis, providing aid first and foremost to opposition-run municipalities, whilst it
simultaneously in the rest of the state applied a regime of strict sanctions. The ICRC argued
against this approach, stating that aid ought to be given “on the basis of need and irrespective
of political party affiliation”. 570
Finally, the expertise of the ICRC has been used as a resource by the EU as it develops its policies
in the areas of IHL, human rights law and international criminal law. For example in the course of
establishing and implementing its common position on the International Criminal Court, the
ICRC’s Advisory Service was invited in 2002 and 2003 to address the meetings of the Sub-Group
of the ICC of the Council of the European Union’s Legal Commission. 571
African Union
The EU operates a strategic Partnership with the African Union (“AU”), which is governed by the
European Council. Africa forms a high priority on the EU’s foreign policy agenda. 572 The
569
DG ECHO Annual Report 2008: Report from the Commission of the European Communities (Brussels)
(1.7.2009), at pp 3 and 9.
570
Chandler, D “The Road to Military Humanitarianism: How the Human Rights NGOs Shaped a New
Humanitarian Agenda” Human Rights Quarterly Vol. 23, No. 3 (August 2001), pp 678 to 700, p 700.
571
ICRC Biennial Report 2002 to 2003, National Implementation of Humanitarian Law, Advisory Service on
International Humanitarian Law. Accessed July 2009 at
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/p0851/$File/report-ICRC_002_0851.pdf.
572
See the Communication from the Commission to the Council and the European Parliament: One year
after Lisbon: The Africa-EU Partnership at work (Sec (2008) 2603; Brussels 17.10.2008). Accessed at
http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
156

Partnership operates at several levels, from niche working groups through the Committee of
permanent representatives, to the macro level of the General Affairs and External Relations
Council. The European Commission also assists in maintaining the Partnership in the area of
policy, whilst the European Parliament oversees the implementation of the Partnership overall. 573
There are several key documents which govern the operation of the Partnership. The terms of
the Partnership are defined in a strategy document signed by the relevant states in 2005. 574 The
underlying principle of the Strategy is to ensure that the EU works towards responsibility for all
programs being taken on by the AU itself, “strengthening the primary responsibility of African
governments for the issues in question”. The purpose of the strategic Partnership is
to take the Africa-EU relationship to a new, strategic level with a strengthened political
Partnership and enhanced cooperation at all levels. The Partnership will be based on a Euro-
African consensus on values, common interests and common strategic objectives. This Partnership
should strive to bridge the development divide between Africa and Europe through the
strengthening of economic cooperation and the promotion of sustainable development in both
continents, living side by side in peace, security, prosperity, solidarity and human dignity.
The Partnership has four main objectives:
� To address areas of common concern, including strengthening institutional ties and
addressing common challenges such as peace and security, environmental concerns and
migration and development.
� To strengthen and promote peace, security, democratic governance and human rights,
gender equality and sustainable economic development, with a view to ensuring that all
the Millennium Development Goals are met in African countries by 2015.
573 See, generally, the Africa-EU Partnership website, at http://africa-eu-Partnership.org/aueu/pages/templates/partner.jsp;jsessionid=54D351525C60257316C33AFE40A0FAE1?subkey=eu.
574 Entitled “The Africa-EU Partnership: a Joint Africa-EU Strategy”. Accessed at http://africa-eu-
Partnership.org/au-eu/pages/templates/partner.jsp?subkey=ed.
157

� To “jointly promote and sustain a system of effective multilateralism, with strong,
representative and legitimate institutions” including the reform of the UN and other key
international institutions.
� And, finally, the Partnership aims to empower non-state actors and promote safe
environments in which they can “play an active role in development, democracy building,
conflict prevention and post-conflict reconstruction processes”. 575
The second core document to the Partnership is the Lisbon Declaration which emerged from the
EU African Summit in Lisbon in December 2007. The Declaration re-affirms the commitment
made in the Strategy and provides a statement of intention for the Partnership, namely that it is
…resolved to build a new strategic political Partnership for the future, overcoming the traditional
donor-recipient relationship and building on common values and goals in our pursuit of peace
and stability, democracy and rule of law, progress and development. 576
The third key document is a significant step in the Partnership, building on diplomatic efforts to
date. The First Action Plan for the Implementation of the Partnership has now been established
for 2008 to 2010. The Plan provides for the implementation of the commitments made in the
Joint Strategy. The wider goal is for the EU to assist African countries to achieve the Millennium
Development Goals for 2015; in order to reach this aim, the Action Plan provides for smaller,
more concrete steps to ensure progress is made.
The Action Plan focuses on eight focus areas, including: peace and security; democratic
governance and human rights; trade, regional integration and infrastructure; the Millennium
Development Goals; energy; climate change; migration, mobility and employment; and science,
information society and space. Each of these goals form the basis for more specific Partnerships.
The AU-Africa Partnership on Peace and Security, for example, provides an objective for a “Joint
575 Above.
576 Accessed at http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
158

Strategy” to “cooperate in enhancing the capacity of Africa and the EU to respond timely and
adequately to security threats, and also to join efforts in addressing global challenges”. This
Joint Strategy provides for expected outcomes and specific activities, such as to hold
consultations between the AU Peace and Security Council and the EU Political and Security
Committee. Finally, “Joint Expert Groups” are to be set up to implement and co-ordinate each of
the eight Partnerships. 577 Leaders of the Partnership at the Lisbon Summit in 2007 stressed “the
importance of early progress and concrete deliverables” in the implementation of the Action
Plan, recognizing that “initial progress needs to be accelerated, broadened and consolidated”. 578
In practice, the effect of these statements and declarations at the macro level are implemented
by smaller actions. There is, for example, a permanent EU delegation at the AU, which is in place
to facilitate and co-ordinate EU policy and action in relation to the AU, provide advice and
support to the AU upon its request and maintain a political dialogue between the two bodies. 579
The creation of the delegation was seen as “an important political statement” by the EU; that is,
in order to be an effective contributor to the Partnership, it was recognized that the EU presence
had to be strengthened in the African region itself. 580
There are also regular meetings of the Africa-EU Ministerial Troika, with brings together input
from sector-specific ministerial Troikas. The most recent meeting, for example, took place in
Luxembourg in April 2009, within the framework of the EU Dialogue. The Troika consists of high
level representatives from both sides of the Partnership. The Troika allows the Partnership to
577
See the Communication from the Commission to the Council and the European Parliament: One year
after Lisbon: The Africa-EU Partnership at work (Sec (2008) 2603; Brussels 17.10.2008), at p 10. Accessed at
http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
578
See the Communication from the Commission to the Council and the European Parliament: One year
after Lisbon: The Africa-EU Partnership at work (Sec (2008) 2603; Brussels 17.10.2008). Accessed at
http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm, at p 10.
579
See, generally, http://www.africa-eu-Partnership.org/aueu/pages/templates/partner.jsp;jsessionid=81480EDA77C5780C453E38F25686ED2F?subkey=ed.
580
See Link!, the first newsletter of the EU Delegation to the African Union, accessed at
http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
159

espond to more immediate threats and global changes affecting the operation of the
Partnership and its Action Plan, such as the current global economic crisis; specific security
situations as that in the Sudan; and coups d’etat in African nations including, for example,
Madagascar, Guinea and Zimbabwe. 581 There also exists a separate Joint EU-AU Task Force to
monitor the development of and adherence to the Action Plan.
Specific documents emerging from the thematic areas again narrow the focus on specific steps
the Partnership is taking to achieve the Action Plan goals. For example, the Africa/EU Declaration
on Climate Change was the product of the 11 th Ministerial Meeting of the Africa and EU Troikas
in November 2008. 582 The Declaration declares the commitment of the Partnership to the UN
Framework Convention on Climate Change and the Kyoto Protocol. The Declaration identifies
common actions for the Partnership, such as focusing on capacity building of African countries
to provide for climate change; identifying investment and financing possibilities in support of
adaptation and migration initiatives in Africa; and strengthening African capacities to better
exploit opportunities in the carbon market.
Funding of course is a key part of the Partnership, with the EU providing significant levels of
funding to the operations of the AU. The First Action Plan envisages that the Partnership will be
financed out of existing or new financial resources, including the 10 th European Development
Fund, including its facilities and trust funds; the relevant EU budgetary instruments (including
the European Neighbourhood Policy Instrument and the Development Cooperation Instrument);
individual states; contributions from interested third parties; international financing institutions;
international organizations; and private sector investments.
581 See 12 th Africa-EU Ministerial Troika Meeting (Luxembourg, 28 April 2009), accessed at
http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
582 Accessed at http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
160

In many ways, the Partnership is in its early stages of development, and it remains to be seen
how the complex co-ordination of policy at the ministerial level will translate into practice by the
end of the first Action Plan, particularly with reference to the more challenging goals such as the
achievement of the Millennium Development Goals by 2015. The Partnership’s framework is a
positive one, and concrete results have begun to emerge. In Somalia, for example, counter-
piracy efforts within the jurisdiction of the Framework have been considered successful in
bringing a greater sense of security to the waters off the coast of the country. There are several
facets to this success. The naval operation of the EU in the area has been extended, following its
initial success from 2008, to 2010. In addition, the European Commission has contributed €35.5
million to the African Union Mission in Somalia, after providing its full political support to the
Transitional Federal Government of Somalia. Substantial financial support has also been
provided to build Somalia’s security institutions, primarily through the provision of the UNDP’s
police training program. 583 All these steps have culminated in increased security of the region
under the guiding framework of the Partnership.
United Nations
As discussed above in relation to the CFI cases of Kadi and Yusuf, Article 11(1) TEU binds the
Community to the UN Charter. Such case law has confirmed the Community’s duty to adopt
provisions necessary to aid the Member States in the fulfilment of their Charter obligations. 584
Furthermore, Article 307(1) states that in areas where the EC assumed competence that
previously belonged to the Member States through an international agreement, the EC becomes
bound by the provisions of that agreement. However, the EU Member States and the institutions
share the values as set forth in the Universal Declaration of Human Rights and are committed to
promoting those values globally. 585
583 See Link!, the first newsletter from the European Union Delegation to the African Union, at p 5.
Accessed at http://ec.europa.eu/development/geographical/regionscountries/euafrica_en.cfm.
584 Kadi (n 67) 198 and Yusuf (n 68) 254.
585 United Nations, ‘Improving Lives: Results from the partnership of the United Nations and the European
Commission in 2006’ (2007) 10.
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The EU has been a long-time partner to the UN both financially and in terms of conflict
prevention and peacekeeping. In 2007, the EU provided 38% of the UN’s regular budget and
54% of Official Development Assistance. 586 Since the European Commission first established an
information office in New York, co-ordination between the two bodies has been increasing, with
an estimated 1,300 meetings taking place each year in the New York office and 1,000 in
Geneva. 587
Several documents relate to the partnership between the EU and the UN. For example, their
partnership is guided by the 2000 UN Millennium Declaration and eight Millennium
Development Goals (MDGs) which set targets for the reduction of poverty by 2015 and are
based on basic human rights. 588 In 2001, the Commission issued its Communication on “Building
an effective partnership with the United Nations in the fields of Development and Humanitarian
Affairs” 589 that, along with its 2003 Communication on “The European Union and the United
Nations: The Choice for Multilateralism”, 590 form the structure for co-operation based on policy
dialogue, greater co-operation in the field, better crisis management and prevention and
strategic partnerships between the Commission and certain UN organizations. 591 Also in 2001, a
document entitled “EU-UN cooperation in conflict prevention and crisis management” was
developed by the then Swedish presidency which identified three themes for EU-UN
586
J Wouters, ‘The United Nations and the European Union: Partners in Multilateralism’, EU Diplomacy
Papers 4/2007 (Collège d’Europe) 4.
587
ibid 7.
588
United Nations, ‘The partnership between the UN and the EU: The United Nations and the European
Commission working together in Development and Humanitarian Cooperation’ (2006) 7. The Goals are as
follows: (1) eradicate extreme poverty and hunger; (2) achieve universal primary education; (3) promote
gender equality and empower women; (4) reduce child mortality; (5) improve maternal health; (6) combat
HIV/AIDS, malaria and other diseases; (7) ensure environmental sustainability; and (8) develop a global
partnership for development.
589
COM(2001) 231 final, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0231:FIN:EN:PDF.
590 COM(2003) 526 final, available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0526:FIN:EN:PDF.
591 UN ‘Improving Lives’ (n 585) 12-3.
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cooperation: (1) conflict prevention; (2) civilian and military aspects of crisis management; and
(3) particular regional issues. 592
Co-operation between the two bodies was further enhanced through the 2003 Joint Declaration
on UN-EU Cooperation in Crisis Management 593 which identified areas where further co-
operation should be explored: planning, training, communication and best practices. The
conclusions of the Joint Declaration were based on experiences with recent developments in EU-
UN co-operation in crisis management. Also in 2003, the UN Deputy Secretary and European
Commissioner for Development and Humanitarian Aid signed the Financial and Administrative
Framework Agreement (FAFA) 594 which is a procedural document applicable to funding from the
EC to the UN. It originally applied only to agreements with the Secretariat and UN funds and
programmes such as UNICEF and UNDP. However, since its inception, many specialized agencies
have consented to the application of the agreement thus easing co-operation through the
application of a single set of rules. 595 The FAFA focuses on results and provides that any actions
to which the EC contributes should identify objectives and indicators of achievement. It also
provides for an EU representative to participate in the monitoring and evaluation of
performance missions. The EU adopted that same year the European Security Strategy which
supported a policy of comprehensive security and named the UN as “the fundamental
framework for international relations”. 596 The Strategy identifies several key threats, such as
terrorism, proliferation of weapons of mass destruction, the failure of states and organised crime
592
‘EU-UN cooperation in conflict prevention and crisis management’, Annex to the Presidency
Conclusions, Göteborg European Council, June 2001.
593
Available at: http://www.consilium.europa.eu/uedocs/cmsUpload/st12730.en03.pdf.
594
Available at: http://ec.europa.eu/development/icenter/repository/EC-
UN%20FAFA%20agreement%20signed%2029-04-2003_en..pdf.
595
J Wouters (n 586) 14.
596
‘A Secure Europe in a Better World: European Security Strategy’ 12 December 2003, p 9, available at:
http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf.
163

and discusses its enhanced support for the UN in its response to threats of international peace
and security. 597
There are several instances of cooperation between the EU and UN. The two bodies have
participated in crisis operations where the EU has continued operations initiated by the UN. For
example, the EU Police Mission assumed the peacekeeping operation in Bosnia-Herzegovina
from the International Task Force so that the UN could redirect its resources. The EU has also
supported UN troops in the DRC and in Kosovo as part of the peace building process. 598 In
addition to its peacekeeping role, the EU also aids the UN in its governance missions by working
to enable elections in third countries, such as the assistance it provided to the UN in the creation
of an Independent Electoral Commission in Iraq and its support in Congo for the distribution of
voter registration kits. 599 The EU has provided capacity-building support to parliaments in
Afghanistan, Georgia, Ethiopia and Laos, 600 and co-ordinated projects seeking to provide
protection to and increase respect of women and girls in Iran. 601 The UN has assisted the EU in
ensuring the protection of refugees in the development of its asylum and border control
legislation. 602 Landmine clearance has also been a priority for the EU-UN partnership and in
2005, the EU supported clearance of 18 million square metres of land in Albania, Angola,
Armenia, Cyprus, Mozambique, Sudan and Sri Lanka. 603 The partnership has also worked to
provide relief in times of natural disaster. For example, in 2005, the EU and the UN provided 40
million natural disaster victims with food after the tsunami which affected the Indian Ocean
region, and the earthquake in Pakistan and India. 604
597
ibid 3-5, 11.
598
J Wouters (n 586) 16-7.
599
United Nations ‘Partnership’ (n 588) 15-6.
600
ibid 16.
601
ibid 20.
602
United Nations ‘Improving Lives’ (n 585) 25.
603
United Nations ‘Partnership’ (n 588) 32-3.
604 ibid 37.
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The partnership between the EU and the UN is ever-increasing and with the development of the
Millennium Development Goals, the two bodies will undoubtedly be working together even
more closely to achieve their 2015 targets. It is important that they co-ordinate closely and
continue to establish patterns of effective co-operation through the development of uniform
procedures in order to deliver the aid they provide in the most effective way possible. It appears
that they are in fact doing this, and it will be interesting to see their progress toward
achievement of the Millennium Development Goals.
North Atlantic Treaty Organization
The TEU and ESDP clearly establish NATO’s primacy in collective self-defence and crisis
management. Article 17(1) 605 , paragraph 2, requires that respect be shown to the obligations of
Member States under NATO and requires that Member State defence policy be compatible with
the NATO regime. 606 The EU is prohibited from counteracting concrete NATO decisions, for
example, if NATO has firmly decided to act and has begun crisis management operations, the EU
will not be able to use any troops that have been assigned to the NATO operations, and would
not be allowed to make decisions that require withdrawal of troops from a NATO operation
without consent from the Alliance.
NATO also has a right of first refusal in ESDP declarations. At the EU Helsinki Summit in 1999, 607
the Union made its first steps toward the development of a policy on the use of an EU military
force. 608 The Council highlighted its policy goal to conduct EU-led operations only where NATO
605 Article 17 reads, “[t]he policy of the Union in accordance with this Article shall not prejudice the specific
character of the security and defense policy of certain Member States, which see their common defence
realized in the North Atlantic Treaty Organization (NATO), under the North Atlantic Treaty and be
compatible with the common security and defence policy established within that framework.”
606 This is reiterated in A Baggett, ‘The Development of the European Union Common Defense and its
Implications for the United States and NATO’, 31 Ga J Int’l & Comp L 355, 375 (2003).
607 The conclusions from this Summit are no longer available online.
608 Dr. Javier Solana, the EU’s High Representative for the Common Foreign and Security Policy,
highlighted the importance of developing an EU military force when he said, “The development of an
effective ESDP is an important contribution. It will give us the ability, where appropriate and whenever
165

as a whole is not engaged. The EU can only use ESDP as a framework for military operations if
NATO has agreed to it, or where NATO is unwilling to act in a manner consistent with European
policy, or is uninterested in acting. However, the conclusions of the Summit are not legally
binding on the Member States.
According to the EU-NATO Framework for Permanent Relations, 609 in the event of an EU-led
operation that makes use of NATO assets and capabilities, three possible arrangements (called
“Berlin Plus arrangements”) may occur:
• The EU can have “assured access” to NATO’s planning capabilities, where NATO as
a whole is uninvolved in the matter (this means that NATO will make a
contribution to the work carried out by EU military staff in its determination of its
military strategic options);
• NATO European command options will be made available by NATO for an EU-led
military op; and
• The EU may require use of NATO assets and capabilities (these will necessitate
separate agreements for a given operation). 610
The Council also emphasized its commitment to cooperation and consultation with non-EU
countries and NATO:
[t]he Union will ensure the necessary dialogue, consultation and cooperation with NATO
and its non-EU members, other countries who are candidates for accession to the EU as
well as other prospective partners in EU-led crisis management, with full respect for the
necessary to show that the Union is not prepared to stand idly by in the face of crises. Nor always let
others shoulder responsibility” (European Union in the U.S.: European Security and Defense Policy,
available at: http://www.eurunion.org/legislat/Defense/esdpweb.htm as referenced in Baggett, (n 606)
364.
609 Available at: http://consilium.europa.eu/uedocs/cmsUpload/03-11-
11%20Berlin%20Plus%20press%20note%20BL.pdf/.
610 This information was taken from Chapter 5 of the same bound book, p 130.
166

decision-making autonomy of the EU and the single institutional framework of the
Union.
Such cooperation and consultation would ensure that if any EU-led operations were to take
place that would make use of NATO assets and capabilities, non-EU NATO countries could
participate if they desired to do so. This is also the case when NATO assets are not being
utilized.
It has been suggested that the EU support of NATO will strengthen the alliance rather than
weaken it. 611 A European military force will enable Europe to make a greater contribution to
NATO and be better equipped to handle responses to crises that the United States does not
choose to pursue. In fact, NATO explicitly supports a stronger Europe. 612 This can especially be
seen via the discussion above regarding Berlin Plus arrangements under which EU coalitions
may be given access to NATO assets and capabilities. It is believed by some that a stronger EU
military programme makes the EU a “stronger and more reliable partner” for NATO. 613
Comments
Undoubtedly the EU has offered great support to these institutions in its external relations
policy. Such support is illustrated in its general legislation and specific agreements with other
countries, and is also traceable in its budget. However, when it comes to implementing that
policy, the EU does not put much pressure on defaulting countries, specifically in relation to the
ICTY. In order to effectively achieve its goal of full cooperation, the EU should identify specific
means of putting pressure on these countries that goes beyond mere suspension of
negotiations. Perhaps focusing on trade-related pressure would be the most effective, as in the
case with the Netherlands and Serbia, discussed above. It is important for the EU to gain
611 A Baggett, supra n 4 at 378.
612 Id at 379.
613 Id.
167

consensus about its policy and a will to put the necessary pressure on those states which
consistently get in the way of its execution.
Agreements with Non-EU Member States
Development co-operation
The EU often enters into agreements with third states through development co-operation. Title
XX TEC was inserted into the Treaty when the TEU entered into force and concerns the
complementary nature of Community policy in development co-operation to Member States’
own national policies for co-operation with third countries. 614 This means that development co-
operation is a parallel competence, a fact which was confirmed by the ECJ in 1994. 615 The EC
traditionally entered into association agreements with countries seeking membership in the
Community. The success of such agreements led to their extension to the sphere of
development co-operation. 616 These agreements are concluded for many reasons. For example,
as discussed in the context of the ICTY, they were concluded as part of the unique Stabilisation
and Association Process in the Balkans. But they are also negotiated for purposes such as the
development of political, trade, social, cultural and security links. In our study, we evaluated
those countries with which the EU has entered into association agreements that have yielded
examples of Member State or EU practice with regard to allegations human rights violations by
the third countries. Specifically, we have considered Cambodia, Israel, Laos, Tunisia, Uzbekistan,
Vietnam, and a case study from Turkey in relation to its EU Accession Partnership Agreement.
We also consider briefly trade agreements entered into by the EC which contain human rights
provisions.
614 Article 177.1 TEC.
615 Case C-316/91 Parliament v Council [1994] ECR I-625.
616 P Eeckhout (n 42) 106.
168

Respect for human rights and fundamental freedoms is one of the general principles of the EU.
In light of this, the Community decided in 1995 to insert a clause into any new trade, co-
operation and association agreement (of a general nature) making respect for human rights and
fundamental freedoms an essential component of its relations with third countries. 617 The TEC
provisions on development co-operation specifically indicate that it must respect human
rights. 618 The clauses generally contain standard wording with little variation depending on the
context. Typically, it will include language such as the following which is from the EU-Cambodia
Cooperation Agreement: “Respect for the democratic principles and fundamental human rights
established by the Universal Declaration on Human Rights inspires the internal and international
policies of the Community and of Cambodia and constitutes an essential element of this
Agreement.” 619 Similar wording is used in the agreement with Israel (Article 2), Laos (Article 1),
Tunisia (Article 2), Uzbekistan (Article 2), and Vietnam (Article 1). 620
These agreements may also contain a suspension human rights clause discussing the parties’
obligations in the event of a breach of human rights obligations. In most cases, the clause does
not specifically refer to human rights. For example, in the agreement with Laos, one of the
conditions for non-execution of the agreement is “violation of essential elements of the
Agreement set out in Article 1” which of course, as discussed above, is the human rights
clause. 621 In the agreement with Tunisia, paragraph one of the suspension clause reads, “The
Parties shall take any general or specific measures requires to fulfil their obligations under the
Agreement. They shall see to it that the objectives set out in the Agreement are attained.” 622
617
‘The EU and Human Rights’ p 2, available at: http://ec.europa.eu/external_relations/un/publ/pack/7.pdf.
618
Article 177.2 TEC.
619
Cooperation Agreement between the European Community and the Kingdom of Cambodia,
19/10/1999 L269 p 18, Article 1.
620
To read the clauses, please see “Inventory of Agreements Containing the Human Rights Clause”,
European Commission External Relations, Treaties Office, available at:
http://ec.europa.eu/world/agreements/viewCollection.do?fileID=25024.
621
Cooperation Agreement between the European Community and the Lao People’s Democratic Republic,
05/12/1997, L334 p 15 (Article 19).
622
Euro-Mediterranean Agreement establishing an association between the European Communities and
169

Other agreements contain similar clauses: Cambodia (Article 19), Israel (Article 79), and
Uzbekistan (Article 95).
It is clear that the respect of human rights is a condition for the maintenance of relations
between the EU and these third countries. However, even in cases where a country’s respect for
human rights is in question, the suspension clauses are not invoked. Rather, the EU favours a
more measured approach focusing on open dialogue and communication in order to promote
respect for human rights. For example, in its relations with Israel and in light of Israeli troops’
invasion of the Palestinian autonomous territories, the Council was asked whether it would
consider taking action against the Israeli Government and suspending the cooperation
agreement. 623 The Council declined to suspend the agreement and concluded that co-ordinated
international action based on UNSCRs 242 and 338 and the principle of land for peace would
offer the best solution. 624 The Council also disregarded a European Parliament Resolution calling
on the Commission and the Council to suspend the EU-Israel Mediterranean Association
Agreement. 625 Similarly, in its relations with Tunisia, the Commission has consistently opted not
to suspend the Association Agreement, noting that
The chief consequence of suspending the Association Agreement, quite apart from the
fact that it would take a unanimous decision by the Council, would be to deprive the EU
of a regular political dialogue with Tunisia and compromise cooperation between
Tunisia and the EU, with its beneficial effect on the development of Tunisian society as a
whole. 626
their Member States, of the one part, and the Republic of Tunisia, of the other part (and protocols),
30/03/1998, L97 p2 (Article 90).
623
Parliamentary Questions, 18 April 2002, by Alexandros Alavanos to the Council, available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2002-
1108+0+DOC+XML+V0//EN&language=EN.
624
Reply, 30 September 2002, OJ C 309 E, 12/12/2002 (p. 85), available at:
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2002-1108&language=EN.
625
European Parliament resolution on the Middle East, P5_TAPROV(2002)0173, para 8, available at:
http://www.bo.cnr.it/www-sciresp/OLD/Bacheca_OLD/pdf00002.pdf.
626
Joint answer to Written Questions E-2526/02 , E-2597/02 and E-2629/02 given by Mr Patten on behalf
170

Statements of condemnation have also been an approach taken by the EU. When a European
Member of Parliament and four activists were given suspended two-year sentences and ordered
to be deported from Laos for mounting a pro-democracy demonstration, the European
Parliament issued a statement condemning the “arbitrary arrests and the attitude of the Laotian
authorities” and stated that “this serious violation of democratic principles should be considered
as failure to comply with the cooperation agreement between the European Community and
Laos”. 627 However, when asked whether the Commission had any plans to suspend the
agreement, the Commission replied that suspension should be considered a last resort because
it could potentially negatively affect those whose rights were violated. 628
When the Commission and Council were questioned over 15 times about potential plans to
suspend aid under the 1996 EC-Vietnam Cooperation Agreement in response to the arrest of
religious leaders and human rights petitioners, as well as the repression of the Montagnards, an
ethnic minority, they consistently refused and insisted that “…only a combination of dialogue
and cooperation can contribute to an improvement of the human rights situation in Vietnam.” 629
However, in its more recent negotiations with Vietnam for a new Partnership and Cooperation
Agreement, human rights have been a prominent concern of the EU. An October 2008
resolution of the European Parliament concerning the potential agreement focused on the
human rights clause in Article 1 of the 1996 agreement and specifically called on the
Commission and Council to raise the need for Vietnam to cease its violations of human rights
of the Commission, available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-
2002-2629&language=EN.
627
EU Bulletin 11/2001 on Human Rights 2/4 Actions Outside the European Union: Laos 1.2.2, available at:
http://europa.eu/bulletin/en/200111/p102002.htm.
628
Parliamentary Questions, 22 August 2003, Answer given by Mr Patten on behalf of the Commission,
available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2003-
2432&language=EN.
629
Parliamentary Questions, 21 January 2004, Answer given by Mr Patten on behalf of the Commission,
available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2003-
3732&language=EN.
171

and democracy before finalizing the new agreement. 630 The resolution discussed several
specifics, including Vietnam’s active co-operation with UN human rights mechanisms, the
immediate release of those imprisoned for their peaceful expression of political or religious
beliefs, and the repeal of Vietnamese laws that criminalise dissent and certain religious activities
based on ‘national security’. 631 At the time of writing, it is unclear whether any progress has been
made in this regard during the negotiations for the agreement.
Relations between the EU and Cambodia have been called into question numerous times under
the framework of the EU-Cambodia Cooperation Agreement and in relation to Cambodia’s
mishandling of the Cambodia-Vietnam refugee crisis of 2002. The possibility of suspending the
agreement was raised by MEPs several times in light of Cambodia’s lifting of immunity for
opposition party politicians and increased persecution of journalists. 632 The Commission’s
preferred approach to this situation is “to encourage and support continued progress on human
rights and democratisation, and to raise concerns where abuses occur, in the framework of the
international human rights instruments.” 633 This approach has been said to be the same “as it is
towards all countries in the region”. 634
In our research, there was only one instance where action was taken against a violating country.
When Uzbekistan violated its Partnership and Cooperation Agreement it signed with the EU in
630 European Parliament resolution of 22 October 2008 on democracy, human rights and the new EU-
Vietnam Partnership and Cooperation Agreement, 2008-10-22, P6_TA(2008)0514.
631 ibid para 3.
632 See, eg, Parliamentary Questions, 17 August 2004, Written question by Marco Pannella (ALDE) to the
Commission, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+P-
2004-1827+0+DOC+XML+V0//EN&language=EN.
633 Communication from the Commission to the Council and the European Parliament: The European
Union's Role in Promoting Human Rights and Democratisation in Third Countries, COM(2001) 252 final,
8.5.2001.
634 Debates, 23 October 2003, Annex: Questions to the Commission, Question no 77 by Marco Panella, on
the Subject: Turning back of Montagnard refugees by the Kingdom of Cambodia, available at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20031023+ANN-
01+DOC+XML+V0//EN&query=QUESTION&detail=H-2003-0572.
172

1996 by allowing its Interior Ministry and National Security Service troops to fire into a crowd of
protestors on 13 May 2005, the Council at first “strongly condemned the excessive,
disproportionate and indiscriminate use of force by the Uzbek security forces” and “urgently
called on the Uzbek authorities to honour their international commitments to democracy, the
rule of law and human rights.” 635 It also expressed its “deep regret at the failure of the Uzbek
authorities to respond adequately to the United Nations’ call for an independent international
enquiry” and stated that “[d]epending on their response, the Council would consider further
steps.” 636 As time went on, it became clear that the Uzbek authorities were not going to co-
operate and in September of 2005 the EU sent its Special Representative for Central Asia to try
and resolve the situation. After the failure of this mission, the Council decided on 3 October
2005 to take action. It (1) imposed an embargo on exports to Uzbekistan of arms, military
equipment and other equipment that might be used for internal repression; (2) implemented
restrictions on admission to the EU aimed at those individuals directly responsible for the
indiscriminate and disproportionate use of force in Andijan; and (3) suspended all technical
meetings under the Partnership and Cooperation Agreement. 637 One month later, the Council
increased its restrictive measures by prohibiting the sale, supply, transfer or export, directly or
indirectly, of equipment which might be used for internal repression, as well as the provision of
technical or financial assistance relating to such equipment, to any person, entity or body in, or
for use in, Uzbekistan, whether or not the equipment is of Community origin. The prohibition
also applies to equipment and services related to military activities. 638 With the exception of the
ban on technical meetings, these restrictions were renewed in 2006 and 2007. In October 2008,
the Council dropped several travel prohibitions after improvements in the human rights
situation.
635
Bulletin EU 5-2005 Uzbekistan 1.6.32. Council conclusions on Uzbekistan, available at:
http://europa.eu/bulletin/en/200505/p106032.htm.
636
ibid.
637
Council conclusions on Uzbekistan, Bulletin EU 6-2005, 1.6.44, available at:
http://europa.eu/bulletin/en/200506/p106044.htm.
638
Council Regulation (EC) No 1859/2005 imposing certain restrictive measures in respect of Uzbekistan.
173

Turkey has benefited from an EU Accession Partnership Agreement which, among other things,
establishes those conditions upon which Turkey’s accession rely. The Partnership was
established in 2001 639 and has been revised in 2003 640 , 2006 641 and 2008 642 . One criterion of the
partnership is that Turkey abide by the Copenhagen Criteria as established by the Copenhagen
European Council of 21 and 22 June 1993. The Copenhagen Criteria requires a candidate State
to have “achieved stability of institutions guaranteeing democracy, the rule of law, human rights
and respect for and protection of minorities”. 643 In the case of Korkmaz, a group of natural and
legal persons, describing themselves as “a coalition of [non-governmental organisations] and
Turkish citizens” sought the annulment of a Commission report concerning Turkey’s progress
towards accession and an alleged violation of the Copenhagen Criteria. 644 Although the case was
eventually dismissed on procedural grounds, it is a helpful illustration of the Commission’s
reaction to allegations of infringement.
The applicants in the case contended in a letter to the Commission dated 2 July 2003 that
Turkey’s involvement in the Baku-Tbilisi-Ceyhan Pipeline Project (hereinafter ‘BTC Project’)
breached its pre-accession criteria in that it failed to adhere to the Copenhagen Criteria
concerning human rights and the respect for and protection of minorities. 645 The Commission
replied noting that it would continue to monitor the human rights situation associated with the
BTC project. A short while later, the Commission adopted its Regular Report on progress made
639
Council Decision 2001/235/EC of 8 March 2001 on the principles, priorities, intermediate objectives and
conditions contained in the Accession Partnership with the Republic of Turkey.
640
Council decision 2003/398/EC of 19 May 2003 on the principles, priorities, intermediate objectives and
conditions contained in the Accession Partnership with Turkey.
641
Council Decision 2006/35/EC of 23 January 2006 on the principles, priorities and conditions contained
in the Accession Partnership with Turkey.
642
Council Decision 2008/157/EC of 18 February 2008 on the principles, priorities and conditions
contained in the Accession Partnership with the Republic of Turkey and repealing Decision 2006/35/EC.
643
European Council in Copenhagen 21-22 June 1993, Conclusions of the Presidency, p 14, available at:
http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/ec/72921.pdf.
644
Case T-2/04, Cemender Korkmaz, Corner House Research and The Kurdish Human Rights Project v
Commission of the European Communities ECR [2006] II-0032..
645
They also alleged failure to adopt acquis communitaire but as that does not have direct relevance for
our purposes, it will not be discussed.
174

y Turkey towards accession. 646 In its overall assessment of progress in relation to the
Copenhagen Criteria, the report concluded that Turkey had made “impressive legislative efforts
which constitute significant progress towards achieving compliance with the Copenhagen
political criteria” merely noting a few problem areas for the country. 647 There was no reference
to the withdrawal of assistance in light of any breach of the criteria. The applicants in the case
saw this as a failure to make a recommendation to the Council regarding pre-accession
financing and sought the annulment of the Regular Report or alternatively, a decision that the
Commission had failed to act. They also asked that the Commission propose to the Council that
pre-accession financing be frozen pending the resolution of Turkey’s failure to comply with
accession criteria.
The Court of First Instance dismissed all the applicants’ claims for procedural reasons and
ordered them to pay the costs. Specifically, the CFI held that the Commission letter implying a
decision not to take action was not a measure against which an action may be brought under
Article 230 TEC, as it was not intended to have binding legal effect. 648 It went on to find that the
applicants had no standing to challenge the Commission’s alleged failure to act as under Article
232 TEC, applicants may only challenge a failure to adopt a measure intended to produce
binding legal effects capable of affecting their interests by bringing about a distinct change in
their legal position. 649
This case illustrates the Commission’s typical approach to allegations of human rights violations:
wait and see. The Commission rarely chooses to interrupt the dialogue between the EU and
third countries, especially where the relationship has existed for a lengthy time period. Rather,
the Commission prefers to monitor the situation and pay close attention to those areas in which
646 Commission 2003 Regular Report on Turkey’s progress towards accession, available at:
http://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/rr_tk_final_en.pdf.
647 ibid s 1.6.
648 Korkmaz (n 644) paras 38-45.
649 ibid paras 58-60.
175

allegations have been made. The case also demonstrates the limited capacity for individuals to
challenge EU relationships with third states where violations of HR or IHL may have occurred.
Trade agreements
The TEC provides the EC with the authority to conclude international trade agreements with
third states in order to further the common commercial policy. 650 These agreements are strictly
within the competence of the EC and so are not entered into by the EU or the Member States
individually. These agreements often include human rights clauses and suspension human rights
clauses similar to those discussed above. 651 The EC has concluded trade agreements with
countries such as Albania, Macao, Mongolia, South Africa, the Palestine Liberation Organization,
Democratic People’s Republic of Korea, Lebanon and Ukraine. However, not all of these
agreements contain suspension human rights clauses; those that do are South Africa,
Democratic People’s Republic of Korea and Lebanon.
In 1999, the EC entered into an Agreement on Trade, Development and Cooperation with South
Africa which contains both a human rights clause and a suspension clause making the respect
for human rights and fundamental freedoms an essential element of the Agreement. 652
However, despite numerous incidents of alleged human rights violations, the suspension clause
has never been invoked; rather, the Commission deals with allegations of violation via dialogue
and engagement. After a number of threats to freedom of press with the censure of the editor
of the Sunday Times, the Commission expressed “some concerns” over the threats’ potential to
650 Article 133.1 TEC.
651 Article 181a.1 TEC in the area of economic, financial and technical cooperation with third countries
provides that “Community policy in this area shall contribute to the general objective of developing and
consolidating democracy and the rule of law, and to the objective of respecting human rights and
fundamental freedoms.”
652 Agreement on Trade, Development and Cooperation between the European Community and its
Member States, of the one part, and the Republic of South Africa, of the other, 04/12/1999 L311, Articles 2
and 3. Available at:
http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&
redirect=true&treatyId=378.
176

undermine the democracy and human rights, but took the view that “on the whole, the media
situation in South Africa remains good. The print and broadcast media operate in a
fundamentally free environment and the judiciary is a strong defender of the freedom of
expression.” 653 The Commission did, however, refer to the Agreement when it stated that it “will
not hesitate to bring the subject of freedom of expression to the table whenever it feels this is
required”. 654 In relation to the humanitarian crisis in Zimbabwe, the Commission has been a bit
more stern, but has still not invoked the suspension clause or taken any action such as trade
sanctions, although the plight of the Zimbabweans has been discussed numerous times during
Parliamentary debates. While not directly citing South Africa as a cause of the crisis, the Council
has acknowledged that South Africa is “part of the key to resolving the problems in Zimbabwe”
and believes that the maintenance and strengthening of a mutual understanding of the issues
should be the main priority. 655 The Commission supports this position and is focusing on the
role that South Africa can play in bringing about a resolution to the situation. 656
The situation with South Korea is similar. The EC and Democratic People’s Republic of Korea
entered into the Framework Agreement for Trade and Cooperation in 2001 which contains both
types of human rights clauses. 657 In response to the persecution of Jehovah’s Witnesses who
653
Answer to Written Questions E-5465/07, E-5467/07 and E-5468/07, given by Mr Michel on behalf of
the Commission, available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2007-
5468&language=EN.
654
ibid.
655
European Parliamentary Debates, Answer to Oral Question H-0850/03 given by Minister Roche,
available at:
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20040211&secondRef=ITEM-
007&language=EN#3-183.
656
Answer to written questions E-2469/08, E-2556/08 and E-2557/08, given by Mr Michel on behalf of the
Commission, available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2008-
2557&language=EN.
657
Framework Agreement for Trade and Cooperation between the European Community and its Member
States, on the one hand, and the Republic of Korea, on the other hand - Joint Declarations - Joint
Interpretative Declaration concerning Article 23, 30/03/2001, L90 (Articles 1 and 23), available at:
http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&
redirect=true&treatyId=347.
177

objected to compulsory military service on conscientious grounds, the Commission stated that it
would regularly monitor the situation through its co-operation with Democratic People’s
Republic of Korea and follow any developments such as the possible drafting of new legislation
introducing a civilian alternative for military service. 658 The Commission displayed a similar
reaction to a report by the World Federation of Trade Unions claiming that the government of
South Korea was denying workers the right to join workers’ and trade union organizations using
violence and claiming that such membership was illegal. In addition to a statement that the
Council was monitoring the situation, it took the very ambiguous position that “the right to join
a trade union at work is a fundamental human right and part of the economic, social and
political process”. 659 Indeed, the behaviour of both parties has been in this state for quite some
time: in December 1997, after a mass execution in Korea, the EU, despite its long-established
opposition to the death penalty, merely condemned the execution and called upon the
government to impose an immediate moratorium on executions 660 which was followed by a
similar resolution calling for the abolition of the death penalty 661 . No mention of suspension of
co-operation under any agreement was made.
The 2002 Interim Agreement on trade and related matters with Lebanon, like those before,
contains both a human rights clause and a suspension clause. 662 Again, the Council has not
658
Answer to Written Question E-5715/2008 given by Mrs Ferrero-Waldner on behalf of the Commission,
available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2008-
5715&language=EN.
659
Debates, Question to the Council H-1033/06, available at:
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20061214&secondRef=ANN-
01&language=EN&detail=H-2006-1033&query=QUESTION.
660
Bulletin EU 1/2-1998 South Korea 1.2.16. Parliamentary resolution on mass executions in South Korea.
Available at: http://europa.eu/bulletin/en/9801/p102016.htm.
661
Bulletin 6-2002 South Korea 1.2.7. Parliament resolution on the abolition of capital punishment in
Japan, South Korea and Taiwan. Available at: http://europa.eu/bulletin/en/200206/p102007.htm.
662
Interim Agreement on trade and trade-related matters between the European Community, of the one
part, and the Republic of Lebanon, of the other part - Final act, 30/09/2002 L262, Articles 1 and 37.
Available at:
http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&
redirect=true&treatyId=249.
178

invoked the suspension clause, but it has, as is custom, admonished both the assassination of
the former Lebanese Prime Minister, Rafik Hairi, and concerns over interference with subsequent
elections, stressing the importance of “the holding, on schedule, of free, fair and transparent
elections, in accordance with the Lebanese constitution, without any outside interference or
meddling”. 663 The Lebanese authorities were also “urged” to thoroughly investigate the
assassination. 664 In 2004, the Council conveyed its “dismay” over the decision by Lebanese
authorities to execute three individuals, despite the moratorium which had been in place since
1998. The statement issued by the Presidency indicated that previous expressions of concern
had been made to Lebanon by the EU on the matter, which evidently did not affect Lebanon’s
decision to carry out the executions. 665 The Interim Agreement has been cited by the EU as a
means of enhancing the human rights situation in Lebanon:
“[T]he possibilities for monitoring human rights issues will be enhanced, on the basis of
… the Agreement. These issues will then be the subject of an institutionalised political
dialogue, which will take place regularly at all levels… The European Union will seek to
improve the human rights situation in Lebanon, by establishing a regular ongoing
dialogue with the Lebanese authorities.” 666
The Commission renewed its commitment to open dialogue in the context of persecution of
Christian minorities, stating that “it is paying very close attention to the human rights and
democracy situation in the region, including as regards the respect for religious freedom and
protection of religious minorities”. 667
663
Bulletin EU 3-2005 Lebanon 1.6.36. Council Conclusions on Lebanon, available at:
http://europa.eu/bulletin/en/200503/p106036.htm.
664
ibid.
665
ibid.
666
Answer to a Written Question E-2652/2003, available at:
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2003-2652&language=EN.
667
Answer to Oral Question H-0650/07, by the Commission, available at:
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20070927&secondRef=ANN-
01&language=EN&detail=H-2007-0650&query=QUESTION.
179

Considering the above examples, it is clear that the EU’s preferred approach in its relations with
third countries is to foster good relations and continued dialogue rather than risk the
relationships it has built up and any progress it has made in the protection of human rights and
humanitarian law. While this can be viewed as a positive approach, the consequences can be
adverse for human rights. Statements of condemnation with rare reprisals for violations may
send the signal that the EU is not serious about upholding human rights. This is arguably the
case in Lebanon regarding its decision to impose the death penalty despite prior admonishment
from the EU. As exemplified by the situation in Uzbekistan, the EU is more than capable of
imposing serious restrictions on violating countries to express its commitment to human rights.
Furthermore, although the EU has the tools at its disposal to combat violations of human rights,
it is unclear whether these tools can be used in the context of IHL. It seems that the standard
clause is aimed specifically at the respect for human rights and violations thereof, not at respect
for IHL. It might be worth considering the inclusion of similar IHL clauses into agreements
governing the EU’s relations with third countries.
Treatment of Violations
The EU institutions have various tools at their disposal 668 when third states have violated IHL or
IHRL, some of which have been discussed in various places in this report. For ease of use, the
discussion will be largely repeated in this section. Generally, EU action is either active, in the
form of military intervention, partnership action with other organizations, or the financing of aid
programmes, or passive, consisting of statements of condemnation through the adoption of
resolutions or common positions. This report will discuss each of the passive and direct actions
taken by the EU in respect to violations of IHL and IHRL, taking passive action first and followed
by active.
The EU has increasingly referred not only to human rights principles, but also to IHL principles in
the use of their various tools. However, there are several examples where the EU implicitly
668 This discussion is derived from the various country reports sent as an accompaniment to this report.
180

eferences these principles through the ultimate goal of the action. For example, EU support for
war crimes tribunals through funding or lobbying clearly demonstrates an aim to bring violators
of IHL to justice; likewise, moves to support democracies in third countries through the
strengthening of the judiciary or the election system imply EU protection of civil and political
rights, although these principles are not expressly referred to.
Indirect Action
All of the statements, positions and resolutions passed by EU bodies are typically expressly
supported by the Member States. This support lends the statements a higher level of credit and
ensures that words are translated into actions. This was the case, for example, in relation to a
Presidential statement condemning the resumption of hostilities in Afghanistan 669 and with
many of the examples discussed below.
EU Parliament Resolutions - condemnations
The EU Parliament often explicitly relies on principles of IHRL and IHL through statements of
condemnation of the acts of other states. Some of these have been referred to above in the
discussion of the EU’s position in relation to current topics, such as the situations in
Guantanamo and Palestine. 670 Another example of action is from the Darfur conflict where a
2007 Resolution 671 condemned violations of international law by the Sudanese government in
relation to the death penalty, corporal punishment, torture and women’s rights. In doing so, the
Parliament stated:
[R]espect for human rights and fundamental freedoms in their relations with the
Sudanese authorities, including compliance with national law and international human
rights standards, such as the International Covenant on Civil and Political Rights, to
which the Republic of Sudan has been a State party since 1986, the UN Convention on
669
Presidency Statement EU Bulletin 7/8-2000 1.6.4
670
Part IV, infra.
671
European Parliament Resolution on human rights in Sudan, EU Bulletin 5-2007 1.5.2.
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the Rights of the Child, to which Sudan has been a State party since 1990, and Article 96
(the human rights clause) of the Cotonou Agreement, which the Sudanese government
signed in 2005.
EU Parliament resolutions are also offered in a non-conflict situation, usually in relation to
situations of sustained discriminatory treatment. For example, in 2000, Parliament adopted a
resolution 672 in relation to Afghanistan and the Taliban’s pedantic ideology, calling it the root
cause of human rights abuse in the country. The Resolution also condemned the regime’s
support for international terrorism and stressed the need for it to adopt UNSCR 1267(1999) 673 .
The EU Parliament has also condemned breaches of IHL by the Haitian government, passing a
resolution in 2004 calling on all parties to the conflict to respect human rights and to establish
an independent inquiry into allegations of human rights violations by the local police force,
security forces, political activists and the militia. 674
More recently, Parliament adopted a resolution in 2007 based on IHRL principles which
condemned the continued abuses of the Mugabe regime in Zimbabwe. 675 The Resolution
strongly condemned the Mugabe dictatorship for its “relentless oppression of the Zimbabwean
people, opposition parties and civil society groups and its destruction of the Zimbabwean
economy, which has deepened the misery of millions of Zimbabweans” and welcomed the
Council conclusions of 23 April 2007, expressing strong concern at the rapidly deteriorating
situation in Zimbabwe and the wide-scale human rights abuses still taking place in the country.
Consequently it urged the Zimbabwean government to honour its own commitments to
democratic principles, human rights and the rule of law, evidenced by its status as a signatory to
672
European Parliament Resolution 30/11/2000.
673
Available at:
http://daccessdds.un.org/doc/UNDOC/GEN/N99/300/44/PDF/N9930044.pdf?OpenElement.
674
European Parliament Resolution on Haiti, 15/01/2004.
675 European Parliament Resolution on Zimbabwe, 26/04/2007.
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the Southern African Development Community Treaty and the protocols thereto, the
Constitutive Act of the African Union, the African Charter on Human and Peoples’ Rights and the
New Partnership for Africa’s Development.
Conflict and non-conflict states – calling on Member States and the UN to act
In its condemnation of breaches of IHL and IHRL, Parliament often calls on the Member States
and the UN to act in a punitive way towards a violating state. This was discussed in more detail
above with regard to the EU’s Contributions to Developments on IHL and IHRL. However, it may
help to provide some examples. For example, in a 1996 resolution 676 condemning numerous
violations of IHRL by the Taliban, Parliament called on all international aid donors, including the
EU and its Member States, to freeze all new aid and co-operation programmes (except
emergency aid) until the basic rights of men and women came to be respected by the
authorities. Parliament has also called upon UN support; for example, in another 2006
resolution, the Parliament called upon the UNSC to extend the arms embargo in Darfur
throughout Sudan in response to the violence and rape committed by all sides to the conflict. 677
Council of the EU
Statements of Condemnation
The Council, while it most effectively uses sanctions as tool for violations, also issues its own
statements of condemnation which rely heavily on principles of IHRL and IHL. In relation to the
crisis in Kosovo, the EU Council issued a statement in 1999 prior to NATO action:
“Europe cannot tolerate a humanitarian catastrophe in its midst. It cannot be permitted
that, in the midst of Europe, the predominant population of Kosovo is collectively
deprived of its rights and subjected to grave human rights abuses. We, the countries of
the European Union, are under a moral obligation to ensure that indiscriminate
behaviour and violence, which become tangible in the massacre at Racak in January
676 European Parliament Resolution, EU Bulletin 10 Point 1.2.1.
677 European Parliament Resolution on Darfur, EU Bulletin 4-2006, 1.33.43.
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1999, are not repeated. We have a duty to ensure the return to their homes of the
hundreds of thousands of refugees and displaced persons. Aggression must not be
rewarded. An aggressor must know that he will have to pay a high price. That is the
lesson to be learnt from the 20 th century.”
Common Positions
The Council has used common positions to condemn violations of international law because,
according to their nature, they may require direct action by the Member States. In 1998, the
Council adopted a common position concerning its role in Afghanistan. 678 The EU’s objectives as
defined in Article 1 included the promotion of “respect for human rights, including the rights of
women, and international humanitarian law”, and the provision of effective humanitarian aid
based on international co-ordination. Furthermore, the Common Position outlines the planned
methods of implementation of these policy objectives. These included calling on all parties to
recognise and promote human rights and fundamental freedoms; urging all factions to end
discriminatory policies; and supporting aid programmes integrating gender concerns and
promoting equality. The Position also reiterated support for the UN-drafted Assistance Strategy
on Afghanistan which included a “code of conduct on human rights and humanitarian
assistance”.
In 1999, the Council adopted a Common Position outlining how it would achieve the promotion
of respect for “human rights, fundamental freedoms and international humanitarian law” in
Afghanistan. 679 It proposed to do so via support to a proposed UN mission aimed at
investigating reports of serious and widespread human rights violations, the deployment of
civilian monitors, support to aid programmes integrating issues of gender concern and equality
and the promotion of peace and human rights, and by calling on the parties involved to respect
678
Common Position 98/108/CFSP of 26 January 1998 defined by the Council on the basis of Article J.2 of
the Treaty on European Union, on Afghanistan.
679
Council Common Position 1999/73/CFSP, 25 January 1999 defined by the Council on the basis of
Article J.2 of the Treaty on European Union.
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IHRL and IHL and to protect equal access to education and health facilities, employment and
freedom from discrimination.
Presidential Statements
The Presidency of the Council also issues its own statements of condemnation much like those
discussed above in relation to the Parliament. These statements generally define certain acts as
being in contravention of IHL or IHRL and are usually made on behalf of the EU Member States.
Regarding Sierra Leone, the EU joined the United States in expressing “the gravest concern” of
the violence being imposed by the Revolutionary United Front, noting that it had evidence of
“unspeakable cruelty” which amounted to a “gross violation of human rights and international
humanitarian law”. 680 This was followed years later by a Presidential Declaration calling for IHL
perpetrators of the atrocities in breach of IHL to be brought to justice in its support for the
Special Court of Sierra Leone. 681
The Presidency’s statements are not limited to situations of conflict. For example, a statement in
1998 declared the Presidency’s concern “at the extra-judicial killings and other human rights
abuses and urges the Cambodian Government to investigate these crimes as a matter of priority
and to bring those responsible to justice” surrounding violence at the Cambodian elections. 682
Direct Action
Agreements with other States
The EU often enters into agreements with third states where abuses of IHL or IHRL are occurring
or have occurred in the past, in an effort to help those countries achieve stability. Such
agreements are often predicated on the respect for human rights and democratic principles.
680 Presidential Statement, EU Bulletin 5-98 Point 1.3.21.
681 Presidential Declaration on behalf of the European Union on the first action of the Special Court of
Sierra Leone P/03/38 25 March 2003, 7721/103.
682 EU Bulletin 6 1998 Point 1.4.14.
185

These agreements were discussed above in Part VI in relation to Agreements with Non-EU
Member States, and will not be repeated here.
Sanctions
Sanctions are by far the most effective tool utilized by the Council in response to breaches by
other states of IHL and IHRL; unfortunately, they seem to be used as the exception rather than
the rule, preferring instead to opt for statements and common positions of condemnation.
However, the Council has in several instances chosen to impose sanctions, usually to ensure that
a UNSCR is correctly implemented, but also to support its own policy. According to Article 11
TEU, all sanctions or ‘restrictive measures’ against third countries, entities or individuals must be
consistent with the CFSP. Sanctions are typically imposed through the adoption of a common
position. Common positions may require Member states to interrupt or reduce economic
relations, ban the sale and supply of certain products and other such import restrictions, impose
arms embargoes, or embargoes on equipment that may be used in internal repression; freeze
funds and economic resources, impose arms embargoes, the prohibition of new investments,
ban on flights, or restrictions on admission, such as visa waiver. Parliament may also use its
resolutions as means of recommending action to Member States. For example, a resolution in
2004 regarding Myanmar called on the Member States to advise their citizens not to visit Burma
as much of the tourist infrastructure was built using slave labour. 683
Guidelines on the Implementation and Evaluation of Restrictive Measures (Sanctions) in the
Framework of the EU Common Foreign and Security Policy 684 have been developed to govern
the imposition of sanctions by the Council. The stated purpose of restrictive measures is “to
bring about a change in policy or activity by the target country, part of country, government,
683 European Parliament Resolution 7/09/2000, EU Bulletin 5-2000 Point 1.2.4.
684 2 December 2005, 15114 PESC 1084 FIN 475.
186

entities or individuals, in line with the objectives set out in the Common Position”. 685 They must
also be lawful:
The introduction and implementation of restrictive measures must always be in
accordance with international law. They must respect human rights and fundamental
freedoms, in particular due process and the right to an effective remedy. The measures
imposed must always be proportionate to their objective. 686
The Guidelines also permit the EU to impose sanctions on the basis of Article 6(2) TEU which
obliges the EU to respect fundamental rights as guaranteed by the ECHR, “and as they result
from the constitutional traditions common to the Member States, as general principles of
Community law”. 687
The EU also uses the threat of sanctions in order to further IHL and IHRL policies. For example,
the EU Parliament threatened Sudan with sanctions when it refused to accept a UN
peacekeeping force in Darfur, stating that “Sudan has failed in its ‘responsibility to protect’ its
own people” and must therefore accept the presence of a UN force. 688
The most extensive sanctions were used against Kosovo in the 1990s. In addition to an arms
embargo, the EU imposed other measures, including:
� a ban on the export of equipment which could be used for terrorist purposes or for
internal repression of citizens; 689
� the freezing of fund held in foreign jurisdictions by the former Yugoslavia; 690
685 ibid 4.
686 ibid 5.
687 ibid 6.
688 European Parliament Resolution on the situation in Darfur, EU Bulletin 9-2006, 1.33.47.
689 Common Position 98/240/CFSP of 19 March 1998 defined by the Council on the basis of Article J.2 of
the Treaty on European Union on restrictive measures against the Federal Republic of Yugoslavia.
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� a prohibition on Member States of investing in Serbia; 691
� a prohibition of flights between the former Yugoslavia and EU countries; 692 and
� a ban on the sale of petrol or petrol products to the former Yugoslavia. 693
Military Intervention and Creation of Support Bodies
The EU also engages in military intervention through its own missions such as EUPOL in
Afghanistan, but also as support to missions led by other organizations such as the UN or
NATO. This will be discussed in detail in Part VII.
Provision of Aid and Financial Assistance
As discussed above in Part V in relation to funding and assistance, the EU has a long history of
providing support financially and through humanitarian aid programmes in order to alleviate
human suffering and enable a transitional or post-conflict state to develop sound democracies
that respect IHRL and IHL. Aid is suspended by the EU in situations where the state has
deliberately breached IHRL and IHL, as was the case in Haiti when it became clear that the
cessation of violence, corruption and abuse of human rights was not forthcoming. Rather than
repeat the discussion above, it may be helpful here to specifically cite the example of Somalia.
As a reaction to the atrocities of the Somali conflict, the EU decided to provide aid as a first
response. From 1991 to 1993, the EU provided emergency and goods aid to the victims of the
civil war. During this time, Parliament requested the Council to identify additional ways to deliver
690
Common Position 98/326/CFSP of 7 May 1998 defined by the Council on the basis of Article J.2 of the
Treaty on European Union concerning the freezing of funds held abroad by the Federal Republic of
Yugoslavia (FRY) and Serbian Governments.
691
Common Position 98/374/CFSP of 8 June 1998 defined by the Council on the basis of Article J.2 of the
Treaty on European Union concerning the prohibition of new investment in Serbia.
692
Common Position 98/426/CFSP of 29 June 1998 defined by the Council on the basis of Article J.2 of the
Treaty on European Union concerning a ban on flights by Yugoslav carriers between the Federal Republic
of Yugoslavia and the European Community.
693
Common Position 1999/273/CFSP. See, generally, T Gazzini (2008) ‘International economic sanctions :
the role of the European Union as partner of the United Nations and as independent actor in international
affairs’, GARNET Conference: The European Union in International Affairs (Brussels, 24-26 April 2008).
188

unspent funds via the Lomé Convention. 694 After it became clear that the provision of aid was
undermining the political development in the region because aid convoys came the main target
of militia groups and bandits, the Commission established the Somali Unit to manage aid
delegation.
Legal and Political Recommendations and Solutions
The EU also supports IHL and IHRL observation and monitoring missions, for example, by
funding election observation missions in the DRC to ensure fair and democratic elections, or in
relation to the Serbian region of Vojvodina where the EU supplied a Monitoring Mission to
protect against breaches of human rights and the lack of law and order in the region. 695
The EU will also take a certain political stance with regard to states that have breached IHL or
IHRL. For example, the EU Parliament refused to recognize the re-election of Robert Mugabe in
Zimbabwe following the March 2005 election. 696
The EU highly values its political relationships with third countries and seeks to cultivate them in
order to enhance the respect for the rule of law. For example, the EU and Bosnia and
Herzegovina made commitments establishing a political dialogue aimed at “reinforcing
democracy in the country and respect for minority rights”. 697
Comments
The EU clearly has a variety of tools at its disposal to effectuate the respect of IHL and IHRL
ranging from political statements to the imposition of sanctions such as arms embargoes.
694
Indeed Article 364A of the fourth Lomé Convention was especially designed to allow for the provision
of aids to Somalia despite the absence of a government who could ratify the Convention.
695
European Parliament Resolution on harassment of minorities in Vojvodina, 29/09/2005, EU Bulletin 9-
2005, Point 1.2.4.
696
European Parliament Resolution on Zimbabwe of 7/07/2005.
697
Council Declaration concerning the joint declaration on the establishment of political dialogue
between the European Union and Bosnia and Herzegovina, EU Bulletin 9-2003, Point 1.6.8.
189

However, it appears not only from this discussion, but from the discussion of agreements with
non-EU Member States, that the EU prefers to use its more passive methods of influence rather
than impose sanctions, which are clearly stronger in their purpose and effect.
However, as valuable as sanctions are, it is often the case that the imposition of sanctions by the
EU has little effect in situations where other aid is made available to the state in question by
other organizations or states. For example, although the EU has imposed sanctions on Myanmar,
India, China and most other South Asian states have not and consequently aid and economic
trade continues. It is arguable that in order for sanctions to be effective, they must be universally
imposed. Furthermore, such sanctions must apply to all EU action: for example, a condemnation
of Myanmar’s accession to ASEAN by the Council was undermined by the decision of EU Foreign
Ministers to attend the ASEAN conference in 2004.
190

VII. Conflict Management
Although the expression ‘civil conflict management’ (CCM) has been used in various EU official
documents since 1999, its meaning has not been clearly defined. 698 The lack of definition of EU
CCM is to some extent a product of the unclear scope of civilian peacekeeping and peace-
building activities at the international level. More directly, the ambiguity is also related to the
institutional split between the civilian instruments created under the first and second pillars and
the issue of competence-sharing between the Council and Commission. 699
CCM was defined in one of the first reports devoted to the issue as ‘the intervention by non-
military personnel in a crisis that may be violent or non-violent, with the intention of preventing
further escalation of the crisis and facilitating its resolution’. 700 The same report underlined the
fact that a distinction is usually drawn between conflict prevention and crisis management, the
former being used to refer to activities that take place before any hostilities have occurred
whereas the latter refers to interventions only after violence has erupted. In addition, the report
recognised that post conflict peace building is seen another means of preventing subsequent
crises, and therefore frequently becomes part of CCM discussions as well. 701 For the purposes of
the study, we have tried to assess crisis management and conflict prevention in different
sections.
Crisis Management
The European Security Strategy
698 ‘Civilian Crisis Management, the EU Way’, Chaillot Paper no 96, n°90, June 2006, Catriona Gourlay,
Damien Helly, Isabelle Ioannides, Radek Khol, Agnieszka Nowak, Pedro Serrano, edited by Agnieszka
Nowak, Institute for Security Studies, p 18.
699 ibid
700 C Lindborg, ‘European Approaches to Civilian Crisis Management’ BASIC Special Report, March 2002,
p4, in Chaillot Paper no 90, ibid.
701 ibid
191

The adoption of the European Security Strategy (ESS) by the European Council December 2003
was a landmark event for the European Union as an international actor. 702 It is indeed the first
document covering the whole EU foreign policy, from aid and trade to diplomacy and the
military. As such, it is a statement of the EU’s ambition as an international actor, and has
therefore become the framework guiding the EU’s performance as well as the benchmark
against which to judge it. 703 The ESS provides strategic focus for the EU, whose geographic
borders are loose. It identifies a number of key threats such as terrorism, proliferation of
weapons of mass destructions, regional conflicts, state failure, and organised crime; and
identifies a combination of political, economic and social responses with recourse to military
ones only as a last resort. The types of threats and responses that this document identifies are a
recognition of the fact that currents threats are ‘multifarious and their sources are obscure,
denationalized, and de-territorialized.’ 704 Prior to this, the European Council of Feira in June 2000
established four priority areas: police missions, rule of law, civilian administration and civil
protection.
This global ambition is not limited to aid and trade, areas in which the EU has long been a global
power, but includes the politico-military dimension: “Europe should be ready to share the
responsibility for global security and in building a better world.” In achieving that aim, the
military is an instrument of last resort. The emphasis is on a holistic approach, i.e. putting to use
the full range of instruments, through partnership and multilateral institutions, for a permanent
policy of prevention and stabilisation. “The best protection to for our security is a world of well-
governed democratic states. Spreading good governance, supporting social and political reform,
dealing with corruption and abuse of power, establishing the rule of law and protecting human
rights are the best mean of strengthening the international order.” 705
702 S Biscop, ‘The ABC of the European Union Security Strategy: Ambition, Benchmark, Culture’, in The
European Union Crisis Management – Policy and Legal Aspect, S Blockmans (Ed), TMC Asser Press, 2008,
p55.
703 ibid
704 N Tsagourias, ‘EU Peacekeeping Operations: Legal and Theoretical Issues’, European Security Law, M
Trybus and N D White (Eds), Oxford University Press 2007, p105.
705 ibid, p56.
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As Biscop points out, the ESS is the codification of a strategic orientation that had emerged
through the practice of CFSP. However, the EU’s commitment shows a low degree of
consistency, both geographically and in terms of the types of operations undertaken. 706 The
Member States are not averse to deploying their forces. Geographically, the large majority is
deployed on the Balkans, in Europe’s backyard where the EU and its Member States logically
assume responsibility and in Afghanistan and Iraq, where, as a follow-up to the interventions
initiated by the US and a number of Member States themselves. The large contingent of nearly
8000 blue helmets from EU Member States in Lebanon is a positive example of EU commitment
and will provide an enormous opportunity to increase the EU’s standing in the Middle East if
diplomatic follow-up is assured. But it sharply contrasts with the 1000 EUSEC RD Congo troops
reluctantly deployed in 2006. 707 In other words, and although legally the Petersberg tasks
include operations include operations at the high end of the spectrum of violence, politically,
the Member States are still extremely divided over the use of force under the EU flag, especially
outside their periphery or where no direct strategic interests are at stake.
Institutionalisation of conflict management
Political level of EU Crisis Management
The Political and Security Committee
The PSC was established during the Helsinki Summit of 10-11 December 1999 and formally
endorsed in 2001. 708 Its mandate includes monitoring the international situation in the areas
covered by the CFSP and contributing to the definition of policies by delivering opinions to the
Council at its request or on its own initiative. In particular, it exercises, under the political
706 ibid, p59.
707 ibid, p65.
708 Council Decision 2001/78/CFSP of 22 January 2001 setting up the Political and Security Committee, OJ
2001 L 27/1.
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esponsibility of the Council, political control and strategic directions of crisis management
operations. 709
If the PSC considers that EU action is appropriate, it will assign the High Representative and the
General Secretariat of the Council to formulate a Crisis Management Concept (CMC). The PSC
will then seek advice on the military and civilian implications of the given crisis and send
guidelines to the EU Military Committee from which he will get opinions and recommendations
as well as from CivCom. The CMC is then sent to the Coreper and the Council, with the final
decision being made by the Council. The PSC will then be tasked by the Council with developing
strategic options, supported by the EU Military Committee for the military options and by
CivCom for the civilian options. The Commission, fully associated with CFSP, may also propose
complementary options on the Community side. The Council will then adopt a Joint Position to
formally endorse the operation. 710
The EU Special Representatives and Personal Representatives
The EUSRs are appointed by the High Representative to assist him in troubled crisis countries or
regions. Their mandate depends on the region and on the nature of the instability, but they
generally provide the Union with a political presence and may also be involved in negotiations
with different parties. They are mainly senior officials from the EU Member States.
It has been suggested that the tense relationship between various EUSRs and the Commission
delegations, who, on various occasions were not fully informed of the EUSR’s activities, has led
to a less than optimal level of coordination. In two cases (BiH and the Yugoslav Republic of
Macedonia) the EUSR was also head of the Commission delegation. This has been seen as a
709 Article 25 TEU.
710 For more details, see S Duke, ‘Peculiarities in the Institutionalisation of CFSP and ESDP’, in The
European Union Crisis Management – Policy and Legal Aspect, S Blockmans (Ed), TMC Asser Press, 2008,
p80
194

possible way to resolve this issue, but dual appointments have certain limitations, stemming
from the reluctance of Member States to see the role being ‘communitarised’. 711
The Policy Unit and Situation Centre
The Policy Unit and Situation Centre consists of around 25 seconded diplomats from the EU
Member States and was created by a declaration attached to the Amsterdam Treaty to assist the
High Representative. 712 The Unit, reporting directly to the High Representative, was to play a
general but important role in strategic assessment and policy planning and would become the
platform out of which the Situation Centre eventually developed in 2000/2001. 713
The Military Dimensions of EU Crisis Management
EU Military Committee and EU Military Staff
An interim Military Committee was created at the June 2000 Feira European Council; it became
permanent at the January 2001 Nice European Council. The Military Committee is the highest
military body within the Council and is charged with providing advice to the PSC on all military
matters. The task of running the military dimensions of crisis management operations could not
however be delegated to the Military Committee, since it is primarily an advisory body. An EU
Military Staff was therefore created to assist the Committee in 2005 and to plan for and
supervise the military dimensions of EU crisis management operations and to liaise with their
civilian counterparts in the Civilian-Military Cell.
The EUMC provides preliminary advice to the PSC on any military dimensions to a crisis. After
the Council adopted a Joint Position, the Committee issues an Initiating Military Directive that
gives basic direction to the Operation Commander. Once approved by the PSC, the Operation
711 ibid, p82
712 Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the
European Communities and related acts, Declaration no 6 on the establishment of a Policy Planning and
Early Warning Unit, OJ 1997 C 340/132.
713 For more information on the Policy Unit, please see section on Conflict Prevention in this report.
195

Commander will develop a Concept of Operation, while the EU Military Staff will set out a draft
Operation Plan. This plan will then be reviewed by the PSC, the Committee and ultimately the
Council for approval. The EUMS plays also a role in early warning and situation awareness.
European Defence Agency
The European Defence Agency was established by a Council Decision of 12 July 2004. 714 It is
subject to the Council authority and is open to membership from the EU Member States. Its
tasks include:
• to work for a comprehensive and systematic approach to defining and meeting the
capability needs of the European Security and Defence Policy (ESDP);
• to promote European defence-relevant Research and Technology, as vital both to a
healthy defence technological and industrial base and to defining and satisfying future
capability requirements. This will involve pursuing collaborative use of national defence
Research and Technology funds, in the context of a European Defence Research and
Technology Strategy which identifies priorities;
• to promote European cooperation on defence equipment, both to contribute to defence
capabilities and as a catalyst for further restructuring the European defence industry;
• to work, in close cooperation with the Commission, on steps towards an internationally
competitive market for defence equipment in Europe. 715
The Council, acting unanimously, may issue guidelines, based on advice from the PSC and the
EUMC. The EDA has to operate with respect not only for the competences of the Community
and its institutions but also for the competence of the Member States in defence matters. 716 The
EDA was designed to work in the CFSP/ESDP context, notably helping the members to attain the
2010 Headline Goal. It built upon the basic capabilities goal in 2003 so that Member States may
714 Council Joint Action 2004/998 CFSP of 12 July 2004.
715 See http://www.eda.europa.eu/genericitem.aspx?area=Background&id=122
716 S Duke, n710, p87.
196

e able to apply a ‘fully coherent approach to the whole spectrum of crisis management
operations covered by the Treaty on the European Union’. 717 The Goal was also designed to
support the tasks enumerated in the ESS of 2003 which, in addition to the Petersberg Tasks,
should include ‘joint disarmament operations, the support of third countries in combating
terrorism and security sector reform’. 718 The role of the EDA in this context is critical 719 , since its
role is to ‘support, as appropriate, the fulfilment of the commonly identified shortfalls in the field
of military equipment.’ 720
As Duke noted, the challenges faced by the EDA are ‘formidable and may be summarised as
threefold: to harmonise capability and equipment requirements; to develop long-term
perspectives on research and technology, and to create a European defence equipment
market. 721
Civilian Crisis Management
This development started with the creation of the Committee for the Civilian Aspects of Crisis
Management (CivCom) at the 1999 Helsinki European Council which first met on 16 June
2000. 722 CivCom plays a crucial role in the development of strategies for the four principal areas
of civilian crisis management operations: police missions, rule of law, civilian administration, civil
protection. CivCom formally reports to Coreper, but its main function is to provide advice and
expertise to the PSC in the form of recommendations on the civilian aspect of crisis
management. It is comprised of one representative from each Member State, as well as
representatives from the European Commission.
717 Headline Goal 2010, approved by the General Affairs and External Relations Council on 17 May 2004,
endorsed by the European Council 17-18 June 2004, para1.
718
ibid, para2.
719
S Duke, n710, p87.
720
Headline Goal 2010, n717, para5.
721
Ibid, p88.
722
Council Decision 2000/354/CFSP of 22 May 2000, OJ 2000, L 127/1.
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The Council subsequently agreed that a Civilian-Military Cell (Civ-Mil Cell) should be established
within the framework of EUMS to facilitate operational and strategic planning for the civilian and
military dimensions of crisis management. The origins of the Civ-Mil Cell were the results of a
compromise in December 2003 following protracted differences over whether there should or
should not be an autonomous operational EU Headquarters. 723 The Cell has a number of
functions including: enhancing early warning role of the EUMS, conflict prevention and post-
conflict stabilisation, coordination of civilian crisis management operations, the development of
civilian-military relations within the institutions; and assisting any national headquarters involved
in an EU operation. The Cell includes 35 staff members of whom around one quarter are military
planners, the same proportion being civilian planners, while the remainder are Council
fonctionnaires. 724 The Feira European Council saw agreement that up to 5000 police officers
could be made available by the Member States for international missions, 1000 of whom should
be available within 30 days. A Police Unit was created by the Nice European Council to provide
the Council with permanent police expertise and is attached to the Council Secretariat to
facilitate and run police missions. 725 The development of the Police Unit was later
complemented by coordination between five EU Member States to create a gendarmerie type
force, at the disposal of the EU and other security organisations, like NATO, for civilian crisis
management. The European Gendarmerie Force (EGF) reached full capacity in 2007 and is
headquartered in Vicenza, Italy, with up to 800 personnel available within 30 days. Since 17th
December 2008, the High Level Interdepartmental Committee Meeting (CIMIN) decided to
welcome the Romanian Gendarmerie to become a full member of the EGF. 726
723
S Duke, n710, p89.
724
ibid
725
Presidency Conclusions, Nice European Council, 7-9 December 2000, Annex II to Annex VI,
‘Strengthening of European Union Capabilities for Civilian Aspects of Crisis Management’.
726
Treaty between the Kingdom of Spain, the French Republic, the Italian Republic, the Kingdom of The
Netherlands and the Portuguese Republic, establishing the European Gendarmerie Force, EUROGENDFOR,
Velsen 18 October 2007, see http://www.eurogendfor.org/
198

The development of the both military and civilian aspects of crisis management in CFSP was
heavily reactive in nature, e.g. responding to existing crisis in BiH and Kosovo. 727 The institutional
structures established for crisis management within the Council Secretariat have as their primary
function the coordination and deployment of national resources and assets made available on
case-by-case basis for the EU operations. It is worth noting that like in case of other
organisations, such as NATO, the availability of any assets or personnel is ultimately determined
by the Member States themselves – there is no automatic assumption of availability, thus
precluding the use of a ‘European Army’. 728
Moreover, whereas military aspects of crisis management are unambiguously intergovernmental,
civilian crisis management (CCM) aspects demand both intergovernmental and Community
coordination and responses since the necessary instruments are to be found partially in CFSP.
The Headline Goals 2008 make this apparent when they refer specifically to the coherent use of
Community and ESDP instruments. The issue of coherence is not facilitated by the lack of a
commonly agreed definition of CCM, which in practice has been seen as incorporating many
areas of Community activity, such as humanitarian assistance, Official Development Assistance
(ODA), monitoring, election assistance, etc.
The European Council of Feira in June 2000 established four priority areas: police missions, rule
of law, civilian administration and civil protection. The overall emphasis was on deploying small
integrated ‘packages’ (or teams) at the earliest possible stage of a crisis with, if necessary, the
possibility to conduct concurrent operations at different levels of intensity. 729 Of central
importance to the integrated package is the concept of Civilian Response Team (CRT’s), who
727 S Duke, n710, p90.
728 ibid
729 ibid, p91.
199

should assist in key areas such as fact-finding and initial presence to support and ensuing CCM
operation and to reinforce any CCM tools in a given country or region. 730
In terms of procedure, CivCom has the primary responsibility for advising the PSC on the police
and civilian options with the EU Military Committee doing so for any military aspects. At the next
stage, the relatively new CPCC (Civilian Planning and Conduct Capability) enters the picture since
they will be requested by the PSC to provide advice and support on operational planning for
police and civilian missions. The creation of the CPCC within the Council on 18 June 2007,
headed by a Civilian Operations Commander marked a further strengthening of the EU’s CCM
capabilities. 731 The CPCC is divided into an Operations Unit and a Mission Support Unit, with the
Civ-Mil Cell providing a joint military-civilian planning capability, combining the CPCC and
military planners under the functional authority of the Civilian Commander. The CPCC was part
of new guidelines for the command and control structure for EU CCM providing, amongst other
things, for a Civilian Operation Commander who should exercise command and control at the
strategic level for the planning and conduct of all EU CCM operations, under the overall political
and strategic direction of the PSC and overall authority of the High Representative. 732 The
Director of the CPCC is for each civilian operation, the Operation Commander.
The CCPC will develop a civilian Concept of Operations (CONOPS) for CivCom, which is then
subject to approval by the Council. The CPCC, in conjunction with the Police and/or Civilian
Head of Operations will then draft the Operation Plan (OPLAN) and the process of generating
the required personnel and assets will commence. The OPLAN is then presented to CivCom, who
after consideration submit it to the PSC, Coreper and then the Council for final agreement. At
this juncture, Status of Missions Agreement (SOMA) negotiations will be opened with the
hosting body to cover the legal parameters of the operations. As for the military counterpart, a
730 Multifunctional Civilian Crisis Management Resources in Integrated Format, EU doc 5462/05, 18
January 2005.
731 S Duke, n710, p 91
732 ibid
200

civilian/police Committee of Contributors (CoC) will be established for the day-to-day
management operation.
Currently, no less than 20 operations have been held or are currently ongoing, both of civilian
and military nature. One of the consequences of the demand of EU crisis management expertise,
either as stand alone operations or in conjunction with other regional or international
organisations, is the need for adaptation of or improvisation on the existing institutional
structures. One such example is the activation of the EU Operation Centre (OpsCentre) in
2007. 733 The Centre is designed to provide the EU with the capacity to plan and run autonomous
operation at the military-strategic level, when no national headquarters have been identified.
Instruments
The Rapid Reaction Mechanism
Council Regulation (EC) No 381/2001 of 26 February 2001 created a rapid-reaction mechanism
(RRM), (repealed by the Instrument for Stability in 2006), designed to allow the Community to
respond rapidly and efficiently to situations of urgency or crisis or to the emergence of crisis.
This mechanism replaced all existing Community legal instruments where the action required
was immediate and could not be launched within a reasonable time-limit under the existing
legal instruments or the action was limited in time, not exceeding six months. Community
financing under this Regulation took the form of grants.
The Rapid-reaction mechanism was activated in situations of crisis or emerging crisis, situations
posing a threat to law and order, the security and safety of individuals, situations threatening
the escalate into armed conflict or to destabilise the country and also when such situations were
likely to negatively affect assistance and cooperation policies and programmes. However, it did
733 Presidency Conclusions, Brussels European Council, 16-17 December 2004, 16238/1/04, 1 February
2005, para 62. The establishement of the EU Operation Centre was agreed at the European Council of
December 2004 and was supposed to have been available by January 2006 at the latest, in S Duke n723,
p92.
201

not fund activities covered by the ECHO Regulation, unless the Commission decided to combine
both mechanisms in a particular security or crisis-management circumstances.
The Commission was responsible for coordinating the RRM action with any action taken by the
Member States in order to increase the effectiveness of the interventions.
Examples of past RRM projects include:
• Financing of mediation efforts and monitoring of implementation of peace or cease fire
agreements (Liberia, Ivory Coast, Sudan (North/South and Darfur), Indonesia/Aceh, Sri Lanka);
• Re-establishment of rule of law and civilian administration (DRC/Bunia, Afghanistan);
• Confidence building measures including reconstruction and mine action directly linked to the
promotion of ongoing peace processes (fYROM, Sri Lanka, Horn of Africa);
• Civil society development (Bolivia, Indonesia);
• Emergency electoral support (Georgia, Kyrgyzstan), emergency election monitoring (Kyrgyzstan,
Ukraine, Chechnya);
• High level policy advice, including the planning of economic reconstruction (Afghanistan, FYROM,
Iraq, Lebanon);
• Post-conflict assistance (Iraq) ;
• Demobilisation and reintegration of combatants (DRC, Indonesia/Aceh);
• Promoting thr role of women in conflict prevention (Indonesia).
The EC contribution to these projects amounted to more than EUR 115 million from 2001 to
2006.
Implementing partners eligible under the RRM included: authorities of the Member States or of
beneficiary countries and their agencies; regional and international organisations and their
agencies, GOs having their main headquarters in a Community Member State (unless
exceptional cases), and public and private operators.
The RRM was repealed by the Instrument for Stability 2007-2013.
The Instrument for Stability
202

On November 2006 a new Instrument for Stability was adopted by Regulation (EC) No
1717/2006 of the Parliament and of the Council with a total budget of EUR 2.06 billion to
implement development cooperation measures and financial economic and technical
cooperation measures with third countries.
This new instrument contributes to the objective of developing a comprehensive prevention
approach to State fragility, conflict, natural disasters and other types of crises stated in the 2006
European Consensus on Development. Its specific aims are to contribute to stability in a
situation of crisis or emerging crisis by guaranteeing the proper implementation of the
Community’s development and cooperation policies and by addressing specific global and
trans-regional threats that may destabilise the implementation of Community cooperation
policies in third countries. Assistance provided by this regulation shall be complementary to that
provided for under other Community instruments.
The provision of technical and financial assistance to respond to a crisis or emerging crisis under
this instrument covers a wide range of activities, such as support in promoting confidence-
building, mediation, dialogue and reconciliation; support for the establishment of interim
administrations; support for the development of democratic state institutions and international
criminal tribunals and ad hoc national tribunals, truth and reconciliation commissions; and
support for the rehabilitation and reconstruction of key infrastructure, housing, public buildings
and economic assets. It also includes support for the protection of women and children in crisis
and conflict situations as well as for the rehabilitation and reintegration of the victims of armed
conflict, including measures to address the specific needs of women and children.
Assistance in the context of stable conditions for cooperation shall cover the following fields:
threats to law and order, to the security and safety of individuals, to infrastructures and to public
health; risk mitigation and preparedness relating to chemical, biological, radiological and nuclear
203

materials or agents; and pre- and post-crisis capacity building, particularly by addressing
emerging inter-community tensions and improving post-conflict and post disaster recovery.
Community assistance under this instrument shall be implemented through exceptional
assistance measures and interim response programmes; multi-country strategy papers, thematic
strategy papers and multi-annual indicative programmes; annual action programmes and special
measures. In this context, an annual programme 2008 covering the “Strategy Paper 2007-
2011” and the “Indicative Programme 2007 – 2008” for the Instrument for Stability has been
adopted with a total budget of EUR 8 million. 734
The following are eligible for funding under Regulation (EC) No 1717/2006, among others:
partner countries and regions and their institutions; joint bodies set up by the partner countries
and regions and the Community; international organisations, including regional organisations,
UN bodies, departments and missions; European agencies; companies, firms and other private
organisations and businesses; financial institutions; non state actors and also natural persons.
Support under the Instrument for Stability may be co-financed by Member States and other
donor countries, international and regional organisations, companies, firms and other private
organisation and businesses.
734 The programme is divided into three components:
1.- Peace-building Partnership Support, providing grant funding to develop the capacity of civil society
actors to anticipate and respond to crisis, and to improve the dialogue between civil society actors and
policy makers at field and at European-level, with a budget of EUR 5.85 million
i) to build the capacity of non-state actors and regional and sub-regional organisations engaged in the
prevention of violent conflict, post-conflict political stabilization and early recovery after a natural disaster;
ii) to strengthen capacities for providing early warning of potential crisis situations;
2.- Development of multilateral co-operation on early-warning, post-conflict and post-disaster needs
assessment, with a lower budget of EUR 1.5 million and the following priorities:
a) Development of post-conflict and post-disaster needs assessment frameworks
b) Development of a natural resources management and conflict policy framework, guidelines and
training.
3- Strengthening the EU’s capability to contribute to international civilian stabilisation missions through
operational training of EU police experts, with a budget of EUR 0.65 million.
204

The effectiveness of the policies and programmes implemented under the Instrument for
Stability in its first three years will be evaluated by the Commission in a report considering
proposals for amending the Regulation, if necessary.
The European Initiative for Democracy and Human Rights
The European Initiative for Democracy and Human Rights (EIDHR) was created by an initiative of
the European Parliament in 1994 as a complementary but independent global financing
instrument for operations aimed at the promotion of human rights, democratisation and conflict
prevention policies. The EIDHR operated within the framework of Council Regulations (EC) No
975/1999 and No 976/1999, of 29 April 1999, until they expired in 2006. The regulations laid
down the requirements for the implementation of both development cooperation operations
and other types of operations contributing to the general objective of developing and
consolidating democracy and the rule of law and to that of respecting human rights and
fundamental freedoms both in Europe and in third countries. These policies must generally be
implemented in partnership with non-governmental organisations (NGOs) and international
organisations. 735
735
According to the Council Regulations above mentioned, the EIDHR shall provide financial aid for
operations aimed at:
1.- Promoting and defending the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights and other international instruments concerning the development and
consolidation of democracy and the rule of law.
2.- Supporting the processes of democratisation.
3.- Supporting measures to promote respect for human rights and democratisation by preventing conflict
and dealing with its consequences, in particular:
a) supporting capacity-building, including the establishment of local early warning systems;
b) supporting measures aimed at balancing opportunities and at bridging existing dividing lines among
different identity groups;
c) supporting measures facilitating the peaceful conciliation of group interests, in order to prevent conflict
and to restore civil peace;
d) promoting international humanitarian law and its observance by all parties to a conflict; and
e) supporting international, regional or local organisations, involved in preventing, resolving and dealing
with the consequences of conflict. It also included support for establishing ad hoc international criminal
tribunals and support and assistance for the victims of human rights violations.
205

The European Instrument for Democracy and Human Rights operated until December 2006
where the Community replaced it with the European Initiative for Democracy and Human Rights.
The European Instrument for Democracy and Human Rights
In December 2006 a new independent financing instrument was established under Regulation
(EC) No 1889/2006 adopted by the European Parliament and the Council. This new self-standing
instrument, which entered into force on 1 January 2007, took the place of the European Initiative
for Democracy and Human Rights keeping the same acronym (EIDHR).
The general objective of the EIDHR is here again to provide assistance and economic, financial
and technical cooperation with third countries, contributing to the development and
consolidation of democracy and the rule of law, and of respect for all human rights and
fundamental freedoms. This assistance shall particularly aim at:
1)Enhancing the respect for and observance of human rights and fundamental
freedoms; promoting and consolidating democracy and democratic reform in third
countries; and strengthening civil society active in the field of human rights and
democracy promotion.
2Supporting and strengthening the international and regional framework for the
protection, promotion and monitoring of human rights, the promotion of democracy
and the rule of law and reinforcing an active role for civil society within these
frameworks.
3)Building confidence in and enhancing the reliability of electoral processes.
Community assistance under the EIDHR Regulation shall be implemented through Strategy
Papers, Annual Action Programmes, Special Measures and Ad hoc Measures. In this context, a
Strategy Paper for the years 2007-2010 was adopted on 8 August 2007 with the overall aim of
206

supporting an integrated approach to democracy-building and the protection and promotion of
human rights. The five main objectives set out in the 2007-2010 Strategy Paper are:
1) Enhancing respect for human rights and fundamental freedoms in countries and
regions where they are most at risk;
2) Strengthening the role of civil society in promoting human rights and democratic
reform, in supporting the peaceful conciliation of group interests and in consolidating
political participation and representation;
3) Supporting actions on human rights and democracy issues in areas covered by
EU Guidelines, including on human rights dialogues, on human rights defenders, on the
death penalty, on torture, and on children and armed conflict;
4) Supporting and strengthening the international and regional framework for the
protection of human rights, justice, the rule of law and the promotion of democracy;
5) Building confidence in and enhancing the reliability and transparency of
democratic electoral processes, in particular through election observation.
According to the 2007-2010 Strategy Paper children and armed conflict activities within
Objective 3 will be supported by € 6.8 million over the period of four years. 736
In order to implement the EIDHR Strategy Paper an Annual Action Programme was adopted on
December 2007 combining indicative allocations for 2007 and 2008. A total amount of EUR
3,400,000 was forecast to support projects on Children and Armed Conflict in 2008. The
selection of projects for funding will be carried out through global calls for proposals, local calls
for proposals and strategic partnerships. Support for electoral processes and election
736 The outcomes of projects seeking support may include:
i. Reducing number of children in armed forces and groups.
ii. Increasing number of children who have been successfully reintegrated in the society after the conflict.
iii. Providing more effective coverage of crimes related to children’s rights by the transitional and regular
judicial systems.
iv. Increasing societal awareness on children’s rights in armed conflict.
207

observation, and for a pilot project (“European emergency judicial assistance”) are also
proposed.
Civil society organisations, including NGOs and independent political foundations, public sector
non-profit agencies, institutions and organisations, national, regional and international
parliamentary bodies, international organisations and natural persons are eligible for funding
under the EIDHR.
As its predecessor (the European Initiative for Democracy and Human Rights), the new EIDHR
complements the various other tools for implementation of EU policies on democracy and
human rights, such as political dialogue, diplomatic démarches, instruments of financial and
technical cooperation- including geographic and thematic programmes, and the new instrument
for stability. 737
737 The following are examples of projects that the EIDHR supported in 2006-2007:
-‘Implementing the Newly Adopted Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law’ (Worldwide). Organisation: The Redress Trust Limited. EC contribution:
EUR 699,341.
-‘Ratification and implementation of the Optional protocol to the Convention against Torture in
Bangladesh, Cambodia, Sri Lanka and the Philippines. Organisation: Rehabiliterings-OG Forskningscentret
for Tortur Forening. EC contribution: EUR 383,993.
-‘Victim and Witness Protection (VWP) Standards for the Khmer Rouge Tribunal (ECCC) and Beyond’
(Cambodia). Organisation: The Khmer Institute of Democracy Association. EC contribution: EUR 400,000.
-‘Communicating Justice’ (Uganda, Burundi, DRC, Liberia, Sierra Leone). Oganisation: The BBC World
Service Trust. EC contribution: EUR 950,000.
-‘Extraordinary Chambers (EC and International Criminal Court (ICC) Justice Project’. (Cambodia).
Organisation: Stichting Oxfam Novib. EC contribution: EUR 950,000.
-‘Appui Pour la Participation de la Société Civile et la Démocratisation en Haïti’ (Haiti). Organisation:
Oxfam GB LGB. EC contribution: EUR 600,000.
-‘Appui à la formation citoyenne des femmes et populations defavorisees’ (Haiti). Organisation:
Mouvement Des Femmes Haitiennes Pour L Education Et Le Developpement Moufhed Association. EC
contribution: EUR 200,000.
-‘Human Rights Society Organisations and Communication in Sierra Leone (HRSOC). (Sierra Leone).
Organisation: Institut Panos Afrique De L’Quest Association. EC contribution: 240,000.
208

The Battlegroup Concept
In 2004, the Headline Goal 2010 aimed for the completion of the development of rapidly
deployable battlegroups, including the identification of appropriate strategic lift, sustainability
and debarkation assets by 2007. Within this context and based on a French/British/German
initiative, the EU Military Staff (EUMS) developed the Battlegroup Concept. In June 2004, the EU
Military Committee (EUMC) agreed the Battlegroup Concept. Battlegroups will be employable
across the full range of tasks listed in Article 17.2 of the Treaty on European Union and those
identified in the European Security Strategy, in particular in tasks of combat forces in crisis
management. 738 The aim is to be able to deploy up to two battlegroups, near-simultaneously,
within 5 days of the Concept of Operations being adopted or within 10 days of the CFSP joint
action to launch an operation. The force should be sustainable for 30 days, extendable to 120. 739
The Civilian Headline Goal 2008
The EU has addressed civilian capability planning development through one comprehensive
document called the Civilian Headline Goal 2008 (CHG 2008). With this approach, the EU broke
new ground as in one document it systematically assessed civilian capability requirements from
a qualitative and quantitative point of view. The CHG 2008 process started in early 2005 and was
overseen by the PSC, supported by the CIVCOM. It was conducted by the EU Council General
Secretariat with the support of relevant experts from Member States and the European
Commission. The Final Report on the Civilian Headline Goal 2008 was made on 19 November
2007. 740 Some of its aspects are discussed below. 741
Capability Planning
738
See http://www.consilium.europa.eu/uedocs/cmsUpload/Battlegroups_February_07-factsheet.pdf
739
S Duke; n710
740
See
http://www.consilium.eu.int/uedocs/cmsUpload/Final_Report_on_the_Civilian_Headline_Goal_2008.pdf
741
For a more comprehensive analysis, see J Schuyer, ‘The Civilian Headline Goal 2008: Developing Civilian
Crisis Management Capabilities for the EU’, in The European Union Crisis Management – Policy and Legal
Aspect, S Blockmans (Ed), TMC Asser Press, 2008, p135.
209

This was based on virtual planning scenarios representing a selection of possibilities calling for
EU action under ESDP. The illustrative scenarios were: I.A - Stabilisation and Reconstruction,
including a Substitution Mission; I.B Stabilisation and Reconstruction; II - Conflict Prevention,
notably Monitoring and Support to EUSR Offices; III - Targeted Strengthening of Institutions; IV -
Civilian Support to Humanitarian Operations. 742 A detailed list of personnel required for
possible ESDP operations was drawn and Member States were invited to indicate personnel that
could potentially be made available. The Final Report states that some scenarios called for the
deployment of ambitious large-scale civilian ESDP missions. This large-scale approach was
consistent with the CHG 2008 mandate itself, which indeed stipulated that the EU must be
equipped ‘to conduct several civilian ESDP crisis management missions concurrently, calling on
different capabilities, including at least one large civilian substitution mission at short notice in a
non-benign environment’. The large-scale approach did, on the one hand, lead to high
quantities of personnel being required, which sometimes challenged Member States. On the
other hand, it provided insight into the actual availability of Member States' capabilities for
ESDP, allowing a reasonable assessment of Member States' strengths and weaknesses in the
civilian realm. 743
Development and New Concept Capabilities
Another strand of work under the CHG 2008 concerned the development of new concepts and
capabilities. New concepts were agreed for civilian mission support and rapidly deployable
Civilian Response Teams (CRTs). Following agreement on these concepts, Member States
indicated potential generic availability of mission support personnel, and nominated pre-
identified individuals to a pool of experts available for possible deployment in CRT format. These
experts received specific training (financed by the European Commission, in the framework of its
Project on Training for Civilian Aspects of Crisis Management) in view of such deployment.
742 Final Report on the CHG 2008, n740, p 8.
743 ibid, p9.
210

There is no doubt that the qualitative reference list for civilian ESDP capabilities is in itself a
crucial achievement, converting the blunt instrument of "target numbers only" into a precision
tool which allows a matching of professional capacities with concrete needs. At the same time,
the CHG 2008 process has addressed the issue of quality improvement in rather generic terms,
with efforts mainly focusing on the improvement of recruitment and deployment procedures at
EU and Member States’ level and on the development of generic indications on training. 744
In May 2007, the Member States received a self assessment questionnaire in order to assess to
what extent the CHG 2008 had influenced their own capability development effort. Several
Member States managed to translate recommendations and guidelines emanating from the
CHG 2008 in practical terms, often resulting in closer cooperation between the different
stakeholders ministries involved. 745 In any case, regular reviews of Member States’ availability will
be necessary.
The Lisbon Treaty
As a preliminary remark, it has to be stated the inter-institutional issues surrounding crisis
management and the CFSP more generally will not be resolved by the Lisbon Treaty as the
Second Pillar will remain distinct in terms of procedures and institutions: in other words
intergovernmentalism remains the rule.
However, one of the most awaited changes would consist of the appointment of a High
Representative for Foreign Affairs and Security Policy as well as the creation of a European
External Service, for their promise of greater coordination and oversight when it comes to the
external relations of the Union. The Council would also have a President who shall ‘at his or her
level, and in that capacity, ensure the external representation of the Union on issues concerning
its common foreign and security policy, without prejudice to the powers of the High
744 ibid, p14.
745 J Schuyer, n741, p142.
211

Representative of the Union for Foreign Affairs and Security Policy.’ 746 Also, the General Affairs
and External Relation Council would also be split into a General Affairs Council and a Foreign
Affairs Council. The latter would elaborate the Union’s external action on the basis of external
guidelines laid down by the European Council and ensure that the Union’s action is consistent. 747
Since the Foreign Affairs Council will elaborate ‘external action’ and not only CFSP, it remains
unclear how the Commission will be represented. 748
The changes for ESDP, renamed the Common Security and Defence Policy, in the institutional
context are few. The PSC is specifically mentioned in terms of the relationship with the High
Representative and the coordination of the civilian and military aspects of the Petersberg tasks.
The EDA is also specifically mentioned. More notably, the Treaty expands the scope of
operations led within the Petersberg tasks to include joint disarmament operations,
humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and
peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and
post-conflict stabilisation. 749
The Lisbon Treaty also establishes Permanent Structured Cooperation: those Member States
whose military capabilities fulfil higher criteria and which have made more binding
commitments in this area with the most demanding missions shall establish permanent
structured cooperation within the Union framework. 750 In other words, the Lisbon Treaty ‘should
not be regarded as a panacea’ 751 as in spite of the presence of positive developments, CFSP will
still be subject to a distinct set of rules.
The Question of Coherence
746 Article 15(6) new TEU.
747 Article 16(6) new TEU.
748 See S Duke, n710, p100.
749 Article 43 new TEU.
750 Article 42(6), new TEU.
751 S Duke, n710, p105.
212

In the field of external relations, the coherence requirement has always occupied a special
place. 752 While trade, development and humanitarian aid fall under the supranational
Community method of the first pillar, the CFSP of which ESDP is an integral part is organised on
an intergovernmental basis and involves different players, with the Council as the key decision
maker. Moreover, one needs to highlight the absence of any clear strategic vision underpinning
EU crisis management. The existing European Security Strategy sets forth laudable aims that are
nonetheless vague in terms of specifics and implementation. Remarkably, no mention of the
interaction/coordination with other more traditional areas of Community influence is really
made. 753
As mentioned above, the main difficulties lie in the fact that conflict prevention and conflict
management have been subject to largely uncoordinated developments in the Community and
the second pillar. For many years, one of the main flaws in European foreign policy cooperation
has been the lack of permanent structures. With the establishment of the PSC, the Member
States finally gave shape to the long-expressed wish to support the EU foreign policy process
with stronger and permanent Brussels-based structures. 754 The PSC in this sense is a long-
awaited and welcome development as it established itself at the centre of CFSP and ESDP
issues. 755
The Civ-Mil Cell has played a very important role in coordinating increasingly complex and
broadly mandated operations, incorporating both civilian and military components in the overall
crisis management effort. Its impact is also palpable in the horizontal and vertical dimension of
the EU, that is in the coordination between the CFSP aspects of civilian crisis management and
752 S Vanhoonacker, ‘ESDP and Coherence Challenges in the Council’, in The European Union Crisis
Management – Policy and Legal Aspect, S Blockmans (Ed), TMC Asser Press, 2008, p146.
753 See S Biscop, n702
754 S Vanhoonacker, n752, p148
755 ibid
213

those of the Community in the one hand; and between the EU and the Member States on the
other. 756
The full association of the Commission in CFSP matters, as provided for in Article 27 TEU, is
specifically reflected in the specialised bodies dealing with civilian crisis management. As with
any CFSP working group dealing with civilian crisis management, the Commission contributes to
the work of CivCom, which in turns provides recommendations to the PSC. Moreover, the Civ-
Mil Cell of the EU Military Staff has the mandate to facilitate coordination between the
Commission and the Council. Finally, according to Article 25, it is the task of the PSC to
supervise the implementation of civil crisis management operations without prejudice to the
responsibility of the President and the Commission, whereas the Commission is bound to inform
the PSC of the measures it has adopted or is envisaging. 757 Regarding the specific aspect of the
implementation of cross-pillar action, the new EULEX KOSOVO mission 758 will certainly ‘be the
litmus test as it will combine en ESDP police mission with Community action to strengthen the
administration of Kosovo. 759
However, one has to pinpoint the lack of continuity inherent in the system of rotating
Presidencies, which is somewhat compensated by the Council General Secretariat and the
SG/HR, who plays a significant role in terms of visibility of the EU external action. The Secretariat
has lately expanded its staff and functions and is now also involved in the formulation and
implementation of crisis management decisions. However, the fairly new-born operational ESDP
still has a rather limited acquis and cannot proceed independently but rather as part of a larger
EU/EC external action, hence requiring further coordination.
756 ibid, p93
757 F Hoffmeister,’Interpillar Coherence in the EU’s Civilian Crisis Management’, in The European Union
Crisis Management – Policy and Legal Aspect, S Blockmans (Ed), TMC Asser Press, 2008, p176.
758 See supra.
759 F Hoffmeister n757, p177.
214

The EU as an Actor in Missions
Peacekeeping has become one of the headline goals of the European Union’s security and
defence policy and a manifestation of its participation in the international area. Since the early
stages of European integration, the process of formulating and operating a common foreign,
security and defence policy has been characterized by the interlacing of common interests with
national interests of Member States. 760 Today’s European Union’s role in leading peacekeeping
operations is undeniable.
The ESDP gathered momentum from 1999 when the European Council in Helsinki decided a
number of headline goals evolving around the Petersberg tasks. The Headline Goal of crisis
management provided for the creation of a Rapid Reaction Force comprising 50, 000-60, 000
troops to perform the Petersberg tasks, to be deployable within 60 days and capable of being
sustained for at least a year. It was completed in May 2003, when the Capability Conference
declared that the EU now has operational capability across the full range of Petersberg tasks,
limited and constrained by recognised shortfalls. 761
The civilian and military management projections of the Union are now detailed in the Headline
Goal 2010. 762 The military projections of the Union focus on interoperability, deployability and
the sustainability of deployed troops, and the ability ‘to deploy force packages…either as stand
alone force or as part of a larger operation enabling follow-on phases…based on the EU
battlegroups concept.’ 763 The battlegroup concept is based on ‘combined arms, battalion sized
force and reinforced with Combat Support and Combat Service Support elements…formed by a
Framework Nation or by a multinational coalition of Member States.’
760 S Duke, The Elusive Quest for European Security: From EDC to CFSP, Basingtoke, Macmillan Press, 2000,
12-81, in N Tsagourias, ‘EU Peacekeeping Operations: Legal and Theoretical Issues’, European Security
Law, M Trybus and N D White (Eds), Oxford University Press 2007.
761 Declaration of EU Capabilities, Capability Conference, Brussels, 19 May 2003.
762 Headline Goal 2010, available at http://ue.eu.int/uedocs/cmsUpload/2010%20Headline%20Goal.pdf
763 General Affairs and External Relations Council Conclusions, Brussels 17 May 2004, approved by the
European Council 17-18 June 2004.
215

The brief overview of ESDP operations below illustrates the cross-pillar aspect of EU crisis
management and the institutional differences stemming from it.
Overview of selected EU Peacekeeping Operations
Police missions
The Union Peacekeeping Policy has been gradualist but expansive. 764 In this respect, 2003
constituted a big step as it marked the launch of EU first peacekeeping operations. The first
Union operation was the EU Police Mission (EUPM) in Bosnia and Herzegovina, launched on 1
January 2003. 765 This operation followed the UN International Police Task Force (IPTF). EUPM
was created following an invitation by the BiH government. It was welcomed, but not authorized
by the Security Council in Resolution 1396. The EUPM is part of the broader EU rule of law
follow-up in BiH. 766 This is reflected by the chain of command where the EU Special
Representative for BiH acts as an intermediary between the SG/HR on the one hand and the
Head of Mission on the other. 767 EUPM’s mandate was ‘to establish sustainable policing
arrangements under BiH ownership in accordance with best European and International Practice,
thereby raising BiH standards’ 768 through monitoring, mentoring and inspecting. The mission
does not confer executive powers or authorize the deployment of an armed component.
Approximately 200 EU police experts monitored, mentored and advised the country’s police
force with a view to fighting organised crime. A second policing mission was established in DRC
in 2005, known as the Integrated Police Unit (IPU). EUPOL Kinshasa was designed to support the
country’s transition process by monitoring, mentoring and advising IPU as part of a country-
wide policing force. 769 A long-term goal of providing strategic support for police reform has also
764
G Lindstrom, ‘On the Ground: ESDP Operations’ in N Gnesotto (ed), EU Security and Defence Policy: the
First Five Years(1999-2004), Paris Institute of Security Studies, n 111.
765
Council Joint Action 2002/210/CFSP, OJ L-70/01; Council Joint Action 2005/825/CFSP OJ L-307/59.
766
Art 7 EUPM Joint Action.
767
Art 6 and 7.
768
Council Joint Action 2002/210/CFSP, OJ L-70/01, Annex
769
Council Joint Action 2004/847/CFSP of 9 December 2004, OJ 2004 L 182/41.
216

underpinned the EU’s police missions in the Palestinian Territories since 2005 (EUPOL COPPS) 770
and in Afghanistan since 2007 771 . The content of police missions falls within the ambit of the
second Pillar, even if the objective of long-term stabilisation of a developing country may
sometime also constitute a development policy objective. Accordingly, ESDP police missions
cannot be seen as encroaching on the first Pillar. 772
Rule of Law missions
On 16 July 2004 EUJUST THEMIS was launched in Georgia and operated until July 2005. This was
the first EU rule of law mission whose mandate was to assist and reform Georgia’s criminal
justice sector by supporting and providing guidance to local authorities. The operation consisted
of field experts and was part of the civilian aspect of ESDP. It was established on the invitation of
the Georgian Government and was limited to the Member States of the EU. Nevertheless, the
serious question of its compatibility with Article 47 TEU arises as the latter objective also figures
among the Community’s development policy (Article 177(2) TEC) and the Community’s policy of
financial and technical assistance to non-developing country (Article 181a TEC). The question is
therefore to know whether the content of rule of law missions falls under the Second pillar. This
is the case if the mission deploys on a large scale Member States’ experts from the judiciary, the
criminal justice or penitentiary system whose tasks are to monitor and advise their peers in the
receiving country in time of crisis. 773 However, where the mission consists primarily of legal and
political advice in reforming the public sector, such activity might also be carried under the first
Pillar. Indeed, the Community provided Georgia with technical and financial assistance under the
TACIS Regulation, 774 including in public sector reform. After the reform of the Community’s
external financial instruments, relevant rule of law programmes can nowadays be financed from
770
Council Joint Action 2005/797/CFSP of 14 November 2005, OJ 2005 L 300/65.
771
Council Joint Action 2007/369/CFSP of 30 May 2005, OJ 2005/L 139/33.
772
F Hoffmeister, n 757, p164.
773
F Hoffmeister, n757, p165.
774
Regulation (EC) no 99/2000 of 29 December 1999, OJ 2000 L12/1.
217

the European Neighbourhood Instrument, the Development Instrument on a country-specific
basis or the Stability Instrument on a thematic instrument. 775
Civilian administration missions
The situation becomes more complicated in this situation. Article 3(2) of the Community Stability
Instrument provides for the Community support for ‘effective civilian administration’. This choice
of the Community legislator is unlikely to face any challenge from the ECJ. 776 Against that
background, it is not surprising that ‘CFSP civilian administration missions’ remain exceptional.
However, EU action in Kosovo since 1999 showed how easy an amalgam can be made between
EU/EC action. 777 With the adoption of UN-Security Council Resolution 1244 (1999), the UN-
Secretary General was authorised to deploy a civilian presence in Kosovo (UNMIK).
Responsability for reconstruction and economic development was assigned to the EU, which
assumed this task by adopting a CFSP measure in 1999. 778 Later the Council adopted a
Community Regulation on the basis of Article 308 TEC, providing for budgetary assistance to
UNMIK. 779 A new role for the EU in Kosovo, including elements of rule of law, police justice and
civilian administration was then prepared in 2006/2007. 780 Therefore, the ongoing EULEX
KOSOVO operation has a very broad mission statement. 781 Its mandates is to assist the Kosovo
institutions, judicial authorities and law enforcement agencies in their progress towards
sustainability and accountability and in further developing and strengthening multi-ethnic
justice system. It is called upon to do so ‘in full cooperation with the European Commission
Assistance Programmes’. 782 This mission is hence characterized by a preponderance of CFSP
775
For more details, please see F Hoffmeister, n757, p165.
ter, n757, p165-166.
776
See Part IV of this Report.
777
F Hoffmeister, n757, p 167.
778
Council Joint Action 1999/522/CFSP of 29 July 1999; OJ 1999 L 201/1.
779
Regulation (EC) no 1080/2000 of 22 May 2000, OJ 2000 L 122/27.
780
F Hoffmeister, n757, p168.
781
Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Rule of Law Mission in
Kosovo, EULEX KOSOVO, OJ 2008 L 42/92.
782 F Hoffmeister, n757, p168.
218

tasks in the police and judicial field, including executive responsibilities. 783 This example confirms
the impression that the division between first and second Pillar very much depends on a case-
by-case basis. It also, and perhaps more importantly, illustrates the need for a more integrated
approach.
Civil Protection
The fourth area of EU civilian crisis management identified by the Feira European Council in the
aftermath of the Kosovo crisis in 1999 and the influx of refugees into neighbouring countries
relates to civil protection. Here again, the question of delimitation of Community powers is
raised. 784 On the one hand, Article 3(u) TEC enumerates ‘measures of civil protection’ as a field of
Community activity. On the other hand, the EC Treaty does not contain a specific policy title on
civil protection. The relevant Community mechanism is a Council Decision of 23 October 2001 785
followed by an implementing Decision of the Commission. 786 The Community mechanism is
designed to provide an immediate reaction in case of natural or man-made disaster. The
Member State concerned may request the Community Monitoring and Information Centre (MIC)
to provide logistical assistance by informing the civil protection services of the other Member
States. The latter can then decide whether and how to provide civil protection teams to the
Member State concerned. Interestingly, the MIC can also become active at the request of a non-
Member State, as it happened in response to the earthquakes in Algeria, Morocco, Iran, Pakistan
and the United States.
Can this mechanism also be used as a tool for facilitating and supporting an EU crisis
management operation? Recital 12 of the Council Decision establishing this mechanism
envisaged the scenario ‘under certain conditions to be determined’. The details were spelled out
783 ibid.
784 ibid
785 Council Decision 2001/792/EC of 23 October 200, OJ 2001 L 297/7, recast by Council Decision
2007/779/EC of 8 November 2007, OJ 2007 L314/9.
786 Commission Decision of 29 December 2003, OJ 2004 L 87/20.
219

in a Joint Declaration of the Council and the Commission of 29 September 2003 on the use of
the Community Civil Protection Mechanism in crisis management referred to in Title V of the
TEU. 787 According to this declaration, the Presidency may determine after consultation with the
Member States and the Commission that an EU crisis management operation should contain an
element of civil protection under the Community mechanism. From a legal point of view, this the
Joint Declaration ensures that the Community civil protection mechanism is not simply replaced
by a CFSP operation. Rather, in line with Article 47 TEU, the Community mechanism is explicitly
triggered under its own terms and put a the disposal of a larger CFSP mission with due respect
for the applicable procedures under each pillar. 788
It is also worth mentioning two other operations: the first EU military operation and the first
operation that happened outside the EU territory. The second ESDP operation was operation
Concordia in FYROM, which was also the first EU military operation. 789 The operation was
launched in March 2003, following an invitation by the government of FYROM, and followed
NATO’s operation ‘Allied Harmony’. The EU had already played a role in FYROM at the time of
the crisis in Kosovo, following its regional approach to South-Eastern Europe; when the tensions
increased in early 2001 the EU and NATO undertook coordinated efforts to avoid an escalation;
resulting in the 13 August 2001 Ohrid Framework Agreement. 790 The Security Council did not
create the operation, but in Resolution 1371 of 2001 it expressed its support for the
establishment of a multinational security presence in FYROM. Its mandate was to ‘contribute to
a stable, secure environment, to allow the Macedonian Government to implement the Ohrid
Framework Agreement. 791 Operation Concordia benefited from NATO’s assets, following the
787
Council Document 10639/03, non published.
788
F Hoffmeister, n757, p169.
789
Council Joint Action 2003/92/CFSP, OJ l-34/26.
790
F Naert ‘ESDP in Practice: increasingly Varied and Ambitious Operations’, in European Security Law, M.
Trybus and N. D. White (Eds), Oxford University Press 2007, p68.
791
See www.president.gov.mk. The negotiation of the Framework Agreement was facilitated by the EU and
US special representatives; the agreement provided for non-discrimination and the equitable
220

‘Berlin Plus’ Agreement between the EU and NATO on the sharing of assets, whereas France was
designated the ‘framework nation’. The mission consisted of 357 personnel from EU Member
States, and from third countries such as Canada, Bulgaria, Turkey, Iceland, Romania and Norway.
The operation was concluded on 15 December 2003.
The fourth ESDP operation is operation ARTEMIS launched in Bunia in the Democratic Republic
of Congo from 12 June until 1 September 2003. It followed the escalation of ethnic violence that
hindered the provision of humanitarian assistance, created refugees and displaces persons, and
threatened to derail the peace process. It was established after the Security Council, acting
under chapter VII, determined in Resolution 1484 of 2003 that the situation in the Ituri Region
and in Bunia constituted a threat to the peace process and security in the Great Lakes region
and authorized the deployment of an Interim Emergency Multinational Force (IEMF) in close
coordination with MONUC until 1 September 2003. The Security Council also authorized the
Member States participating in the IEMF to take all necessary measures to fulfil its mandate.
Following this, operation ARTHEMIS was launched; its mandate was the stabilisation of the
security conditions and the improvement of the humanitarian situation in Bunia, to ensure the
protection of the airport, the internally displaced persons in the camp ob Bunia and, if the
situation requires, to contribute to the safety of the population, United Nations and the
humanitarian presence in town. 792 It was the first operation launched outside Europe and France
was again Framework Nation.
Financing of ESDP Operations
A further controversial structural issue involves financing of ESDP operations. Since the inception
of CFSP, inter-institutional disputes between Council and Parliament on questions related to
representation of the Albanian minority in public life, the development of a decentralized government, the
use of the Albanian language, and the recognition of the State.
792 Council Joint Action 2003/424/CFSP, OJ L-143/50.
221

financing have been quite frequent. 793 Originally, Article J.11of the Maastricht Treaty merely
stated that “administrative” expenditure would be charged to the EU budget, while “operating”
expenditure would either follow the same principle or be charged to the Member States “with a
scale to be decided”. In either case, decision had to be unanimous. The Amsterdam Treaty,
which widened the scope of possible CFSP operations to include the Petersberg tasks, added an
explicit dimension to CFSP. The new Article 28 TEU maintains that administrative expenditure
would be charged to the EU budget. Regarding operating expenditure, the Treaty envisaged two
main options: it could be charged to the EU budget as well (under the separate heading for
CFSP); or not. The latter is always expected to be the case with operations “having military or
defence implications”: for these also, the provisions laid down in Article 23 on qualified (or
constructive) abstention apply, whereby abstaining Member States are exempt from financial
contributions. Yet, no stringent indication is given on the scale of contribution for such military
operations; the relevant expenditure, in fact can be shared either according to the GDP ‘key’ or
otherwise if the “Council unanimously decides so”. Such a complicated system was clearly the
result of an inter-institutional compromise between Council and Parliament. 794 In addition, there
are also other actions financed under the first pillar, such as humanitarian aid, human rights,
election monitoring, giving rise to confusion and lack of consistency. Moreover, the actual
practice of financing external actions has further increased the opaqueness of the whole system.
A good example is the activity of CFSP Special Representatives. In principle, they fall under
budgetary line B-8 and the exclusive supervision of the Council, following a Decision of the
Council of 30 March 2000. 795 In practice, they can be financed in a mixed and improvised way,
combining first pillar regional programmes (PHARE, TACIS, MEDA, CARDS, ECHO), the
emergency reserve funds, and/or national secondments and contributions. 796
793
A. Missiroli, €uros for ESDP: Financing ESDP Operations, Institute of Security Studies, Occasional
Papers, no 45, June 2003, p6.
794
EU Crisis Respons Capability Revisited, Crisis Group Europe Report no 160, 17 January 2005, p7
795 ibid, p8
796 ibid, p8, footnote 6.
222

Needless to say, this juggling with allocation lines directly emphasizes the interpillar nature of
the Union’s foreign policy, which does not facilitate scrutiny or accountability. It also makes the
planning of comprehensive and durable operations very difficult and dependant on national
interests. 797
It is almost universally accepted that ad hoc funding is not optimal. It neither assures long-term
commitment nor is conducive to rapid deployment. 798 The current budget to finance (non-
military) operations under CFSP reached its limit for 2007 of €140 m. Most importantly, large
Member States, often the most substantial contributors, end up paying twice: first through
allocation of common costs linked to GDP and then by virtue of the expenses they bear
individually when deploying. 799 Following its decision of 22 September 2003, which called for a
permanent financing mechanism; the Council established Athena, a mechanism to administer
the financing of the common costs of European Union operations having military or defence
implications. 800 The Athena mechanism for financing military operations – which covers start-up
costs, but not ongoing costs and per diems - is financed by EU Member States (except
Denmark). Consequently, the size of its funds is limited only by political will and Member State
internal budgetary scrutiny. The Athena budget was €60 million in 2005 and €68 million in 2006
(for comparison, the UN’s 2005 Peacekeeping budget was US$ 4.74 trillion). 801
Assessment of the relevance of the application of international humanitarian law EU operations
Before addressing this question, it is essential to bear in mind that IHL treaties are only open for
signature and ratification to States. It is indeed common knowledge that IHL came into being as
a law regulating belligerent inter-States relations. In this respect, it was thus perfectly consistent
with State-centric modern international law deriving from the 1648 Westphalia Peace, which has
been characterized ever since as a system regulating relations between the primary subjects of
797
ibid
798
ibid, p11.
799
ibid
800
Council Decision 197/04 of 23 February 2004.
801
G Gya, ESDP and EU Mission Update, European Security Review, Number 36, December 2007, p4.
223

international law. 802 However, as Sassoli points out, humanitarian law would today lapse into
irrelevance “unless understood […] as a law protecting war victims and States and all other who
wage war”. 803 Within an international society where non-State actors play an increasingly pivotal
role, “States are less and less the sole players on the international scene, and even less so in
armed conflicts.” 804 When dealing with the issue of the applicability of IHL to multinational
peacekeeping forces, legal scholarship has far mainly focused on the United Nations, whilst
those led by other organisations have largely remained in the shadows apart from NATO. 805 This
is largely due to the fact that scholars have mainly focused on the institutional dimension of the
ESDP as well as on the progressive impact of the EU constitutional developments on EU’s
institutions.
This is understandable considering that these organisations have long dominated the scene in
respect of crisis management, but one has now to take into account the latest developments
occurred in the past ten years in the EU legal, political and operational framework as well as the
consequent, increasingly prominent role played by the EU in the maintenance of international
peace and security. 806
It is widely accepted that the UN peacekeeping operations are bound to international
humanitarian law when applicable. The UN Secretary-General’s Bulletin on Observance by
United Nation Forces of International Humanitarian Law unequivocally reaffirmed that “[t]he
fundamental principles and rules of international humanitarian law […] are applicable to the
802
V Falco, Old Continent, New Wars: The European Union and International Humanitarian Law, Paper
presented at the Garnet Conference “The European Union in International Affairs”, Brussels, 24-26 April
2008), n 8.
803
M Sassoli, ‘State Responsibility for Violations of International Humanitarian Law’, International Review
of the Red Cross, vol. 84, no 846, 2002, p401.
804
ibid, p433.
805
V Falco, Old Continent, New Wars: the European Union and International Humanitarian Law, Paper
presented at the GARNET Conference, ‘The European Union in International Affairs, Brussels, 24 April
2008.
806
V Falco, n805. p 3
224

United Nation Forces when in situations of armed conflicts, they are actively engaged therein as
combatants.” 807 Some authors have argued that the approach suggested in the Bulletin should
apply not only to the UN, but also to regional organisations. 808
However, the EU appears to consider the obligations of troop-contributing States to crisis
management operations, rather than of the EU itself, of primary relevance. 809 This was implied by
the Salamanca Presidency Declaration of 24 April 2002, which states that “the responsibility for
complying with IHL, in cases where it applies, in a European-led operation, rests primarily with
the State to which the troops belong.” 810 The Declaration also refers to the EU itself, stating that
“the political and military structures of the Union […] should ensure that in exercising the
strategic direction and political control, relevant rules of international law, including IHL, are
taken into account. 811
Falco submits that due to the sui generis nature of the Union as an international organisation as
well as the still pertaining prevailing intergovernmental character of the ESDP make it
“unadvisable to apply sic and simpliciter to the EU arguments tailored to other subjects of
international law. An ad hoc assessment of the relevance of international humanitarian law
[needs to] be undertaken.” 812 The first criterion for the application of international humanitarian
law is that of intensity.
The first criterion pertains to the threshold beyond which the fighting engaged in by
international organizations may be legally qualified as an armed conflict. Although consensus on
807
Secretary-General’s Bulletin, Observance by United Nation Forces of International Humanitarian Law,
ST/SGB/1992/13, Section 1, para 1.1.
808
See V Falco, n805, p6: “On voit mal en effet sur la base de quel argument le droit applicable seait
différent en onction de l’identité de l’organisation internationale – universelle ou régionale- dont les forces
sont mandatées pour recourir aux armes sur le terrain. ” See also N Tsagourias, n704 p118.
809
M Zwanenburg, ‘Responsibility fro Violations of IHL by ESDP Operations’, The European Crisis
Management – Policy and Legal Aspects, Steven Blockmans (Ed), TMC Asser Press, 2008
810
Salamanca Presidency Declaration, 24 April 2002, DIH/Rev.01/Corr 1, para 2.
811 ibid, Preamble, para 6.
812 V Falco, n805, p6.
225

the definition of such a threshold has not yet been reached among legal and military experts,
Kolb’s view on the issue appears to represent a valuable compromise solution:
[L’] essentiel est qu’on se situe au delà d’une légitime défense sporadique et qu’on l’entre
dans des “combats” réguliers, même s’ils n’ont lieu que par à-coups ou de manière
intermittente. 813
As far as the EU military operations are concerned, it is true that three of these operations (i.e.
Concordia, Althea and EUFOR-RD Congo) were deployed in post-conflict contexts, and that no
involvement of the EU-led forces in situations entailing the actual use of armed force beyond
the required threshold of intensity has been reported.
This may not be the case for at least two of these operations, namely Artemis and EUFOR
TCHAD/RCA, both UN-mandated under Chapter VII of the Charter of the United Nations and
thus authorized to “to take all necessary measures” (including the use of armed force beyond
self-defence) to fulfil their mandate. 814 As far as the former is concerned, some experts took the
view that the fighting in Bunia did not reach the threshold of armed conflict. Other authors
acknowledged that Artemis was conducted in a dangerous environment, but argued that it “was
not confronted with major hostile action against it”. 815 However, the same commentator recalled
that on at least two occasions during the operation the EU forces were attacked and returned
fire, and that on one of these occasions two attackers were killed. 816 Other authors submit that
these kinds of hostile armed exchanges do indeed cross the threshold of application of jus in
bello and that resort to armed force by the EU troops in such circumstances should thus be
subject to the general principles of necessity and proportionality as laid down in the provisions
of IHL regulating the conduct of hostilities. 817
813
R Kolb, op. cit., p. 39 in V. Falco, n805 p7.
814
V Falco, n805, p7.
815
F Naert, n790, pp. 74-75, footnote 103.
816 ibidem, p. 75, footnote 103.
817 V Falco, n805.
226

It can also be recalled that the initial deployment of the EU troops in Chad had to be interrupted
for a few days at the beginning of February 2008 due to the outburst of violence in the country,
following the attacks carried out by the armed opposition groups against the governmental
forces in the Chadian capital N’Djamena. Mention should also be made of the fact that it is in
the framework of EUFOR TCHAD/RCA that the first casualty ever among the EU-led troops has
been reported as a consequence of hostile fire. 818 Regardless of whether IHL may have been
applicable in the specific case (a border-crossing incident in Sudanese territory, resulting in the
death of the French Sergeant Gilles Polin), 819 this tragic episode demonstrates that “any
deployment involving armed military personnel could lead to violence under certain
circumstances”. 820
Hence – despite contentions that “the applicability of international humanitarian law is
determined by the facts, not the mandate” 821 - in such a framework as the one described above,
the mandate of the operation appears to be a valuable, preliminary indicator of the possibility
that the EU troops become engaged in armed exchanges whose level of intensity triggers the
application of jus in bello. 822
The second criterion informing the scope of application ratione materiae of IHL to international
organizations pertains to their level of organization.
818
Press Release, 10 March 2008, available at
http://www.consilium.europa.eu/uedocs/cmsUpload/080310EUFORsuffersfirstfatality.pdf.
819
Press Release, 3 March 2008, available at: http://www.consilium.europa.eu/uedocs/cmsUpload/080303-
OHQMontValarien.pdf
820
AJK Bailes, ‘The EU and “a better world”: what role for the European Security and Defence Policy?’,
International Affairs, vol. 84, no. 1, 2008, p. 124, in V Falco, n805.
821 V Falco, ibid, p9.
822 ibid.
227

It is now widely acknowledged that being under a responsible command is indeed a
characteristic of the United Nations peace-support operations. Is this also the case for EU
military operations launched within the legal and institutional framework of the ESDP? The
attribution of conduct for ESDP military operations is made particularly problematic by the
multiplicity of actors involved in the establishment, deployment and functioning of each
operation, namely the EU, the troop-contributing Member States, the non-EU contributing
states and the host States. The traceability of the chain of command becomes all the more
arduous when the operations are UN-mandated under Chapter VII of the Charter of the United
Nations or when the mission takes over a NATO operation.
Another reason for the complexity of conduct attribution within the EU-led operations relates to
the ultimate intergovernmental nature of the ESDP, as well as to the fact that the EU does not
have standing armed forces of its own, and thus has to rely on Member States to contribute
troops to the specific operations. As Zwanenburg notes, the existence of a system of responsible
command - which in military terms is frequently referred to as “command and control” - is
undoubtedly one of the elements pointing to a certain level of organization. 823
In 2002, the International Law Commission launched a study on the responsibility of
international organisations, which will provide more clarity in the field. Draft Articles 4 and 5 are
of particular relevance for the purposes of the present analysis. 824 Draft Article 4 concerns the
general rule on attribution and provides that the conduct of an organ or agent of an
international organization in the performance of functions of that organ or agent is to be
attributed to the organization. Although there can be some discussions as to assess whether EU
operations can be considered as organs, there is no such hesitation with regard to the notion of
‘agents’. The term must be understood widely, as is made clear in paragraph 2 of the article, and
as defined by the ICJ in the Reparations for Injuries case:
823 Ibid, footnote 67.
824 M Zwanenburg, n809, p403.
228

The Court understands the word ‘agent’ in the most liberal sense, that is to say, any
person, who, whether a paid official or not, and whether permanently employed or not,
has been charged by an organ of the organization with carrying out, or helping to carry
out, one of its functions – in short, any person through whom it acts. 825
Clearly, the personnel of EU crisis management operations fall in this category. The EU acts
through them in carrying out the tasks defined in Article 17(2) TEU; performing these tasks is a
function of the EU as part of its ESDP. 826
Draft Article 5 concerns the attribution of conduct of organs and agents placed at the disposal
of an international organization by a State or another international organization. It deals with
the situation where the loaned organ still acts to a certain extent as organ of the lending entity.
Crisis management operations are a typical case since the personnel remain at the service of the
troop-contributing State. The commentary makes clear that that the determining factor for
attribution is the factual control that is exercised over the specific conduct taken by the organ or
agent.
At EU level, the legal status of multinational forces - i.e. the relationship between the different
international actors involved in the ESDP operations - is defined both in the Council acts laying
down the legal basis for these operations and in the relevant agreements between the EU and
third States (either troop-contributing or host states), signed under Article 24 TEU. The relevant
provisions set out in such instruments clearly reflect the dual nature of command and control
over the EU troops. 827
825 Reparations for Injuries Suffered in the Service of the Unites Nations, Advisory Opinion of 11 April
1949, 1949 ICJ Rep, 174 at 2179.
826 M Zwanenburg, n809, p404.
827 ibid
229

On the one hand, a standard clause included in the agreements with third countries
participating in the ESDP operations expressly stipulates that “[a]ll forces and personnel
participating in the EU military crisis management operation shall remain under the full
command of their national authorities”. 828 On the other hand, the same clause further provides
that “National authorities shall transfer the Operational and Tactical command and/or control of
their forces and personnel to the EU Operation Commander” 829 - which seems to point to the
conclusion that, for the specific purposes of the operation, the EU (in the person of the
Operation Commander) is indeed vested with command and control powers over the troops in
the field.
The analysis of Council acts approving each operation further corroborates this view - the joint
action adopted on the EUFOR-TCHAD/RCA 830 providing a recent example in this respect.
According to Article 6 of the said joint action (reflecting a standard formula used in the ESDP
framework), the Political and Security Committee shall exercise the political control and strategic
direction of the EU military operation “under the responsibility of the Council”. This will include
“the powers to amend the planning documents, including the Operation Plan, the Chain of
Command and the Rules of Engagement”, as well as “the powers to take further decisions on the
appointment of the EU Operation Commander and/or EU Force Commander”. The Council,
assisted by the SG/HR, will remain vested with “the powers of decision with respect to the
objectives and termination” of the operation.
Furthermore, under Article 7, the EU Military Committee shall monitor the proper execution of
the EU military operation conducted “under the responsibility of the EU Operation Commander”.
Previous practice in the framework of the Althea and Concordia operations is even more telling
828 See, for instance, Council Decision concerning the conclusion of the Agreement between the European
Union and the Kingdom of Morocco on the participation of the Kingdom of Morocco in the European
Union military crisis management operation.
829 ibidem, Article 4 (2).
830 Council Joint Action 2007/677/CFSP of 15 October 2007 on the European Union military operation in
the Republic of Chad and in the Central African Republic.
230

in this regard. For instance, Article 13 (2) of the Council Joint Action on the Althea operation 831
provided that “[t]he entire chain of command of the EU force shall remain under the political
control and strategic direction of the EU throughout the EU military operation (…)”. Similarly,
Article 1 (3) (f) of the Concordia operation SOFA 832 stated that the EU military commanders
would exercise “the military command and control of the operation”.
It flows from the analysis above that the EU has consistently been identified by both its own
Member States and third countries as the subject ultimately adopting strategic decisions
concerning the ESDP operations, thus bearing primary responsibility for the conduct of the
latter. As these elements are generally acknowledged as pointing to the actual exercise of
command and control - and, consequently, to the attainment of the necessary degree of
organization – several authors submit that the ESDP operations fulfil also the second criterion
informing the definition of armed conflict under IHL. G.J Hegelsom 833 argues that an anlaysis of
the mission, the mandate and the political environment is necessary to ascertain whether the
law of armed conflicts applies to the operation. 834 In this respect, Tsagourias submit thats the
Union “should at least declare that it will abide by the principles and rules of international
humanitarian law or promulgate a detailed list of humanitarian rules and principles that will
apply to its own peacekeeping operations.” 835
Conflict Prevention
Introduction
831
Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in
Bosnia Herzegovina.
832
Council Decision 2003/222/CFSP of 21 March 2003 concerning the conclusion of the Agreement
between the European Union and the FYROM on the status of the European Union-led Forces (EUF) in the
FYROM.
833
Member of the Legal Service, General Secretariat of the Council of the European Union.
834
GJ Hegelsom, ‘The Relevance of the Law of Armed Conflicts for the Conduct of Petersberg Tasks’,
Proceedings of the Bruges Colloquium, 26 and 27 October 2001, Collegium No 25, p115.
835
N Tsagourias, n760 p118.
231

Although the EU has addressed conflict prevention in a systematic manner only recently, it is not
as such a novel subject within the EU. One could submit that the establishment of the European
Communities in the course of the 1950’s was at least in part a measure of conflict prevention in
Europe and in the world at large. 836 The Preamble of the European and Coal and Steel
Community recalled the famous phrase of the Schuman Declaration that said that “world peace
can be safeguarded only by creative efforts commensurate with the dangers that threaten it’ and
that ‘the contribution which an organised and vital Europe can make to civilization is
indispensable to the maintenance of peaceful relations.” 837
In the sphere of external relations, the competence of the European Communities was for a long
time limited to economic areas and, to some extent, development. However, coordination
between EC Member States in the field of broader external relations gradually developed
beyond this limit. At first, this occurred outside the EC, in particular by the establishment of the
European Political Cooperation (EPC) in 1970, which was later given a treaty basis by the Single
European Act in 1986. While the latter essentially restricted the EPC’s competence regarding
security questions to “political and economic aspects of security”, conflict prevention other than
by military means clearly fell within the EPC scope. Nevertheless, it appears that the EPC hardly
dealt with conflict prevention.
This picture began to change in 1992 with the Maastricht Treaty which established the EU and in
essence brought the EPC into the institutional framework of the EU, renaming it CFSP. The
objectives of the CFSP included “to preserve peace and strengthen international security” 838 . The
potential of the conflict prevention under the CFSP was noted quite soon at the highest level: in
836 J Wouters and F Naert, ‘The EU and Conflict Prevention: a Brief Historic Overview’, in V Kronenberg and
J Wouters (Eds), The European Union and Conflict Prevention – Policy and Legal Aspects, TMC Asser Press,
The Hague, 2004, p 33.
837 Treaty establishing the European and Coal and Steel Community, Paris 18 April 1951, expired on 23
July 2002.
838 Article 11-1 TEU
232

1992, the Report to the European Council in Lisbon on the likely development of the CFSP with a
view of identifying areas open to joint actions vis-à-vis particular countries stated that 839 :
[…] the CFSP contribute to ensuring that the Union is less reactive to events in the
outside world, and more active in […] the creation of a more favourable international
environment. This will enable the European Union to have an improved capacity to
tackle problems at their roots in order to anticipate the outbreak of crises. 840
Today’s EU approach to conflict prevention dates back to two main sources. 841 One is connected
to developments in the mid- 1990’s when the EU witnessed mass killings in regions like the
Western Balkans and sub-Saharan Africa. Although these conflicts had been recognised as
critical cases before the conflict truly ignited, the international community, including the EU and
its Member States, did not intervene early enough to avoid genocide and massive destruction.
The other development that acted as an impetus to the current EU approach towards conflict
prevention is more recent and stems from the EU’s experience both in the Kosovo war and after
September 11, when Washington dominated international crisis management to such extent
that the Europeans had no choice but to follow the lead of the United States.
In this respect, the beginning of this century saw three policy papers published in short
succession:
- Joint report of the SG/HR and of the EU Commissioner for Foreign Relations
(2000), 842
- Communication of the European Commission on Conflict Prevention (2001), 843
839 839
J Wouters and F Naert, n836 p35.
840
This Report was published as Annex I to the Conclusions of the Lisbon European Council, 26-27 June
1992, Bull EC 6-1992, para I.31.
841
R Rummel, ‘The EU’s Involvement in Conflict Prevention’, in V. Kronenberg and J. Wouters (Eds), The
European Union and Conflict Prevention – Policy and Legal Aspects, TMC Asser Press, The Hague, 2004, p
69.
842
Joint report of the Commission and the Council of 30 November 2000 on Improving the Coherence
and Effectiveness of the European Action in the Field of Conflict Prevention, Doc no 14088/00
233

- EU Programme for the Prevention of Violent Conflicts (2001). 844
Although each of these papers looked at conflict prevention from a different perspective, certain
themes, such as efficient institutional cooperation, a need to strengthen the available
instruments, and the involvement of Member States, were prevalent. 845
A number of elements pertaining to the EU’s current institutional framework hinder the
consistency and coherence of existing instruments and activities in the field of external relations,
where conflict activities are designed and carried out. Among these elements, one could cite 846 :
- The different perceptions as to the exact nature of the different instruments. A free trade
agreement signed with a third country can have foreign political implications that might
outweigh many of the CFSP instruments mobilised by the EU in its dealings with this country.
- Member States’ bilateral policies still play a significant role in the areas of Pillar II and III. The
crisis in Iraq showed how decision-making processes and diverging Member States’ interests
and priorities in the field of CFSP sometimes makes it difficult to obtain common approaches to
crisis situations.
- Some of the conflict prevention/crisis management activities to be implemented under the
ESDP have a military dimension, often necessitating ad hoc arrangements with other existing
international bodies dealing with security affairs (UN, NATO), and impeding the inter-pillar flow
of information due to the confidential nature of many of these issues.
843
European Commission Communication of April 2001 concerning Conflict Prevention, COM (2001) final
844
Swedish Ministry of Foreign Affairs, EU Programme for the Prevention of Violent Conflicts, Stockholm,
June 2001
845
R Rummel, n840 p 71. For more information, see the chapters of S. Duke and J. Niño Perez in the same
book.
846
J Niño Perez, ‘The EU’s Instruments for Conflict Prevention’, in V. Kronenberg and J. Wouters (Eds), The
European Union and Conflict Prevention – Policy and Legal Aspects, TMC Asser Press, The Hague, 2004, p
104
234

Institutional Aspects of Conflict Prevention
The Commission
The Directorates General
The European Commission implements its external relations through five Directorates-General:
External Relations (RELEX), Trade, Enlargement, Development and Humanitarian Aid. DG RELEX is
subdivided into a number of directorates. Directorate A is responsible for Crisis Platform – Policy
Coordination for CFSP which includes the Conflict Prevention and Crisis Management Unit. DG
Development contributes to formulating EU development assistance and cooperation policies
and directly manages relations with over 70 ACP countries under the framework of the Cotonou
Agreement as well as twenty Overseas Countries and Territories.
DG Trade is charged with conducting EU international commercial policy as well as key aspects
of intellectual property, investment and competition policy. It has had little directly to do with
conflict prevention and management. However, the systematic inclusion of human right clauses
in trade agreements with third parties can be read as a forward-looking conflict prevention
measure. These DGs are responsible for managing the external action budget, nearly 7 billion €
in 2004, over 40% in pre-accession aid for the applicant countries. The specific amount left to
CFSP was only 0.6% - under 50 million. A separate budget line devoted to the humanitarian aid
and relief – 490 millions € in 2004, is managed by ECHO.
The Commission has a relatively unchallenged role in trade, development cooperation and
humanitarian assistance but a much modest one on CFSP, which remains mainly in the domain
of intergovernmentalism. Still, its management of the CFSP budget gives it influence. 847 Its
comparative advantage in conflict prevention and management lies in areas closely linked to
long-term structural issues or immediate humanitarian needs. 848
847 Article 28 TEU states that the administrative costs arising from CFSP are borne by the EC budget.
Operational expenditure is met either from that budget or from Member State contributions at the
Council’s discretion.
848 ‘EU Crisis Response Capability Revisited’, Crisis Group Europe Report no 160, 17 January 2005, p13.
235

European Commission Delegations
The Commission has over 100 delegations in the world. Since 2000, heads of delegation have
been expected to take a more active role in conflict prevention and management, in particular
through incorporating conflict indicators in CSPs. However, it seems that understaffing has
somewhat restricted their ability to do this in any serious way.
Conflict Prevention and Crisis Management Unit
The Conflict Prevention and Crisis Management Unit of DG RELEX is responsible for coordinating
Commission conflict prevention activities. It provides expertise and training to headquarters and
field staff and promotes conflict assessment methodologies within the Commission. The unit,
which was launched in 2001, actively contributes to CFSP debates within the Council and
maintains contacts with other organisations active in conflict prevention (UN, OECD, G8, Council
of Europe, OSCE and international financial institutions). Despite its extensive mandate, the unit
has a small staff. For example, in 2005, two officials dealt with conflict prevention aspects of
Country Strategy Papers, Country Conflict Assessments, and demobilisation, disarmament and
reintegration (DDR) programs, early warning and assistance to third countries in the fight
against terrorism and contacts with partner organisations. The Crisis Management Policy section
was again run by two officials, who deal with the Committee for Civilian Aspects of Crisis
Management (CIVCOM) procedures.
In close cooperation with the Council Secretariat and the Joint Situation Centre, the unit
provides the Council with a watch-list of potential crisis states on which the EU should focus.
This is given to each Presidency and periodically reviewed. The unit could play a more proactive
role if it were kept better informed of the priorities for discussion in the Council's various foreign
policy institutions. 849
The Council
849 ‘EU Crisis Response Capability Revisited’, ibid, p13.
236

The High Representative and Council Secretariat
The Council of the EU is supported by a Secretariat headed by the Secretary General/High
Representative (SG/HR), currently Javier Solana. The Secretariat's main function is to prepare
meetings of the Council in its many formations and its preparatory bodies, such as the COREPER,
the Political and Security Committee (PSC) and the Military Staff (EUMS). As the lubricating oil of
the Council machinery, it has considerable influence over policy development. The Deputy
Secretary General (an increasingly influential post) is responsible for the Secretariat, leaving the
Secretary General free to focus on foreign policy. The Secretariat is divided into nine
Directorates-General, one of which deals with External Relations and is further divided into nine
directorates for geographic and functional areas.
Desiring to reinforce the civilian aspects of EU conflict management, member states decided in
November 2003 to put in place a Planning and Mission Support Capability within the Secretariat.
The staff is allocated to areas such as police, rule of law, civilian administration, civilian
protection (that is, the four key areas identified by the Helsinki Headline Goal) and is to be
responsible for lessons learned/best practices and mission support (administrative and logistical
planning, start-up, sustaining and liquidation of all civilian conflict management operations).
Policy Planning and Early Warning Unit
The Policy Unit - the shortened name for the Policy Planning and Early Warning Unit has staff
drawn from the Member States, the Secretariat and the Commission and reports to the High
Representative. It is SG’s Solana's eyes and ears, providing him daily policy guidance. Divided
into eight task forces, it has rapidly become an extended personal cabinet. This was
undoubtedly necessary given the limited resources at SG’s Solana's disposal - a major reason
why the notion of a double-hatted foreign minister, able to call on both Council and (far greater)
Commission resources, gained currency.
237

The documents setting up the Policy Unit assigned it an early warning function. Its ability to
perform this task is assisted by access to the political reporting from Commission delegations
worldwide, as well as information gathered by ECHO personnel. Since the unit is focused
essentially on CFSP/ESDP matters, there is risk of overlooking the dynamics of aid, trade, human
rights, justice and democracy policies in the EC budget. In this respect, again, the need for
improved consultation between the relevant services of the Council and Commission is clear.
Joint Situation Centre (SITCEN)
The Policy Unit established a Joint Situation Centre (SITCEN), without dividing walls, by joining
the (civilian) Policy Unit and the military Situation Centre. The SITCEN opened on 1 January 2003,
to coincide with the start of the EU's police mission (EUPM) in Bosnia. It has recruited
intelligence officers to facilitate information exchange with member states and put secure
communications networks into place. It combines early warning, situation monitoring and
assessment, provides facilities for a crisis task force and serves as an operational point of contact
for the High Representative.
Its tasks include risk assessment, ad hoc intelligence briefings and urgent reports in the wake of
terrorist attacks outside the EU. Reports are distributed to members of the PSC and EUMC. The
RELEX Commissioner also receives some information.
In the aftermath of the terrorist attack in Madrid in March 2004, new attention has been devoted
to the SITCEN's potential ability to examine threats within EU borders. At the Justice and Home
Affairs Council meeting of 8 June 2004, SG Solana suggested charging it to produce intelligence
analyses to support EU institutions as well as member state national police services. However, its
new role on terrorism and intelligence cooperation will be confined to analysing information,
with member states retaining final control of operational decisions.
General Affairs and External Relations Council (GAERC)
The Council is composed of one representative at the ministerial level from each member state,
who is empowered to commit the government and is politically accountable to the national
238

parliament. Ministers for foreign affairs attend Council meetings in the configuration known as
the General Affairs and conflict management. Composed of permanent representatives of the
member states, it normally meets weekly, as well as twice a year at defence chief level. It is
presided over for three years by an elected chairman, normally a four-star general, preferably a
former defence chief. The current chairman, Italian General Mosca Moschini (who replaced
Finnish General Haggland in April 2004), participates in the PSC and attends Council meetings
when decisions with military consequences are made. The agenda is prepared by a working
group and assisted by the EU Military Staff (EUMS). EUMC is responsible for all military aspects
of current and potential crises, makes financial assessments of operations and exercises,
evaluates operational concepts and options and monitors their implementation, but it is not a
planning unit.
European Union Military Staff (EUMS)
The EUMS, established in January 2001, has over 130 military personnel. Its function is not
mission control but to give the Council strategic options, which are, in turn, evaluated by the
EUMC. It is in practice, therefore, the EUMC's support body although formally it is a department
of the Council Secretariat directly attached to the High Representative. Like the EUMC, it is far
from being an incipient EU military headquarters.
In the framework of the EU response to the crisis in Darfur (Sudan) May 2004, an officer from the
EU Military Staff participated in the African Union (AU)-led reconnaissance mission to Darfur,
which has planned and prepared the ceasefire monitoring mechanism. An officer from the EUMS
and EU observers has been temporarily assigned to the AU headquarters to assist in putting into
place the logistical arrrangements for the ceasefire observer mission and its protection force and
to advise on planning the extended AU mission.
As noted above, the deal on operational planning brokered in the December 2003 European
Council by the UK, France and Germany foresees establishment of a planning cell within the EU
239

Military Staff with civil and military components. The rationale is to have an autonomous
planning capacity within the Council Secretariat for ESDP operations that are conducted without
NATO assets (outside "Berlin Plus" arrangements). This cell should, inter alia, "link work across
the EU on anticipating crises, including opportunities for conflict prevention and post-conflict
stabilisation; assist in planning and coordinating civilian operations; develop expertise in
managing the civilian/military interface; and do strategic planning for joint civil/military
operations".
Committee for Civilian Aspects of Crisis Management (CIVCOM)
CIVCOM was established by a Council decision on 22 May 2000 and met for the first time less
than a month later. Staffed by member state representatives, it reports formally to COREPER
(although it receives guidance from and provides information to the PSC) on issues relating to
civilian aspects of crisis response and attempts to coordinate Commission and Council
contributions. It was responsible for ensuring that the EU met its four "headline goals" in civilian
crisis response in November 2002 though, as discussed below, problems remain.
A Crisis Response Co-ordination Team (CRCT) has been created for inter-service coordination in
response to a given crisis. Unlike CIVCOM, it is not a Council working group or a standing
structure but is pulled together from senior officials in the Commission and Council Secretariat
during a crisis. It drafts a Crisis Management Concept (CMC) setting out EU political interests
and objectives and options for a comprehensive response.
As ESDP moves from concept to reality (with four missions launched in 2003 alone, for example)
CIVCOM is gathering more authority and becoming a more active body. This process, with the
Planning and Mission Support Capability for ESDP civilian operations being set up in the Council
Secretariat, may indicate a developing imbalance in management of civilian crises in favour of
the Council, with the Commission increasingly confined to financial and administrative roles.
240

European Union Monitoring Mission (EUMM)
The EUMM is tasked with monitoring political and security developments (particularly border
monitoring, inter-ethnic issues and refugee return). It provides the Council with information but
also can help build confidence in unstable situations. The monitors are unarmed and wear white
civilian clothing. EUMM's chief is appointed by the Council and reports to it through the High
Representative. The problem with EUMM, consistently raised by Crisis Group in reporting on the
Balkans 850 , is its lack of coordination with other CFSP elements. It should be fully integrated into
the EU security apparatus in order to fulfill its potential.
European Parliament
While restricted to consultation on CFSP and ESDP, the European Parliament (EP) has used its
claim to be the EU's sole democratically representative institution to increase its profile and
influence gradually. Its Committee on Foreign Affairs, Human Rights, Common Security and
Defence Policy (AFET) is the principal EU public forum for debating issues with foreign policy
implications. It is regularly informed by the Presidency, the High Representative and the
Commission on CFSP's broad institutional developments as well ESDP operations. Since 1999
the Council has reported annually to the AFET Committee on the implications of CFSP for the
Community budget (for which the EP has codecision powers).
Since the beginning of the sixth legislature in June 2004, a new Sub-Committee on Security and
Defence has assisted AFET on ESDP matters. Its meetings so far have dealt mainly with the state
of play of ESDP, the EU operation (Althea) in Bosnia-Herzegovina and European arms exports.
Comments
The European Commission has an extensive set of instruments for structural long-term and
direct short-term preventive action. The Commission has been active in defining and supporting
850 See, for example, ‘Macedonia: No Time for Complacency’, Crisis Group Europe Report N°149, 23 October
2003.
241

many conflict-related programmes such as election monitoring and assistance, police and justice
reform, Disarmament, Demobilisation and Reintegration (DDR), Small Arms and Light Weapons
(SALW), as well as initiatives to tackle valuable natural resources as drivers of conflict ( for
example the Kimberley process regarding conflict diamonds). In the second pillar, the Council
has made welcome advances in the field of structures and capabilities for civilian and military
crisis management developed in the framework of ESDP, diplomatic dialogue, and increasing
preventive diplomacy and mediation efforts of the GS/HR Solana and Special Representatives.
The Göteborg Programme stipulates that the EU “must use these instruments in a more targeted
and effective manner in order to address root-causes of conflict such as poverty, lack of good
governance and respect for human rights, and competition for scarce natural resources”.
However, although there is progress in the policy debate on coherence, most of Commission
and Council activities are used in a narrow way and are not embedded in a coherent conflict
sensitive approach. This is also reflected in the tendency for the EU not to monitor its activities
in the field of trade, development, and environment for their impacts on conflict-prone and
affected contexts, either in their design or in their implementation. If the EU wants to use all its
instruments efficiently, there is a real need to institutionalise conflict sensitivity in all relevant EU
policies. 851
Conflict Prediction
The first phase of any effective conflict prevention is conflict prediction or early warning. Within
the Commission, a variety of early warnings mechanisms exist. 852 In the first place, the
Commission had developed indicators for the root causes of conflict. The early warning/root
causes for conflict have been developed mainly through the Conflict Prevention Network (CPN),
initially backed by Michel Rocard, which was designed to provide the Commission with analyses
851
‘Five Years after Göteborg, the EU and its Potential in Conflict Prevention’, EPLO Report, September
2006, p18.
852
S Duke, ‘Institutional and Financial Dimensions’, in V. Kronenberg and J. Wouters (Eds), The European
Union and Conflict Prevention – Policy and Legal Aspects, TMC Asser Press, The Hague, 2004, p 127.
242

of potential crisis and troubled spots. It is through this network that much of the development
of conflict indicators for the EU institutions was conducted. The conflict indicators, or “check list
of root causes of conflict” are widely distributed within the Commission, among the
geographical desks, as well as to the external services. The CPN was repealed in 2001.
The Commission’s delegations are in many ways the eyes and ears of the Commission’s early
warning mechanisms. 853 The delegations report back to the desk officers as well as to the SG/HR
with the overall objective of indicating to EU decision-making bodies which countries or regions
are at risk of conflicts, or the re-emergence thereof. This information, combined with the
expertise of desk officers is then consolidated into Country Strategy Papers (CSP) or its regional
counterpart (RSP). Since 2001, considerable effort has been made to routinely include conflict
prevention assessment in the CSP/RSPs. This reporting process also has the effect of enabling
the EU to ensure that its policies are targeted towards potential risks areas (Commission’s
programmes but also Member States’ bilateral programmes).
A report of the CSP’s of our target countries with regard to conflict prevention can be found at
the end of the report in Annex A.
With a few exceptions, the delegations are often small in size and many of the fonctionnaires are
technical or assistant specialists. 854 The scope of CSP’s goes well beyond this to include issues
concerning the legitimacy of the State, the operation of civil society, relation between identity
groups. The type of experience necessary to identify and understand what may be quite subtle
indicators has been compounded by the lack of a systematic professional and training structures
for RELEX. However, the delegations also employ local staff whose knowledge is of considerable
importance. 855
853 ibid
854 S Duke, n852 p 124.
855 ibid
243

Based on the CSP/RSPs, the next stage is to ascribe countries risk-assessment “score” and those
that appears higher are placed on a confidential “watch list”. The Commission role is
complemented by the Council’s activities. The Policy Planning and Early Warning Unit (Policy
Unit) 856 is a small unit that falls under the responsibility of the SG/HR and draws its personnel
from the General Secretariat, the Member States and the Commission. It is divided into several
task forces (regional, ESDP, administration and security, liaison with the Council etc). The tasks of
the Unit include timely assessment and early warning of events or situations which may have
significant repercussions for the Union’s CFSP, including potential crises. The Commission and
the Members States are committed to “assist the policy planning process by providing, to the
fullest extent possible, relevant information, including confidential information”. 857 The fact that
the Policy Unit reports to the SG/HR, along with the political aspects of the delegation’s
reporting, means that there is a need for constant exchange of information between the
Secretariat and Commission.
There are however two problems with the Policy Unit. 858 The first problem stem from the
considerable expectations created by the mandate and the small size of the unit. This results in a
“lack of capacity to undertake analysis on the basis of information received from a wide range of
conflict affected regions, tending rather to focus on areas of immediate strategic interest to the
EU. There is a real danger that it will be overloaded by the current focus on Afghanistan, Central
Asia and the Middle East at the expense of attention on regions such as Africa”. 859 The obvious
solution is therefore to increase the size of the unit. The second problem, by no means confined
856
Declaration n°6 attached to the Amsterdam Treaty, on the establishment of a Policy Planning and Early
Warning Unit.
857
ibid, para 5.
858
S Duke, n852, p 127.
859
‘Putting Conflict Prevention into Practice: Priorities for the Spanish and Danish EU Presidency’, Joint
report by Intermon Oxfam, International Alert and Saferworld, p24. Available at http://www.internationalalert.org/pdf/eupres2002.PDF
, in S. Duke Institutional and Financial Dimensions, in V. Kronenberg and J.
Wouters (Eds), The European Union and Conflict Prevention – Policy and Legal Aspects, TMC Asser Press,
The Hague, 2004, p 126.
244

to the Policy Unit, is tha conflict prevention relies heavily on open sources. The lack of
autonomous EU intelligence source for conflict prevention and crisis management is a potential
drawback and has led to demands for more formal intelligence sharing arrangements. Enhanced
links between the EU Military Staff (EUMS) and the Policy Unit might improve conflict prevention
generally, as aside from situation assessment and strategic planning, the EUMS’ role includes
early warning.
Since the definition of CP also include efforts to prevent the recurrence of violent conflicts, other
body institutions are relevant. In the case of the Western Balkans, the EU Monitoring Mission
(EUMM) can monitor what is happening on the ground, gather information and assist with
analysis. 860 The EUMM reports to the Council through the SG/HR and also coordinates closely
with other international organisations such as the OSCE.
Longer-term Aspects of Conflict Prevention
The primary responsibility for the longer terms aspect of conflict prevention lies within the
Commission since the main tools are economic in nature. Nevertheless the Council plays a
valuable role in the political sphere. The Commission has the right of initiative in the first pillar
and this right is shared with the Member States in CFSP. This puts the onus on consistency and
coordinated responses, which as Chris Patten has observed is not always the case 861 :
There is an unresolved tension between the intergovernmentalism and Community
powers. The welcome creation of the CFSP High Representative doubling as the Council
Secretary General has not helped to resolve this tension. Indeed, it has also given rise to
some new institutional complications. It may also have increased the tendency for CFSP
to usurp the functions which should be the responsibility of the Commission (e.g. , the
860 The EUMM originally started as the European Community Monitoring Mission (ECMM) and became the
EUMM as a result of a Joint Action (2000/811/CFSP)/
861 S Duke, n852, p 127.
245

EC Monitoring Mission to the Balkans, which was dreamt up by CFSP and then left as an
expensive baby on the Commission’s doorstep. 862
The Council’s role is primarily oriented towards crisis management, although there are
institutions with conflict prevention relevancy. Apart from the Policy Unit, and with regard to
longer-term conflict prevention, the Presidency or the General Affairs and External Relations
Council may adopt CFSP instruments that will communicate the EU position. In addition, the PSC
has among other things the mission to develop a consistent European approach to crisis
management and conflict prevention.
The Council and the PSC role are mainly framed in terms of response to an existing crisis
situation, but the ability to respond to a broad range of international events that fall within the
second pillar certainly opens the scope for declarations, common positions or even joint actions
that may have broad implications for the Commission in the conflict prevention context. It is
important to acknowledge that the role played by the CFSP in longer-term conflict prevention is
limited. 863 This is due to obvious reasons such as its limited budget, which is extremely modest
compared to billions of Euros that the Commission could use for conflict prevention related
activities. The Commission’s ability to assess and respond to brewing crisis scenarios and, most
importantly, its ability to harness the reporting and observation capacities of the Community’s
External Services makes its role paramount. Although new institutions have been created with a
specific conflict prevention mandate, the emphasis has been on the ability of the Commission to
adapt its existing structures and practices to conflict prevention roles. 864
The scope of longer-term conflict prevention is spread across a number of programmes (CARDS,
MEDA, PHARE; TACIS, Cotonou Agreement) and different DGs (RELEX, Development, ECHO,
862
Bulletin Quotidien Europe, Communication from Chris Patten to the European Commission aimed at
Engaging a Debate on the Eu’s External Relations, N° 2193, 10 June 2000, para5.
863
S Duke, n852, p 128.
864
See Communication of the Commission on Conflict Prevention, COM(2001) 211 final, 11 April 2001.
246

Enlargement). It has been submitted that the collaboration between these different elements
was not very harmonious due to a lack of integrated approach to conflict prevention. 865 A
platform of NGOs active in this area commented in 2005 that the ‘institutional disconnect
between the Commission and the Council means that the complimentary conflict prevention
and development programming is not sufficiently taken into consideration into the strategic
operational planning of crisis management’. 866 The restructuring of DG RELEX in 1998-2000
implied the creation of the Conflict Prevention and Crisis Management Unit which is the only
Commission’s unit dedicated to conflict prevention.
Conflict Prevention and the Member States
The main point to be stressed is the importance of sharing the information in order to maximize
effectiveness. 867 The Commission stated that it was clearly the Member States who need to
improve the exchange of information:
It remains the case that despite the injunction of the Goteborg Programme that there
should be a mutual exchange of CSPs and the Member States equivalent documents,
the flow of information has tended to be one way; few, if any, Member States have
volunteered to share their national strategies with each other or with the
Commission. 868
The exchange of information between the EU and Member States is of importance since it
underpins other forms of cooperation such as frameworks agreement on with Member States
for the deployment of civil personnel in crisis management operations.
865
S Duke, n852, p 129
866
‘Generating Civilian Capabilities: Moving Beyond Crisis Management to Peacebuilibg’, EPLO Policy
Paper, March 2005.
867
S Duke, n852,p 133.
868
‘One Year on: the Commission’s Conflict Prevention Policy’, March 2002, available at
http://ec.europa.eu/external_relations/cfsp/cpcm/cp/rep.htm.
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Comments
The development of an EU role in the field of crisis management has presented the Council with
major new challenges, and forced a breakthrough in the long-awaited extension of permanent
structures in Brussels. 869 In this respect, the PSC has managed to consolidate its position at the
central place where different pieces of the ESDP puzzle come together.
One of the comparative advantages of the European Union is that it can address international
crisis with a wide array of policy instruments. The demands being made on EU crisis
management are therefore bound to lead to further need for institutional adaptation and
innovation. The brief presentation above should be considered “as no more than snapshots and
more change is inevitable.” 870 CFSP has nonetheless come a long way recently. It has indeed
been demonstrated that the Commission and the Council have created specific bodies where
interpillar consultations take place on a regular basis. Moreover, Community legislation
nowadays makes clear that Community Assistance under the EIDHR or the Instrument for
Stability must be consistent with the respective ESDP efforts. 871 However, interpillar and civil-
military coordination remain crucial and is seen by some authors as the main challenge of the
ongoing EULEX KOSOVO operation currently taking place at the time of writing. 872
Moreover, the numbers of staff involved in CFSP and ESDP remained surprisingly low and the
assumption of more demanding and complex missions has put a lot of strain on the officials
concerned who act on a rather ad hoc basis.
As far as ESDP operations are concerned, the scarcity of the ESDP budget calls for a careful
assessment of their necessity and their length in time. EU crisis management operations are a
869
S Vanhooacker, n752, p155.
870
S Duke, n710, p92.
871
F Hoffmeister, n757, p179.
872 ibid
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fairly new phenomenon, and were so far never intended to take place in an armed conflict
context. However, even if not expressly mentioned in the mandate, violence might occur on the
ground, and because of the unstable situation in most if not all countries where ESDP operations
take place, the borderline with armed conflicts can become thinner or crossed.
Therefore, the inclusion of references to international humanitarian law/rules in all EU operations
mandates is recommended in order to give legal strength/legitimacy to its application when
necessary.
Several authors also pointed out the lack of leadership at all levels 873 : the political drive to
crystallize the idea of a security policy, the institutional responsibility within EU structures and
the practical administration of the EU policy. As Blockmans and Wessel pointed out, the lack of
leadership at these levels makes it difficult to decide whether a crisis exists, to then determine
the scale of the crisis, and to achieve consensus on a response. 874 This failure was clearly
illustrated by the arguments over a military intervention in Iraq.
As far as conflict prevention is concerned, there is a need to improve early warning analysis by
ensuring that greater information ‘from the field’ is used to support Member States intelligence.
In this respect Country Strategy Papers and the integration of the Checklist for Root-Causes of
Conflict elaborated by the Commission should play a more important role than they do now.
The study of the latest CSPs of our target countries (Haiti, Cambodia, Sierra Leone and BiH
(there is no CSP for Kosovo) revealed that the Community has indeed taken on its mandate to
consider the Checklist for Root-Causes of Conflict in its evaluation of countries that receive
assistance from the Community; this evaluation for the most part is quite comprehensive.
However, the method by which these countries are assessed against the Checklist is by no
873 S Blockmans and R A Wessel, The European Union and Crisis Management: Will the Lisbon Treaty Make
the EU More Effective?, Paper presented at the International Conference ‘The European Union and Global
Emergencies’, Durham European Law Institute, 8-9 May 2009 – work in progress.
874 ibid
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means uniform, although this may be due to the individual nature of these countries and their
specific situations. Many aspects of the Checklist are left out from consideration by the CSPs or
RSPs and those areas which are included are superficially explored. Because the information is
not uniform, it is scattered in various places throughout the Strategy Papers, so that one cannot
clearly conceive which considerations are being discussed.
It may be valuable either to generate separate reports specifically relating to the Checklist which
can be annexed to the CSPs and RSPs, or to restructure the Strategy Papers in a way that clearly
makes use of the Checklist in a systematic, uniform manner. If the point is to consider conflict
risk factors in their own right so that the attention of the Community and Member States can be
drawn to those countries which are in most need of assistance, it seems sensible to evaluate
those factors separately from the other elements of the Strategy Papers in order to effectively
attract that attention.
In a wider picture, it appears that effective crisis management is remains closely tied to the more
general efforts of the Community to stabilise crisis or prone-crisis countries and region. In this
regard, there remains a worrying amount of bifurcated efforts, most notably in conflict
prevention and the civilian aspects of crisis management. 875 It remains clear that truly effective
external relations and crisis management will call upon the Union as a whole to weave together
the various components of foreign policy, crisis management, conflict prevention, post-conflict
reconstruction and stabilisation into a more coherent whole. 876 In this sense, we support the
French White Paper on Defence and National Security of June 2008 877 when it advocated the
drafting of a European White Paper on Defence and Security. 878 Such a document, if taking into
account the polymorphism of the EU external action in all its aspects (foreign policy, crisis
management, conflict prevention, post-conflict reconstruction, and stabilisation) in a transversal
875
S Duke, n710, p105.
876
ibid
877
Available at http://www.ambafrance-ca.org/IMG/pdf/Livre_blanc_Press_kit_english_version.pdf
878 ibid, p6.
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approach would be invaluable. Not only would it provide a much-needed clarity of the EU
action, but such an extensive document would also function as a set of guidelines to be followed
and referenced by all the relevant actors.
We also support the French White Paper in its recommendation to take the necessary measure
so that military and civil missions carried out by the EU are under a single strategic Directorate
in Brussels. 879 Here again the willingness of Member States to imbue the institutions with the
necessary will and resources is crucial.
879 ibid, p7.
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VIII. Annex A
Report on the Implementation of the Checklist for Root-Causes of Conflict with
INTRODUCTION
regard to Country Strategy Papers 880
The check-list is a tool used by the EU for its agenda setting. Its purpose is to guide the
attention of the Community to areas that are in need of attention/where the Community might
wish to intervene with instruments of its own and should be considered a first step in its
programming activities and a raising of awareness of the need for cooperation.
The Commission Communication on Conflict Prevention names country and regional strategy
papers as key tools for the integration of conflict prevention in development cooperation
programmes. These papers are drawn up for all countries that receive assistance from the
Community.
The Papers assess the potential conflict situation using appropriate indicators, i.e. the checklist
for root-causes of conflict, evaluating the economic, environmental, social, and political situation
in a given country, as well as gender issues.
Where a country has been listed as a country with conflict potential, conflict prevention will be
made part of the overall Community programme with regard to that country.
Furthermore, in order to enhance the effectiveness of conflict prevention, Strategy Papers and
similar documents from Member States are to be regularly exchanged.
880 The Country Strategy Papers referenced in this report are current up to 2008.
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BOSNIA AND HERZEGOVINA – Country Strategy Paper 2002-2006
1. Legitimacy of the State, and 2. Rule of law
The Dayton Agreement of 1995 created two Entities: Federation of Bosnia and Herzegovina (BiH)
and Republika Srpska (RS); however, due to the unwillingness of the RS to allow BiH to develop
properly, it has had a more difficult time restoring itself to its pre-war state. Six state ministries
were also established but the state has been constrained in its ability to assert its authority and
to develop and prosecute a consistent policy agenda. Furthermore, it has no countrywide
system of administration, no police force or army and a judicial system that is just getting off the
ground. The war between 1992 and 1995 led to the establishment of parallel structures that
compete with the legitimate government in some parts of BiH.
The election of November 2000 resulted in the elimination of nationalist parties from
government and the installation of governments willing to work with the international
community.
It is the view held by most public officials and the general public that corruption is widespread in
BiH. This is due to a variety of factors including the existence of parallel governmental structures,
ethnic divisions, party control of large parts of the economy, a lack of transparency with regard
to key areas such as political party financing and public expenditure, and a weak police and
judicial system. Corruption takes the form of bribes, for example, required from enterprises by
administrations when attempting to comply with formalities or obtain authorisations. It also
touches upon private citizens, for example where they may be required to pay additional sums
for various services. There are secret links between companies and political parties involving
financial support in exchange for protection in the market, as well as corruption in the award of
public contracts.
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The judiciary is new and consequently weak. Although the Constitutional Court is operative at
State level, a State Court of BiH exists but is not yet operational, and there are no other courts at
state level. Courts are more developed at a local level, but they are not fully impartial nor
professional and are currently the subject of the Independent Judicial Commission.
Public administration is weak on all levels, as well as under-resourced. There is no state level
penal code, criminal code, commercial code police force, or prison system, nor are there State-
wide enforcement mechanisms. Cooperation between police forces is limited, as is there ability
to take on organized crime.
3. Respect for fundamental rights
The Constitution of BiH guarantees human rights, the rule of law and fundamental freedoms,
and democracy including free and democratic elections. The General Framework Agreement for
Peace has established a number of institutions to protect the rights guaranteed in the
Constitution, but while they operate satisfactorily, there is no real enforcement of their rulings.
The Constitutional Court in a decision of July 2000, declared all nationalities as constituent
peoples with full rights throughout the country; however, this decision has yet to be
implemented fully because there is still discrimination against minorities with regard to access to
public sevices.
4. Civil society and media
Considering the war-torn nature of BiH and the huge displaced populations, the Country
Strategy Paper (CSP) did not discuss this particular check point. It noted that 1.2 million persons
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were displaced and that 45-55% of the population live in poverty with extremely limited access
to social welfare services.
The CSP discusses its goal in terms of media reform which is to “provide the population of BiH
with access to professional and impartial electronic media” but does not address the current
status in this regard.
N/A
5. Relations between communities and dispute-solving mechanisms
6. Sound economic management
The economy in BiH since 1996 has gone from a post-war, socially planned economy to a
market economy, with a high GDP owing mostly to outside assistance which was set to drop
according to this Strategy Paper in the “medium term”. However, BiH still remains the second
poorest country of South East Europe.
Macroeconomic stability has been maintained through IMF-support programmes and BiH has
strictly adhered to the rules of the currency board arrangement in order to moderate inflation
encourage the universal acceptance of the local currency, the Konvertible Marka. However, weak
discipline and poor expenditure control (general government expenditure in 2000 was 56% of
the GDP) are major sources of macroeconomic risk. The Commission notes that a reduction in
expenditure and a downsizing of the public sector are necessary for fiscal sustainability.
Foreign direct investment is unsatisfactory and the need to attract such investment is growing
due to the phasing out of assistance from foreign donors. BiH is ranked among the lowest in
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Eastern European countries in terns of foreign investment climate due to its complex rules and
issues with corruption.
Externally, BiH exports recovered from a decline in 1999, although the import market continues
to do so resulting from reductions in donation for reconstruction and consistency with the
overall trend of a decrease in consumer imports. Foreign debt inherited from the former
Socialist Federal Republic of Yugoslavia is high at 60% of the GDP in 2000.
Environmental strategies and policies are virtually non-existent due to a lack of institutional
capacity in the local ministries responsible for the environment. Even so, a BiH-wide entity is
necessary in order to promote coordination and to represent it internationally. Particular
attention needs to be placed on water resource management and waste disposal.
7. Social and regional inequalities
There are still issues concerning the displacement of populations and the creation of ethnically
cleansed regions directly resulting from the war between 1992 and 1995. The effects of this
“cleansing” are being reversed through programmes which return the refugees and properties
to their origin. The Commission commented that resolving this problem is essential in order to
achieve stability in the region due to the fact that displaced populations are often unwilling to
make the political compromises necessary to achieve national stability.
Unemployment is highest amongst displaced persons and this may worsen given that new job
creation is discouraged by labour market legislation and high taxes on labour. As of the Country
Strategy Paper, there were 415,000 pensioners and disabled persons receiving pension set
below the poverty line (50% of the average net wage).
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Despite the existence of the Centres for Social Work, social services are extremely limited as
most of its resources go directly to administration and personnel costs leaving about € 25 per
person per year spent on social assistance programmes. Furthermore, the provision of services is
contributing to an increasing rural/urban divide and there has been little reform by way of
health policy and health financing mechanisms.
Education policy also varies greatly between the Entities, Cantons and Municipalities despite the
reconstruction and refurbishment of 75% of all schools and the increase in enrolment rates.
8. Geopolitical situation
Criminal organizations continue to exploit BiH’s borders creating routes for illegal emigration,
smuggling, and the trafficking of women and children. BiH is considered a key hub for illegal
immigrants coming into the EU and the newly created State Border Service cannot be fully
deployed due to lack of funding. BiH needs to strengthen its borders and develop a coherent
immigration and asylum policy, as well as ensure the full deployment of the State Border
Service.
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CAMBODIA – Country Strategy Paper 2007-2013
1. Legitimacy of the State
The CSP notes that law enforcement in Cambodia is weak and results in significant impunity with
regard to crime. This is due in most part to widespread corruption which increasingly takes the
form of criminal prosecutions for alleged defamation or incitement used to silence political
opposition.
2. Rule of law
As far as human rights, the CSP comments that Cambodia is still in a post-conflict situation with
widespread public and domestic violence mainly against women and children. This is despite the
existence of several local and international human rights organizations and civil society groups.
The illegal trafficking of women and girls is a serious problem with about 40,000 woman
estimated being trafficked in Thailand according to the Ministry of Women and Veteran Affairs
Cambodia. Although initiatives in this field have been implemented, success in this field depends
on the continued reduction of poverty, especially in the rural areas and also on a strengthening
of the judicial system.
3. Respect for fundamental rights
There is discrimination against indigenous ethnic minorities which account for less than 1% of
the total population and who live in the remote border areas of the country. They have a
marginal political status and are socially excluded; neither are their concerns in the development
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process recognized. This is largely because they do not have the means, organizational
structures, and literacy to participate.
Democratic reconstruction was launched in 1991 as part of the Paris Peace Agreement and in
2004 a coalition government was approved and took up the most seats in the National
Assembly. In 2002 a law was adopted to establish locally-elected Commune Councils in the hope
that the identification of local needs would help to increase sustainable poverty reduction.
However, the EU Election Observer mission commented in 2003 that although the election
process was much better organized and gave allowed voters to freely express their opinions,
Cambodia is not yet a fully-functioning democracy.
4. Civil society and media
This is not addressed in the CSP
5. Relations between communities and dispute-solving mechanisms
Cambodia is experiencing uncontrollable problems with land grabbing and has received a large
influx of asylum seekers from ethnic minorities located in Vietnam.
As discussed above, there has recently been a law adopted to allow for the election of local
representation which will hopefully lead to the establishment of effective mechanisms for
arbitration of conflicts.
6. Sound economic management
Cambodia is one of the poorest regions in Southeast Asia with a GDP per capita of USD385 in
2005. Poverty is worse in rural areas and most of the poor in those areas depend on agricultural
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production which remains an important source of income for the rural population.
Macroeconomic growth and fiscal stability have improved since the beginning of 1999 with the
help of the IMF and has resulted in a banking system that is adequately capitalized and highly
liquid.
The economic growth rate has averaged at about 9% over the last seven years and is mostly
based on the garment, tourism and construction sectors.
However, fiscal management is poor due to weakened revenue collection from smuggling,
exemptions from customs duties and just a generally informal economy. This has consequently
resulted in large budget deficits.
Foreign investment has declined over the last 10 years due to political instability, a dysfunctional
legal system and corruption, although in 2005 foreign direct investment increased to 169 million
USD.
There is a major opportunity for Cambodia to grow in the recent discovery of off-shore oil
reserves.
Cambodia has misused and misappropriated much of its natural resources through land
grabbing, illegal logging and the overexploitation of fish stocks, despite the existence of
extensive renewable resources (i.e. forests and fisheries). There is a fear that Cambodia’s misuse
of these resources will degrade the environment and increase rural poverty.
7. Social and regional inequalities
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Cambodia has a very poor rating on the Human Development Index at 130 out of 175 countries
with an average income per day of $1 and a rate of 40% of the rural population living below the
poverty line of 0.5$ a day.
Adult illiteracy is a problem in Cambodia mainly among females and there are high drop out
rates in education, inequities in access for girls, and poor standards of education in rural areas.
For these reasons, the education sector has been a major focus area for reform in Cambodia and
a sector-wide approach is being implemented in partnership with other organisations in order
to design programmes and allocate resources to improve access, quality and financing of
education. There has already been significant progress demonstrated by an increase in
enrolment in 2003. Attention must be put on the strengthening of public financial management
in order to improve financial disbursement for education.
Quality of health is quite low in Cambodia, given the outbreak in avian influenza in 2004 and the
presence of a huge AIDS epidemic. Besides these two grave problems, preventable and
controllable diseases run rampant among the Cambodian population, especially among the rural
poor who have no access to safe water or sanitation. The lack of access is specifically a problem
for women and children. These problems consequently burden the economic system, as
resources are diverted to aid these situations at a high cost. To tackle these issues the
government created in 2002 its first health reform plan to improve the healthcare of people,
especially mothers and children and to contribute to poverty alleviation and socio-economic
development. The reform strategy is based on output and outcomes and focuses on priorities
and strategies designed to reach envisaged outcomes, such as reduced infant mortality,
morbidity, improved nutritional status among children and women, reduced household
expenditure on health, and a more efficient healthcare system.
8. Geopolitical situation
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Cambodia has recently been on the receiving end of large numbers of refugees from
Vietnamese ethnic minority Montagnards. Cambodia, the Vietnamese Government, and the UN
High Commissioner for Refugees reached an agreement in 2005 regarding the treatment of
these people.
There has also recently been an increase in illicit drugs trafficking through Cambodia and cross-
border smuggling is on the rise as well.
However, the situation regarding small arms and light weapons has improved through EU
support from the CFSP project EU Assistance on Curbing Small Arms and Light Weapons in
Cambodia.
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HAITI – Regional Strategy Paper 2003-2007 (Caribbean Forum of ACP States)
N.B. Haiti is considered along with other countries in the Caribbean region and so the
commentary in the RSP is generalized to cover the area. Where Haiti is specifically mentioned, it
will be noted herein.
N.B.2. Haiti, being a member of Caricom 881 , is a member of Cariforum which purpose is among
other things, to manage and coordinate policy dialogue with the EU and to promote regional
integration and cooperation. Largely, any measures taken to reform the difficulties in the region
have been led by Cariforum, including the creation of the Caricom Single Market and Economy
(CSME) which will operate similarly to the market within the EU. Furthermore, The Association of
Caribbean States has been created to enhance mutual cooperation in areas relating to health,
tourism, transport, agriculture, sustainable use of natural resources and the
prevention/mitigation of natural disasters.
1. Legitimacy of the State
Haiti is the only country of the Caribbean ACP countries that does not have a multi-party
democracy and political stability. This can be traced to the above average levels of corruption in
the country. It seems that the quality of government and administration at this time is quite
poor and the nation is vulnerable to transnational crime.
881 Caricom (the Caribbean Community) was established in 1973 with the signing of the Treaty
establishing the Caribbean Community, Chaguaramas, 4th July 1973. The objectives of the Community are
to improve standards of living and work; the full employment of labour and other factors of production;
accelerated, coordinated and sustained economic development and convergence; expansion of trade and
economic relations with third States; enhanced levels of international competitiveness; organisation for
increased production and productivity; achievement of a greater measure of economic leverage and
effectiveness of Member States in dealing with third States, groups of States and entities of any
description and the enhanced co-ordination of Member States’ foreign and foreign economic policies and
enhanced functional co-operation.
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2. Rule of law
The justice system is in need of reform and public and private sector personnel are in critical
need of training so that they can engage in regional and international cooperation and reduce
transnational crime. It must be recalled here that a democratic system of government has yet to
be put in place in Haiti and so the rule of law has not been established therein. Transnational
crime has actually increased over the last 10 years, especially drug trafficking.
3. Respect for fundamental rights
The RSP comments that violations of human rights are not widespread in the region, but notes
that there are issues with regard to the inhuman quality of detention which is partly due to
prison overcrowding.
4. Civil society and media
The RSP notes that press in most countries is relatively free, but does not make any
specifications with regard to Haiti.
5. Relations between communities and dispute-solving mechanisms
This is not specifically addressed in the RSP, although it does discuss the establishment of an
ACP court called the Caribbean Court of Justice which would have final jurisdiction with respect
to the interpretation and application of the Protocols of the Treaty establishing the Caribbean
Community, as well as the court of last instance in civil and criminal matters.
6. Sound economic management
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Haiti is one of the poorest in terms of economic performance, perhaps due to its small size, and
has experienced negative growth rates. The GDP in 1999 was 4.3 billion USD and the earnings
per capita were 1,464 USD. The RSP comments that the Caribbean’s close proximity to North
America is beneficial to its tourism, manufacturing and financial services, but its agricultural and
manufacturing sects need to improve their competitiveness and embrace diversification. There
was a large gap between 1991 and 2000 in the balance between exports (14%) and imports
(39%).
Haiti is not currently a full member of the CSME, but it has expressed a commitment to it and its
membership will be negotiated in the future.
7. Social and regional inequalities
Haiti is the only country in Cariforum to fall into the category of low human development. Life
expectancy is 54 years; the adult literacy rate is 48%. High levels of poverty, unemployment, and
inequality in the distribution of income are still prevalent issues.
8. Geopolitical situation
The existence of transnational crime, e.g. illicit arms trade, trafficking, and computer crime have
created negative implications for national security and there has been a major flow of people
from the country chiefly into the United States and Canada. Consequently, the deportation of
Caribbean criminals back to the Caribbean has majorly threatened the region due to the arrival
with them of sophisticated instruments of crime. Furthermore, some of the ACP countries have
been classified as tax havens due to their inadequate regulation. An attempt at resolving this
issue has been made through the establishment of a Caribbean Association of Regulators of
International Business.
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266

SIERRA LEONE – Country Strategy Paper 2008-2013
1. Legitimacy of the State
The social, political and economic situation of Sierra Leone is the direct result of the civil war
which took place between 1991 and 2002. It collapsed the economy and the government and
displaced an estimated 2 million people. The civil war was rooted in the centralisation of the
Sierra Leonean government and the complete absence of accountability throughout its civil
service, not to mention widespread corruption.
Democracy and effective governance have yet to be achieved, nor is there any oversight
mechanism for the governance. The government that does exist is rife with corruption and
presents serious obstacles to the implementation of laws and the protection of human rights.
Because of the weak state of the government, it is unable to deliver even the basic necessities to
its citizens.
With that in mind, the government of Sierra Leone is committed to enhance the power of local
councils which were abolished in the 1980s and to decentralize power in order to broaden
public participation among the communities. Recently, presidential elections took place in
August of 2007 and were considered a major milestone in the establishment of democracy in
Sierra Leone due to an absence of violence, good administration and a result that reflected the
majority of the constituents.
Some other positive results have been achieved. For example, the police and armed forces have
been rebuilt since the end of the conflict in 2002. The government has set up a national security
office (Office of National Security) to coordinate the activities of various institutions in the
government and to enhance and encourage development. Civil service reforms are being made
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as well, for example, service pay and training policies have been drafted and a public sector
reform strategy is being prepared.
2. Rule of law
As discussed above, the civil war incapacitated the economy and government of Sierra Leone.
This includes the functioning of the judiciary which has been significantly weakened through
corruption, among other factors.
3. Respect for fundamental rights
Also as discussed above, there have been presidential and parliamentary elections in 2002 and
local elections in 2004 which have been considered by international observers to be respectful
of the fundamental right to vote in that they were free of violence, reasonably administered and
resulted in a representation of the will of the majority.
Inequality is still a problem and is growing, although it may be helped by the new efforts at
decentralisation of power. Women, girls, and youths of both sexes are routinely discriminated
against, based on tradition and even in law, and gender-based violence is common.
There is discrimination in relation to access to services, but that will be discussed in relation to
point 7 below.
4. Civil society and media
The CSP comments that civil society has virtually no mechanism through which to hold those in
power to account.
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In terms of the media, all of the nearly 50 newspapers in Sierra Leone are based from Freetown
and has little impact beyond the city’s borders due to the low rate of illiteracy and bad transport.
Radio is considered to be the major and best source of information.
5. Relations between communities and dispute-solving mechanisms
There is a divide between the peoples of Freetown and those located elsewhere, largely because
of allegiances being based on social networks which are tied to certain places. However, this is
not much of an issue in terms of politics because people’s ethnicities are extremely mixed.
As the judiciary is weak still from the civil war, there does not seem to be any reliable dispute
solving mechanisms in place. However, as a result of the Lomé Peace Accord of 1999, a Truth
and Reconciliation Commission has been set up to help Sierra Leoneans come to terms with the
causes of the civil war and avoid a relapse. Furthermore, the UN Special Court for Sierra Leone
is engaged in legal proceedings against suspected war criminals. However, the effects of these
bodies have yet to be seen.
6. Sound economic management
The CSP notes that the economy has recovered quite well since the end of the conflict with a
GDP consistently over 7%. However, private investment, savings, and agricultural productivity
can be increased. It is important that agricultural productivity increase as currently the main
source of export is in the diamond industry, and it is likely that agriculture will form a firm basis
for sustained economic growth and job creation.
Despite economic growth, inflation remains a problem for Sierra Leone. In 2005, inflation
reached 14%.
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Domestic tax has remained consistently around 12% of the GDP, with almost 60% of domestic
tax income originating from customs and excise. The National Revenue Authority was
established in 2003 and will hopefully increase tax revenue.
Still, Sierra Leone remains largely dependent upon external financing due to its government
expenditure of 22% of the GDP (in 2005).
There has been recently a change in the legal and regulatory framework for financial
management, including the creation of the Public Budgeting and Accountability Act which gives
all ministries, departments and agencies the competence to establish internal audit units.
Renewable natural resources (e.g. agriculture, fisheries and forestry) are abundant in the country
and account for over 50% of the GPD and support most of the population. However, Sierra
Leone has a problem with environmental degradation, resource depletion and low agricultural
productivity that can threaten the sustainability of the country’s economic growth. Illegal fishing
itself results in a revenue loss of almost 30 million USD, and deforestation has resulted in the
loss of 95% of the original forest cover. In terms of resolution of these issues, Sierra Leone is
signatory to numerous international conventions, but is poor in terms of implementation. The
National Commission on Environment and Forestry was set up in 2005 to improve management,
but the country’s ability to implement legislation is hampered a lack of resources and capacity.
7. Social and regional inequalities
The meagre status of the civil services in Sierra Leone has resulted in an inability to adequately
deliver services to the majority of its people.
In terms of income and employment, inequality is relatively high and the availability of paid
employment is quite low. When jobs are paid, women earn on average half of what men earn.
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Lack of job availability has resulted in large numbers of young men working in the artisan
industry which pays extremely low and most often, remuneration is given in the form of food.
In addition to gender-based discrimination and discrimination against youths, those suffering
from disabilities, including the war-wounded and amputees, are also the victims of
discrimination.
The healthcare system of Sierra Leone is poor due to lack of staff and inadequate financing,
infrastructure and limited access both to facilities and drugs physically and financially. Malaria is
the main cause of illness, but HIV is also a huge concern, especially because there is evidence
that 47% of HIV-positive cases are new infections.
The education sector is also quite poor with a high adult illiteracy rate and low enrolment.
However, the Ministry of Education, Science and Technology was preparing a 10-year plan due
for completion in May 2007 in order to improve the quality of education and focus on the
situation for girls in education.
In response to these challenges, the Government of Sierra Leone has increased the resources
put toward education and health, however, this is still a concern regarding the distribution of
physical goods. The National Health Policy of 2002 was created to focus on primary healthcare
and to provide essential services, thereby improving access.
8. Geopolitical situation
The displacement of 2 million people due to the civil war resulted in an estimated 200,000
people each to the United Kingdom and the United States. Child trafficking has increased since
the end of the war, internally and internationally.
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There are weak transport links between Sierra Leone and its neighbouring countries which is an
obstacle to the free movement of its people and its goods.
Instability has historically spread beyond its borders and currently there are issues with Guinea
and Côte d’Ivoire in terms of social and economic instability.
Conflict prevention will play a large role in this region and must take into account its fragile
nature.
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CONCLUSIONS/RECOMMENDATIONS
It is clear that the Community has taken on its mandate to consider the Checklist for Root-
Causes of Conflict in its evaluation of countries that receive assistance from the Community.
Based on the examination of the four target countries, this evaluation for the most part is quite
comprehensive. However, the method by which these countries are assessed against the
Checklist is by no means uniform, although this may be due to the individual nature of these
countries and their specific situations. Many aspects of the Checklist are left out from
consideration by the CSPs or RSPs and those areas which are included are superficially explored.
Because the information is not uniform, it is scattered in various places throughout the Strategy
Papers, so that one cannot clearly conceive which considerations are being discussed.
It may be valuable either to generate separate reports specifically relating to the Checklist which
can be annexed to the CSPs and RSPs, or to restructure the Strategy Papers in a way that clearly
makes use of the Checklist in a systematic, uniform manner. If the point is to consider conflict
risk factors in their own right so that the attention of the Community and Member States can be
drawn to those countries which are in most need of assistance, it seems sensible to evaluate
those factors separately from the other elements of the Strategy Papers in order to effectively
attract that attention.
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SUB-ANNEX - Commission Checklist for Root-Causes of Conflict 882
1. Legitimacy of the State
Are there proper checks and balances in the political system?
Respect of the Constitution, ability of the Parliament and the judiciary to check on the executive,
devolution of powers and ability of regional authorities (if any) to counterbalance central
power…
How inclusive is the political/administrative power?
Ethnic and religious representativeness of the government, equality of access to political activity,
participative decision-making, fair recruitment in the administration and other public
institutions…
What is the overall level of respect for national authorities?
Historical resentments against State authority, existence of independentist movements,
parties advocating for extreme solutions (revolutionary or reactionary) to perceived
shortcomings, perceived ability of the State to answer people’s needs
Is corruption widespread?
Overall level of corruption, existence of anti-corruption programmes, widespread bribery in
bureaucracies, collusion between private sector and civil servants
2. Rule of law
How strong is the judicial system?
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Independence and effectiveness of the judiciary, equality of all citizens before the law,
effective possibility to undertake legal action against state decisions, enforcement of legal
decisions
Does unlawful state violence exist?
Participation of security forces in illegal activities (road blocks, extortion, others), effective
prosecution of human rights abuses by security forces, existence of a minimal human rights
framework for their operation, prison conditions
Does civilian power control security forces?
Influence of security forces over political decision-making, role of the Parliament in
debating/checking their use, existence of open debate and media/academic scrutiny on the
security sector
Does organised crime undermine the country’s stability?
Control of a significant part of the country/economy by criminal networks (drugs, natural
resources, human trafficking), existence of private armies or armed para-military groups acting
with impunity, proper re-integration of former combatants into social life
3. Respect for fundamental rights
Are civil and political freedoms respected?
Respect of right to vote/eligibility, protection of civil liberties including freedom of speech & of
assembly, free and fair elections respecting the rights of the opposition
Are religious and cultural rights respected?
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Punition by law of religious, ethnic or cultural discrimination, recognition of minority languages
e.g. in education, definition of the state with no reference to a dominant religious/cultural
identity
Are other basic human rights respected?
Prosecution of human rights violations (torture, illegal detention), gender equality, freedom of
private practices (dress codes, private life etc.), adherence to and implementation of
commitments under international human rights treaties and conventions, effective operation of
human rights monitoring by NGOs and/or international organizations
4. Civil society and media
Can civil society operate freely and efficiently?
Protection of NGOs and right of association by the state, liveliness of civil society, access to staff,
training, resources and others, ability to influence policy processes and solve tensions between
communities
How independent and professional are the media?
Censorship by government, independence of the media from partisan agendas and political or
private interests, ability to reflect the views of all social groups, access of journalists to
professional training
5. Relations between communities and dispute-solving mechanisms
How good are relations between identity groups?
Ability of major identity groups to mix together, frequency of outbursts of racial/religious
violence, perpetuation of negative stereotypes or mutual suspicions by collective memory and
culture, existence and effectiveness of reconciliation mechanisms (e.g. justice commissions)
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Does the state arbitrate over tensions and disputes between communities?
Existence and effectiveness of mechanisms arbitrating between conflicting parties (wisemen,
elders, ombudsmen), political manipulation of ethnic/identity differences, existence of regional
fora for conflict prevention/resolution
Are there uncontrolled flows of migrants/refugees?
Social friction between migrant and host communities (e.g. adverse pressure on food, water
etc.), respect for basic rights of migrants/refugees, impact of migration flows on ethnic/identity
balance of host regions
6. Sound economic management
How robust is the economy?
Income dependency on a limited number of sectors (e.g. one single agricultural product or
industry or remittance), capacity to react to natural disasters or international conditions (f.i.
massive swings in commodity prices)
Is policy framework conducive to macro-economic stability?
Stability of main macro-economic fundamentals (inflation, public deficit, current accounts),
ability to attract investment (both domestic and FDI), implementation of policies negotiated with
IFIs
How sustainable is the state’s environmental policy?
Fairness of management of natural resources (e.g. water), anticipation of possible internal or
external conflicts over natural resources, risk of serious environmental degradation (f.i.
desertification) forcing people into exile or threatening traditional ways of life
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7. Social and regional inequalities
How are social welfare policies addressed?
Overall level of literacy, health, sanitation, development of safety nets & income policies (or, by
default, existence of alternative social mechanisms ensuring local or familiy solidarity), correct
anticipation of massive demographic changes by public policies (especially urbanisation and
youth unemployment)
How are social inequalities tackled?
Trend for poverty and marginalisation (especially in absolute terms), vulnerability of least-
favoured segments of society, fairness of access to education, health care, jobs, economic
opportunities (including women and minorities), existence of public policies addressing
inequalities among communities through land reform, quota systems, social programmes or
others
How are regional disparities tackled?
Urban/rural gaps, existence of regions lagging behind in terms of economic development or
particularly affected by lack of vital resources, redistributive policies between regions
8. Geopolitical situation
How stable is the region’s geopolitical situation?
Relations with the country’s neighbours, pending border issues, dependency of the country on
unstable neighbours for vital assets (e.g. access to sea or water), effectiveness of regional
conflict-resolution mechanisms
Is the state affected by external threats?
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Destabilising policies of outside forces, existence of pro-active ethnic communities/diaspora
abroad, ability to control arms trafficking
Is the state affecting regional stability?
Support to militias or rebel groups operating on neighbouring territories, protection of war
criminals or rebel groups from neighbouring states, exploitation of the country’s natural
resources for foreign policy purposes, presence of illicit international activities on the country’s
territory
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IX. List of Abbreviations
ACP African, Caribbean and Pacific
AFET Committee on Foreign Affairs, Human Rights, Common Security and
Defence Policy
AU African Union
BiH Bosnia and Herzegovina
BTC Baku-Tbilisi-Ceyhan
CAHDI Committee of Legal Advisors on Public International Law
CARDS Programme of Community assistance for reconstruction, development
and stabilisation
CCM Civilian Crisis Management
CEDAW Committee on the Elimination of Discrimination against Women
CERD Committee on the Elimination of Racial Discrimination
CFI Court of First Instance
CFSP Common Foreign and Security Policy
CHG Civilian Headline Goal
CIMIN High Level Interdepartmental Committee Meeting
CIVCOM Committee for Civilian Aspects of Crisis Management
Civ-Mil Cell Civilian-Military Cell
CMC Crisis Management Concept
CoC Committee of Contributors
CODEV European Union Development Committee
COHOM Council Human Rights Working Party
COJUR EU Working Group on International Law
CONOPS Concept of Operations
COREPER Permanent Representatives Committee
CPCC Civil Planning Conduct Capability
CPN Conflict Prevention Network
CRCT Crisis Response Co-ordination Team
CRT Civilian Response Team
CSP Country Strategy Paper
CTEU Consolidated Treaty on European Union (in Lisbon Treaty)
DDR Demobilisation, disarmament and reintegration
DG Directorate General
DRC Democratic Republic of Congo
DPRK Democratic People’s Republic of Korea
EAR European Aid Reserve
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EC European Communities
ECHO European Commission Humanitarian Aid Department
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECJ European Court of Justice
EDA European Defence Agency
EDF European Development Fund
EGF European Gendarmerie Force
EIDHR European Instrument for Democracy and Human Rights
EOM Election Observation Mission
EP European Parliament
EPC European Political Co-operation
ESDI European Security and Defence Identity
ESDP European Security and Defence Policy
ESS European Security Strategy
EU European Union
EUFOR European Union Military Force
EUMC European Union Military Committee
EUMM European Union Monitoring Mission
EUMS European Union Military Staff
EUPM European Union Police Mission
EUSC European Union Satellite Centre
FAFA Financial and Administrative Framework Agreement
FCA Forgotten Crises Assessment
FPA Framework Partnership Agreement
FYROM Former Yugoslavian Republic of Macedonia
GAERC General Affairs and External Relations Council
GATT General Agreement on Trade and Tariffs
GHD Good Humanitarian Donorship
GNA Global Needs Assessment
GSB Generic Standards of Behaviour
HAC Humanitarian Aid Committee
HR Human rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICISS International Commission on Intervention and State Sovereignty
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICRT International Rehabilitation Council for Torture Victims
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IEMF Interim Emergency Multinational Force
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IHL International humanitarian law
IHRL International Human Rights Law
ILC International Law Commission
IPU Integrated Police Unit
IPTF International Police Task Force
JHA Justice and Home Affairs
LRRD Linking Relief, Rehabilitation and Development
MEDA Mesures d'Accompagnement Financières et Techniques
MEP Member of the European Parliament
MIC Monitoring and Information Centre
MONUC United Nations Organization Mission in the Democratic Republic of the
Congo
NATO North Atlantic Treaty Organization
NGOs Non-governmental organizations
ODA Official Development Assistance
OECD Organisation for Economic Co-operation and Development
OJ Official Journal
OMPI Organisation des Modjahedines du peuple d’Iran
OPLAN Operation Plan
OpsCenter Operation Centre
OSCE Organisation for Security and Cooperation in Europe
PHARE Pologne, Hongrie Assistance à la Reconstruction Economique
PIFWC Persons Indicted for War Crimes
PKK Kurdish Workers’ Party
PR/HR Personal Representative on Human Rights
PSC Political and Security Committee
RELEX External Relations
RSP Regional Strategy Paper
SAA Stabilisation and Association Agreement
SAP Stabilisation and Association Process
SG/HR Secretary General/High Representative for the Common Foreign and
Security Policy
SITCEN Joint Situation Centre
SOMA Status of Missions Agreement
TACIS Technical Aid to the Commonwealth of Independent States
TEC Treaty Establishing the European Community
TEU Treaty on European Union
TFEU Treaty on the Functioning of European Union (ex-TEC in Lisbon)
UK United Kingdom
UN United Nations
UNCAT United Nations Convention Against Torture
UNDP United Nations Development Programme
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UNICEF United Nations Children’s Fund
UNMIK UN Mission in Kosovo
UNSC United Nations Security Council
UNSCR United Nations Security Council Resolution
US United States
VCLT Vienna Convention on the Law of Treaties
WHO World Health Organization
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