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Published online by Cambridge University Press: 04 June 2014
In this contribution, I will identify the main issues relevant for the applicability and application of international humanitarian law (IHL) in military operations under the command of the European Union (EU) and I will briefly describe the EU's practice and policy in this respect.1
1 See more extensively Naert, Frederik, ‘Observance of international humanitarian law by forces under the command of the European Union’, in Horvat, Stanislas and Benatar, Marco (eds.), Recueil of the XIXth International Congress of the International Society for Military Law and the Law of War (Québec City, 1–5 May 2012), Legal Interoperability and Ensuring Observance of the Law Applicable in Multinational Deployments, International Society for Military Law and the Law of War, Brussels, 2013, pp. 373–404Google Scholar.
2 See Naert, Frederik, ‘The application of human rights and international humanitarian law in drafting EU missions’ mandates and rules of engagement’, in Gómez, Mariano J. Aznar and Trascasas, Milena Costas (eds.), The Integration of the Human Rights Component and International Humanitarian Law in Peacekeeping Missions Led by the European Union, CEDRI/ATLAS, 2011, pp. 61–71Google Scholar (also available at: www.law.kuleuven.be/iir/nl/onderzoek/wp/wp151e.pdf). All internet references were last accessed on 30 May 2013.
3 See generally www.consilium.europa.eu/eeas/security-defence?lang=en; Naert, Frederik, International Law Aspects of the EU's Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights, Intersentia, Antwerp, 2010Google Scholar (based on a thesis available at: https://lirias.kuleuven.be/bitstream/1979/1986/1/Doctoraatsthesis_Frederik_Naert_08-09-2008_final.pdf); and Blockmans, Steven (ed.), The European Union and International Crisis Management: Legal and Policy Aspects, TMC Asser Press, The Hague, 2008Google Scholar.
4 See the (revised) ‘Suggestions for crisis management procedures for CSDP crisis management operations’, EU Council Doc. 7660/2/13, 18 June 2013, available in the public register of Council documents at: www.consilium.europa.eu/documents/access-to-council-documents-public-register?lang=en (unless stated otherwise, Council documents cited below are available there).
5 Sometimes called the Mission Plan.
6 See Concept for the Use of Force in EU-led Military Operations (partially declassified in EU Council Doc. 17168/09 EXT 1, 2 February 2010).
7 Ibid., p. 6, paras. 1–2.
8 See especially EU Concept for Military Command and Control, Council Doc. 10688/08 REV 3, 13 September 2012. For civilian CSDP operations, see Council Doc. 9919/07 EXT 2, 1 February 2008 (partially declassified).
9 Operational Control (OPCON) is defined in Council Doc. 10688/08 REV 3, p. 25.
10 This section draws on Naert, Frederik, ‘Challenges in applying international humanitarian law in crisis management operations conducted by the EU’, in Millet-Devalle, Anne-Sophie (ed.), L'Union européenne et le droit international humanitaire, Paris, Pedone, 2010, pp. 139–150Google Scholar. See also generally F. Naert, above note 1; F. Naert, above note 3, pp. 463–540; and Marten Zwanenburg, ‘Toward a more mature ESDP: responsibility for violations of international humanitarian law by EU crisis management operations’, in S. Blockmans (ed.), above note 3, pp. 395–416.
11 Official Journal of the European Union (OJ), C 326, 26 October 2012 (consolidated version after the Treaty of Lisbon).
12 See generally F. Naert, above note 3, pp. 97–191; and Frederik Naert, ‘Legal aspects of EU operations’, in Journal of International Peacekeeping, Vol. 15, 2011, pp. 218–242. In addition, Art. 42(7) of the TEU contains a mutual assistance clause.
13 See F. Naert, above note 3, pp. 197–206.
14 This is recognised, at least to some extent, in Art. 2(2) of the 1994 Convention on the Safety of United Nations and Associated Personnel, New York, 9 December 1994, and in section 1.1 of the UN Secretary-General's Bulletin on Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, 6 August 1999, available at: www.icrc.org/eng/resources/documents/misc/57jq7l.htm.
15 See Arts. 3(5), 21(1) and (2)b–c of the TEU; and Naert, Frederik, ‘The application of international humanitarian law and human rights law in CSDP operations’, in Cannizzaro, Enzo, Palchetti, Paolo, and Wessel, Ramses (eds), International Law as Law of the European Union, Martinus Nijhoff, Leiden, 2011, pp. 189–212CrossRefGoogle Scholar.
16 See e.g. the Salamanca Presidency Declaration (outcome of the seminar of 22–24 April 2002, Doc. DIH/Rev.01.Corr1, on file with the author): ‘Respect for [IHL] is relevant in EU-led operations when the situation they are operating in constitutes an armed conflict to which the forces are party.’
17 See www.consilium.europa.eu/eeas/security-defence/eu-operations?lang=en for details on all operations.
18 Moreover, if the EU and/or its member states become a party to an armed conflict because of the actions of one CSDP operation, this may also affect the legal status of other EU operations in the same conflict area.
19 See F. Naert, above note 10, pp. 142–143.
20 See e.g. European Court of Human Rights (ECtHR), Varnava and Others v. Turkey (18 September 2009, para. 185) and Al-Jedda v. UK (7 July 2011, para. 107); and the EU's guidelines on promoting compliance with IHL (OJ, C 303, 15 December 2009, p. 12), para. 12.
21 See F. Naert, above note 3, pp. 397–408, 418–419, and 544–567; Aurel Sari and Ramses Wessel (eds.), Human Rights in EU Crisis Management Operations: a Duty to Respect and to Protect?, Centre for the Law of EU External Relations, Working Paper 2012/6, The Hague, 2012, available at: www.asser.nl/upload/documents/20121221T112600-CLEER%20Working%20Paper.pdf; and Naert, Frederik, ‘Applicability/application of human rights law to international organisations involved in peace operations – a European/EU perspective’, in Kolanowski, Stéphane et al. (eds.), Proceedings of the Bruges Colloquium. International Organisations’ Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility. 12th Bruges Colloquium, 20–21 October 2011, ICRC & College of Europe, Bruges, 2012, pp. 45–56Google Scholar, available at: www.coleurope.eu/sites/default/files/uploads/page/collegium_42_0.pdf.
22 OJ, C 326, 26 October 2012, p. 391. See also TEU, Arts. 3(5) and 21.
23 See ECHR, Art. 59, as amended by Protocol 14 to the ECHR and Council of Europe Doc. 47+1(2013)008 of 5 April 2013, available at: www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Working_documents_en.asp.
24 See e.g. Doc. 47+1(2013)008, above note 23, pp. 5 and 19–20.
25 See the contribution by Kjetil Larsen and my response thereto in S. Horvat and M. Benatar (eds.), above note 1, pp. 324–335 and 336–344; and especially ECtHR, Al-Jedda v. UK and Al-Skeini v. UK, both 7 July 2011; as well as the agora in Military Law and the Law of War Review, Vol. 50, 2011, pp. 315–445.
26 See e.g. Art. 12 of Council Joint Action 2008/851/CFSP of 10 November 2008 (Atalanta), OJ, L 301, 12 November 2008, p. 33 (as amended); and Art. 3(i) of Council Joint Action 2008/124/CFSP of 4 February 2008 (EULEX KOSOVO), OJ, L 42, 16 February 2008, p. 92. These Joint Actions (now Council Decisions) are the basic legal instrument governing each EU operation. They are adopted unanimously (abstentions are possible) and inter alia set out the mandate, political direction, military command and control, status and funding provisions, relations with other actors, handling of EU classified information, launching and termination/duration of the operation, and participation of third states (i.e. non-EU member states). The modalities for the latter are usually agreed in participation agreements with the EU, either for a given operation (e.g. with Croatia on Atalanta, OJ, L 202, 4 August 2009, p. 84) or in a framework agreement covering participation in any EU operation (e.g. with the US (OJ, L 143, 31 May 2011, p. 2) and with Ukraine (OJ, L 182, 13 July 2005, p. 29)). See Panos Koutrakos, ‘International agreements in the area of the EU'S Common Security and Defence Policy’, in E. Cannizzaro, P. Palchetti, and R. Wessel (eds.), above note 15, pp. 157–187.
27 SC. Res. 1851, 16 December 2008, para. 6, refers to ‘applicable international humanitarian and human rights law’ but the word ‘applicable’ leaves open the question of whether IHL does in fact apply.
28 Art. 21(3) of the 2008 Convention on Cluster Munitions specifically addresses the matter of joint operations by state parties and non-state parties. However, most treaties do not (explicitly) address this.
29 See especially www.icrc.org/customary-ihl/eng/docs/home (but note that some of the ICRC's views on this are contested).
30 Moreover, the EU strongly supports the International Criminal Court in several ways.
31 For example, Ireland and Malta are not party to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, and several member states are not party to the 2008 Convention on Cluster Munitions.
32 For example, the Presidency Conclusions of the 19–20 June 2003 Thessaloniki European Council, para. 74 (available at: www.european-council.europa.eu/council-meetings/conclusions?lang=en) and the Salamanca Presidency Declaration (above note 16).
34 See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, October 2011, 31IC/11/5.1.2, pp. 30–33, available at: www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf.
35 Compare F. Naert, above note 3, pp. 524–526. In the framework of operation EUFOR Libya (which was established but never launched; see www.consilium.europa.eu/eeas/security-defence/eu-operations/completed-eu-operations/eufor-libya?lang=en), the question arose as to whether forces from a member state which was participating in NATO's Operation Unified Protector could participate in an EU-led operation that was to support humanitarian assistance and not be regarded as the forces of a party to the conflict in the latter operation. Compare generally Engdahl, Ola, ‘Multinational peace operations forces involved in armed conflict: who are the parties?’, in Larsen, Kjetil et al. (eds.), Searching for a ‘Principle of Humanity’ in International Humanitarian Law, Cambridge University Press, Cambridge, 2013, pp. 233–271Google Scholar.
36 See above note 20.
37 See Pledge P091 at the 30th International Conference (available at: www.icrc.org/applic/p130e.nsf/va_navPage/POAI?openDocument&count=-1); and Pledges P1311, P1318, and P1319 at the 31st International Conference (available at: www.icrc.org/pledges).
38 See www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html and the Council conclusions of 27 February 2012 on EU priorities at the UN Human Rights Council, para. 13, p. 19, available at: www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/EN/foraff/128226.pdf.
39 See F. Naert, above note 3, pp. 355–357, 435–449, 506–526, and 641–646; and Naert, Frederik, ‘The international responsibility of the Union in the context of its CSDP operations’, in Koutrakos, Panos and Evans, Malcolm (eds.), The International Responsibility of the European Union, Hart, Oxford, 2013, pp. 313–338Google Scholar. See e.g. Treaty on the Functioning of the European Union, Arts. 19(1), 274, 275, 340, and 343 and Protocol No. 7 on the privileges and immunities of the EU as well as relevant SOFAs. The EU will normally conclude a status of forces/mission agreement (SOFA/SOMA) with the host state. See Sari, Aurel, ‘Status of forces and status of mission agreements under the ESDP: the EU's evolving practice’, in European Journal of International Law, Vol. 19, 2008, pp. 67–100Google Scholar. These are negotiated on the basis of a model SOFA or SOMA: see, on the one hand, EU Council Documents 12616/07 of 6 September 2007 and 11894/07 of 20 July 2007 and COR 1 of 5 September 2007; and on the other, EU Council Doc. 17141/08 of 15 December 2008.
40 For an exception relating to operation Atalanta, see a judgement of the Cologne administrative court of 11 November 2011, available in German at: www.justiz.nrw.de/nrwe/ovgs/vg_koeln/j2011/25_K_4280_09urteil20111111.html (under appeal).
41 For example, whether the threshold of an armed conflict has been crossed, whether a conflict has an international or non-international character, or whether the EU and/or its member states are a party to the conflict. See, in respect of multinational operations, ICRC, above note 32, pp. 10 and 31. Compare F. Naert, above note 3, p. 535.
42 The OPLAN and ROE cannot require a member state's forces to act contrary to their national law.
