Ellen Cantraine, PhD researcher, Ghent European Law Institute
Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219” / CC BY-SA 4.0 / see also
After the military coup attempt in 2021 in Mali, the mission of the EU to Mali (hereinafter “EUTM”) remained operational, despite evidence of severe wrongdoing by EU trained soldiers. EUTM was funded by the European Peace Facility (hereinafter “EPF”) and has revealed significant weaknesses in the external funding of the EU. According to the UN International Commission of Inquiry for Mali, Malian troops trained by the EU under EUTM have engaged in numerous abuses including extortion, ill-treatment and extrajudicial executions.
In a watershed moment in February 2022, the Council of the EU unanimously decided in its Decision 2022/339 to fund - likewise under the EPF - the provision of military equipment designed to deliver lethal force, to Ukraine in its Decision 2021/509 (hereinafter “EPF Council Decision"). On October 17, 2022 the Council adopted a Decision establishing the European Union Military Assistance Mission in support of Ukraine training mission of the EU to Ukraine (hereinafter “EUMAM”). The European Peace Facility (hereinafter “EPF”) will finance the common costs of the mission up to 106 million euro. It is the first time that the EU will finance the purchase and delivery of arms and lethal weapons. As summarized by EU’s Foreign Policy Chief, Josep Borrell, “another taboo has fallen”. Notwithstanding the importance of this move, questions are being raised about the respect for human rights in the implementation of the EPF in Ukraine and the concomitant lack of transparency, democratic oversight and accountability mechanisms.
The EPF is an off-EU budget, financed by the EU Member States, which finances operations with military implications and provides support for inter alia training and equipment, including the provision of lethal weapons to EU partner countries. The EPF builds on the EU’s experiences with the Athena Mechanism and the African Peace Facility (hereinafter “APF”) and integrates this former support provided via the APF. Since its adoption in 2021, it has become the main source of funding for European Union external actions in the field of crisis management and conflict prevention. The EPF aims to facilitate the EU’s Global Strategy by contributing to the Common Foreign and Security Policy operations that are military and security oriented. Since the EU Treaty prohibits the use of its regular multiannual budget for activities of a military nature in Article 41 (2) TEU, the fund is off-budget. This off-budget qualification was proposed by the former High Representative, Federica Mogherini and requires unanimous approval by EU Member States through an EU Council Decision for funds to be allocated. All the while, Member States remain bound by Article 21 (1) TEU. When juxtaposing this commitment with the recent announcements of several arms deliveries from Member States to Ukraine, the question of compliance with the rule of law, linked to the principle of democracy and respect for human rights, in its external relations becomes even more pertinent.
According to Article 2 TEU the EU is founded on the rule of law and seeks to promote the values enshrined therein through its external action based on Article 21(1) TEU. A crucial factor in establishing the EU as a credible actor in its Common Foreign and Security Policy (hereinafter “CFSP”) and Common Security and Defence Policy (hereinafter “CSDP”) is whether it can live up to its own standards and values. We also find evidence of this in the EPF Council Decision. Article 56 (2) of the EPF Council Decision states that all assistance measures must comply with Union law and with Union policies and strategies, such as the Integrated Approach to external conflicts and crises. There is no provision for any form of judicial review by Court of Justice of the European Union (hereinafter “CJEU”) of the assistance measures. Given the restrictive judicial control exercised by the CJEU over CFSP and CSDP missions on the basis of Article 24(1) TFEU, foreign and security policy remains a traditional core area of exclusive Member State control. Against this backdrop, the question arises whether rule of law mechanisms ensuring transparency, accountability and democratic control are embedded in the EPF that allow for an ex-ante or ex-post verification of the use of the funding. The backlash of EU-delivered equipment going rogue could be significant but is currently being downplayed.
Øby Johansen previously examined the various accountability mechanisms available to the EU in its CSDP missions when human rights violations occur. He concluded that CSDP missions can cause human rights violations, that these human rights violations can be attributed to the Union and showed that it is doubtful whether the accountability mechanisms for CSDP missions provide sufficient protection for individuals whose rights have been violated (Øby Johansen, 2016). Conversely, Rutigliano argues that the current lethal equipment being sent to Ukraine appears to be in line with the principles of EU and international law (Rutigliano, 2022). However, she rightly points out that insofar the weapons are used in a non-compliant manner, this will lead to a complex issue of international responsibility and accountability. This is particularly important as the EPF is an extra-budgetary fund, not subject to parliamentary control by the European Parliament and does not fall under the scope of the judicial review by the CJEU.
Considering the risks and misuse associated with delivering lethal equipment in already unstable and fragile contexts (Maletta & Héau, 2022), providing arms by Member States through an extra-budgetary fund should be transparent (European Parliament resolution of 17 February 2022 on the implementation of the Common Security and Defence Policy – annual report 2021) to be in line with the EU’s integrated approach to external conflicts and crisis as a matter of good administrative practice, key to the rule of law. The principle of good administrative practice, enshrined in Articles 41 and 42 of the Charter, does not apply to CSDP missions as they do not constitute an EU body within the meaning of Article 15(3) TFEU. However, the EEAS remains bound, the European Ombudsman defines maladministration as follows: “maladministration occurs if an institution or body fails to act in accordance with the law or the principles of good administration, or violates human rights”. Particularly in the light of recent developments, namely the supply of battle tanks to Ukraine, it is even more important to ensure transparency in the supply of arms to be in line with Article 1 e) of Council Decision (CFSP) 2020/1464 of 12 October 2020. Especially, since some authors point out that before the Russian invasion, Ukraine was host of one of the largest illegal arms markets in Europe (Fotidiadis & Schmidt, 2022). Several EU principles, including transparency, democratic control and accountability, are severely under considered in the EPF.
In its Global Strategy, the EU declares its commitment to the principles of accountability, responsibility, effectiveness and transparency. Considering that legal and institutional transparency is essential for the exercise of accountability (Judgment of 21 April 2021, Pech v Council, Case T-252/19, para 26), and therefore for the respect of the rule of law in CSDP missions (European Parliament, Human Rights Factsheet). The EU fails to live up to its own standards in practice. The process of the arms deliveries and how these requests are made under the EPF are determined by the Integrated Methodological Framework (hereafter “IMF”). This framework sets out the guiding principles and possible concerns to be addressed when assisting partners in pursuit of the objectives of CSDP missions such as EUMAM and EPF assistance measures. Under this Framework, the Council will approve the assistance measure and will elaborate on the requirements which are necessary to allow for the delivery of military items. The beneficiary of the items should respect international law, particularly international human rights law and international humanitarian law. One important side note, the framework is not made public.
In January of last year, a complaint was lodged with the European Ombudsman to make the IMF Framework public. The complaint was rejected on the basis of the exception in Article 15 TFEU, the EEAS argued that disclosing the documents could undermine the protection of the public interest (European Ombudsman, Case 124/2022/NH). Article 15 (3) TFEU, “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph”. While transparency is a prerequisite for implementing an accountable and legal system in accordance with the rule of law, the legal framework for public access to documents does not apply to CSDP missions. As CSDP missions are not EU bodies within the meaning of Article 15 TFEU (Judgment of November 12, 2015, Elitaliana SpA v Eulex Kosovo, Case C-439/13, para 54), they act under the responsibility of the Council and the High Representative of the Union for Foreign Affairs and Security Policy. They are not subject to the requirements of access to documents, nor to Articles 41 and 42 of the Charter. In order to fill this legal vacuum, some CSDP missions adopt a specific policy on public access to documents (EUNAVFOR MED Operation SOPHIA), but transparency remains dependent on the good-will of each CSDP mission itself. There are calls for more transparency from the top down. In the 2021 annual report on the implementation of the CSDP missions, the European Parliament calls for regular and transparent evaluation of all CSDP missions and actions.
Additional to the lack of transparency and to the entire arms delivery process, there is no democratic control over the decisions to supply. The Lisbon Treaty has not greatly increased the democratic scrutiny over CFSP and CSDP by the European Parliament. Moreover, as the EPF is established as an intergovernmental CFSP instrument, the European Parliament is not involved and has no formal oversight role. Instead, it is the EEAS that will ensure monitoring and control based on the situation on the ground. Whether the EEAS’ risk analyses are always correct is questionable however, as the Mali experience is a blazing example of this. The mission was implemented and coordinated by High Representative and the EEAS. Despite the training of the Malian Armed Forces under the EUTM mission, some members committed abuses such as ill-treatment, extortion and extrajudicial executions (UN International Commission of Inquiry for Mali, 2021). Moreover, a former EUTM trainer claims that the fact that there have been abuses justifies the EU’s training mission: “If the Malian army was already perfect, it wouldn’t need EUTM’s support.” The EEAS has previously fallen short in following up on missions, and not all policy documents are made public in Mali. While acknowledging the need for (limited) military confidentiality, legal and institutional transparency remains a key element to build accountability (Barnard & Peers, European Union law 2017). The lack of adequate mechanisms to protect against human rights violations has not gone unnoticed by NGOs. In October last year, a complaint was lodged with the European Ombudsman. The complainants are of the opinion that the EEAS has failed to properly assess the potential risk to human rights and to carry out impact assessments in relation to its technical assistance engagement with non-EU countries (European Ombudsman, Case 1472/2022/MHZ).
The EEAS has an explicit obligation to uphold human rights and the rule of law in its relations with third countries. The new EU Action Plan on Human Rights and Democracy 2020-2024 provides several tools, but these remain rather “empty” and unenforceable regarding CSDP missions. CSDP missions are not official EU bodies and fall under the responsibility of the EEAS. Several NGOs have recently lodged a complaint with the European Ombudsman, claiming that EU institutions and agencies have an explicit obligation to promote human rights and the rule of law in their relations with third countries, this also applies to the EEAS (European Ombudsman, Case 1472/2022/MHZ). Nevertheless, the EEAS shows a lack of ex-ante human rights impact assessments. These assessments can be a useful tool for arriving at a balanced assessment of the potential impact of a CSDP mission. So far, the trade-off between secrecy and transparency tends mainly towards the former, at the expense of respect for human rights and the rule of law.
If the EEAS fails, national parliaments could arguably exercise an oversight role on the basis of Articles 10 (2) and 12 TEU. Unfortunately, national parliaments are not the right institution to control the CSDP missions. National parliaments do not have the necessary knowledge, experience or information to exercise adequate democratic control over specialized CFSP budget allocation. It is extremely difficult for members of national parliaments to acquire the necessary oversight and expertise to be able to judge these decisions effectively. As a result of the weak and formal national democratic powers, the structural shortage of information and lack of transparency there is a weak de facto and de jure accountability for information and for conduct. This applies to both the European and national levels. The European Parliament wants to exercise effective control, which would only increase the accountability and transparency of the EPF, but there is no legal basis for this in the TEU. This leads to CSDP missions which are to a large extent politically unchecked at national and European level. Some scholars argue that parliamentary control by national parliaments is a necessary complement to the scrutiny of the European Parliament but cannot be a replacement (De Baere, 2008). The clear lack of democratic control at national and European level is alarming, especially regarding the check with (international) human rights.
Lastly, as far as accountability is concerned, several scholars have already discussed this issue. Their observations show that there are few sufficient accountability mechanisms at the European level, and that accountability is mainly provided at the national level, as far as the CSDP and CFSP are concerned. In case of misuse of supplied weapons in Ukraine, the Member States concerned can be held responsible. However, sufficient information must first be available to identify the responsible party. The limitation of accountability mechanisms could be offset by the potential role of the European Parliament in scrutinizing EU actions in the context of CSDP missions (Schmidt, 2020). However, in the case of the EPF, the European Parliament remains painstakingly absent from the “democratic “picture.
The current governance structure of the EPF - operating under a Facility Committee - reduces costs and it facilitates consistency at the expense of compliance with international human rights. The demand for transparency and accountability is particularly important in the current context of abuses in CSDP missions, which are often swept under the rug. Transparency, accountability and democratic control need to be worked on for the past to not repeat itself.
As noted above, the EPF is a new off-budget fund, here the main problems of transparency, lack of parliamentary oversight and accountability have emerged, which several scholars have already argued are substandard in CSDP missions. Moreover, without adequate safeguards, the EPF threatens weakening the rule of law worldwide and could possibly contribute to potential human rights abuses. The lack of adequate rule of law mechanisms is difficult to reconcile with the EU’s ambition to “lead by example” in its external relations and that claims to stand up for transparency, accountability and responsibility in its integrated approach.
Given the uncertain and volatile geopolitical environment in which the EU finds itself, the choice for the EPF makes strategic and operational sense. However, there is a need to ensure that the governance structure of the EPF can act appropriately and learns from the lessons of the past. It now appears that there is a policy of flashpoint without a clear framework of democratic scrutiny, transparency and accountability. In times of crisis, appropriate and rapid action must be taken, but it cannot be that certain EU values, and international human rights are openly flouted. The lessons of the past are there to be learned, not repeated.
The EPF is important for putting Europe on the map and for providing military decisiveness in times of crisis. Given the problems of accountability as a form of ex-post control, already outlined, it would be appropriate to insist at least on transparency ex-ante with democratic scrutiny by the European Parliament, so that there is one safeguard to check that international human rights and the of the rule of law more broadly, are being respected. The EU's ambition to be a 'credible Union' in its external action, upholding its own values – accountability, transparency and democratic control, falls short.
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