EUROPEAN PARLIAMENT
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2004
2009
Subcommittee on Security and Defence
- Secretariat -
21.02.2006
NOTICE TO MEMBERS
Subject: Defining a new UN approach to the ends, ways and means of military intervention: a framework for the European Union
Author:
Paul Claesson
DG Translation and Publishing, Directorate B
Swedish Translation Unit
TOA 01A023
European Parliament, Luxembourg,
Tel. +352-430024162
[email protected]
The opinions expressed in this document are the sole responsibility of the author and do not
necessarily represent the official position of the European Parliament.
Manuscript completed in February 2006
Copies available at [email protected]
DIRECTORATE-GENERAL
FOR EXTERNAL POLICIES
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Table of contents
1.
Introduction
3
2.
Legal constraints versus the need to act: the UN context
5
3.
Legal constraints: the UN Charter
6
4.
The need to act: legality versus legitimacy
7
5.
Reassessing sovereignty
9
6.
From principles to policy?
10
7.
Defining operational needs: EU–UN military cooperation
11
8.
A triple democratic deficit: accountability in the UN
13
9.
Conclusion
15
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1.
Introduction
This note is based a longer, ongoing study on a range of issues related to the growing role of
the EU in intervening in conflict situations in response to humanitarian crises.1 Prepared for the
hearing on “The EU and the Use of Force: Criteria for Intervention”, arranged by the Subcommittee on Security and Defence (SEDE) on 23 February 2006, it is intended to provide a
background for discussion on aspects pertaining to one of these issues: the UN’s approach to
the ends, ways and means of military intervention, and its implications for the use of force under EU flag.
During the 1990s, and in particular after the failure by Europeans to respond adequately to the
break-up of Yugoslavia, there has been growing acceptance of more robust intervention in humanitarian crises, including the use of force. NATO Allies, among them prominent EU Members, were the first to move toward this form of intervention, sometimes referred to as peace
support operations (PSOs, as distinct from more traditional peacekeeping operations). The
EU’s Member States have followed NATO’s lead on this, assuming the commitments spelled
out in the Anglo-French St Malo declaration. Even so, the notion of EU military intervention
and use of force (as opposed to NATO intervention, and as distinct from the traditional peacekeeping tasks associated with current ESDP operations) is new and, to many, disconcerting. It
raises fundamental questions about the nature and role of the European Union as a security actor. A readiness to intervene with military force implies assumptions about its vocation that not
all Member States, nor all its citizens, may be prepared to accept. At the same time, an unwillingness or unpreparedness to respond adequately to humanitarian crises, in particular when
they involve the large-scale loss of life, raises other, equally valid questions about the practical,
political and ethical consequences of such a stance. Should the defence of the values at the core
of EU policy be subject to geographical or other limits? Conversely, should these values be imposed?
The current crisis in Darfur, still unsolved after three years of irresolute efforts by the international community to intervene, evokes earlier experiences in Rwanda, Bosnia, Congo and Kosovo. Does the EU have an active role to play, on the ground, in hastening the international
community’s laggard response to such urgent crises? If so, what are the premises and implications to consider – legal, political as well as practical and financial? The aim here is to provide
one vantage point from which to address these questions. In so doing, it builds on the following
premise: While the Treaty on European Union does not explicitly require a UN mandate for EU
military intervention, the political reality is such that the terms for the use of force under an EU
flag have been developed for operations under the authority of a UN Security Council mandate.
Hence, understanding the evolution of the EU as a security actor, ready to deploy force, requires an understanding of current debates on the constraints on the use of force established in
the UN Charter as well as their continued relevance and application.
In discussing criteria for the use of military force, it is customary to make a distinction between
the right to resort to force (jus ad bellum) and the rules in international humanitarian law relating to the conduct of war (jus in bello). This note concentrates on the former as it pertains, specifically, to criteria for multilateral (or multilaterally mandated) military action in third coun1
Claesson, P., “Criteria for the use of force: balancing the ends, ways and means of EU military intervention”,
SEDE (forthcoming).
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tries without the consent of the governments of those countries. As such it does not address issues relating to traditional peacekeeping efforts, which by definition require the consent of the
country or countries hosting the intervening forces. This means that the military operations
hitherto carried out in the framework of the ESDP fall outside the scope of this study.2 Also, it
does not address issues involving traditional military threats such as inter-state war, which, inasmuch as they concern the EU, pertain to the uncontested and thus, in this context, moot
premise of the universal right of self-defence against armed attack.3
A note on the context of this discussion. Decisions to use force are never made solely on the
basis of legal considerations. Establishing criteria for the use of force in a given situation
means striking a balance between different – and often contrasting – aspects of the rule of law,
involving contestable judgements of what constitutes just cause, necessary and sufficient force
and, not the least, the limits to state sovereignty. This is a political process that entails setting
priorities – not the least with regard to preferred notions of security and other dictates of national interest, involving the balancing of a constellation of legal and moral considerations that
go beyond the letter of the law, or the writ of the UN Charter. To this end, it is helpful to group
these different aspects under three headings:
Ends – addressing just cause: When is the use of force justified? What constitutes a threat requiring military intervention, and by what criteria should the threshold for military as distinct
from non-military intervention (such as sanctions) be determined?
Ways – ensuring proper authority and democratic accountability: Who determines what constitutes a threat, and by what authority may force be used to address it? By what mechanism(s)
should this authority be held accountable to democratic scrutiny?
Means – responding with necessary and sufficient force: How to determine the kind and level
of force required to meet the task? Who provides the resources – and what is the proper mandate for their use?
The way these questions are addressed – in the UN, in the EU and in the Member States – is
determined by the weight accorded to these various considerations, in light of preferred notions
of security, in a given crisis situation and in a specific political context. Figure 1 offers one way
to visualise this interplay of the ends, ways and means of military intervention. The inherent
tension among these, in effect describing the current crisis of the UN Charter system, can be
summarised in three sets of contrasting concerns: legal constraints versus the need to act;
availability of resources versus what’s needed on the ground; and oversight versus efficiency. 4
The focus of this note is on the first of these three headings, addressing issues that impinge
mainly on the debate over UN authority, with two concluding sections touching on aspects of
the availability of resources, and oversight, as they pertain to the UN.
2
For a survey of lessons learned from these experiences, see Crollen, E., An Overview of ESDP Operations, prepared concomitantly with this study.
3
As stipulated in Article 51 of the UN Charter, the right of individual or collective self-defence against an armed
attack is inherent to all states. It is therefore without consequence for the discussion of the limits and failures of
the Charter system, which specifically pertain to the monopoly vested on the UN Security Council to authorise the
use of force in situations not encompassed by the terms of Article 51 (see section 3).
4
This corresponds to the structure of the longer study.
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ends:
addressing
just cause
legal constraints
vs.
the need to act
availability of resources
vs.
what’s needed on the ground
Criteria for
the use of force
ways:
ensuring proper authority and democratic accountability
means:
responding with necessary
and sufficient force
oversight
vs. efficiency
Figure 1. Balancing the ends, ways and means of military intervention
2.
Legal constraints versus the need to act: the UN context
To understand the limits on the multilateral use of military force today, it is necessary to understand the specific challenges facing the UN Charter system since the close of the Cold War.
One legacy of the Cold War left a Security Council conditioned by the habit of its vetowielding permanent members to let national agendas take precedence over collective interests,
and by a prudent reading of the Charter subordinating arguments for addressing humanitarian
wrongs by military force to the more pragmatic precept of inviolable national sovereignty. During the bipolar order of the Cold War, this did not present an insurmountable problem. While
the Security Council and the Charter provided the trappings of global governance, capable of
sustaining a large – and largely effective – peacekeeping effort,5 the use of force as such remained the prerogative of the two superpowers and their respective proxies, and wielded
within – and to sustain – their respective spheres of control.6 With the eclipse of the Cold War,
this legacy has come back to haunt the UN. Many of the proxy wars sustained in the name of
the East–West confrontation masked local conflicts whose dynamics would outlast it. In the
past fifteen years, the Security Council has on several occasions failed to reach agreement on
taking military action to counter threats to international peace and security. 7
5
Between 1948 and 1989, by convention the year marking the end of the Cold War, the UNSC authorised 20
peacekeeping missions in 15 different locations world-wide. It is interesting to note that the two subsequent missions (a naval interdiction mission in the Persian Gulf to enforce economic sanctions on Iraq, and Operation Desert Storm of Gulf War fame, both authorised in 1990 and euphorically heralded as the first post-Cold War missions) marked the first authorisations since 1948 to invoke Chapter VII.
6
The two notable exceptions to this, the initial deployment of UN forces to Korea in 1950 (the Korean war) and in
Egypt in 1956 (the Suez crisis) prove the rule: both missions were authorised because superpower veto was circumvented. In the first instance, a Soviet veto was avoided by the USSR’s boycott of the UNSC at the time. In the
second instance, the controversial 1950 Uniting for Peace Resolu-tion was invoked, as on a few other occasions,
to circumvent a stalemated UNSC to allow the General Assembly to authorise operations contested by one or
more of the permanent five members.
7
For a discussion of the external and internal challenges to UN authority on the use of force after the Cold War,
see section 2 in the longer study: “The crisis of the UN Charter system: 1990–2005”.
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This entrenched irresolve of the Security Council left it unprepared to address the three new
tests to its authority that emerged during the 1990’s: the sudden festering of intra-state conflicts
(whether new, frozen or simply long hidden); the eroding influence of the new, asymmetric
balance of global power on UN authority and the rise of regional powers; raising the prospect
for a new multi-polarity; and, more recently, the emergent threat to global peace posed by nonstate actors. Together, these challenges stretched the already tenuous reach of the Security
Council to the very limits of what the Charter and international law allow, and led to the difficulties and outright failures faced by the international community in places such as Somalia,
Rwanda, Bosnia, Kosovo, Iraq, and Darfur. In response, a new debates has emerged on the use
of force to tackle these new types of conflicts. In these, the central question has been how to
reconcile the urgent need for the international community to intervene, and to agree on a common approach, in such crises without side-stepping or undermining the constraints of international law.
3.
Legal constraints: the UN Charter
The UN Charter outlines the basic norms of international law concerning the use of force. Article 2(4) in the Charter lays down the fundamental principle that any threat or use of force between states is prohibited under international law:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
The Charter provides for only two exceptions to this general prohibition. First, according to
Article 51, states retain the right of individual or collective self-defence against an armed attack, until such time as the Security Council has taken the necessary collective measures:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if
an armed attack occurs against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by Members in the
exercise of the right of self-defence shall be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or restore international peace
and security.
Second, under Chapter VII (“Action with respect to threats to the peace, breaches of the peace,
and acts of aggression”), Articles 39 and 42, the Security Council may authorise the use of
force to maintain or restore international peace and security if military force is deemed necessary to counter a threat to the peace, a breach of the peace or an act of aggression:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. [. . .]
Should the Security Council consider that [non-military] measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
The inherent weakness of the Charter system is that it combines a set of unassailable legal
principles with premises that are not cast in stone. Specifically, it requires a clear understanding
of and adherence to the explicit limits to the right to self defence, consensus on what consti-
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tutes possible threats to international peace and security and, most critically, a willingness to
accept the judgement of the Security Council.
4.
The need to act: legality versus legitimacy
The issue of the Security Council’s monopoly on the right to authorise the use of force came to
a head in 1999 in connection with the Kosovo crisis. The North Atlantic Council’s decision to
flaunt the Charter and go to war divided the international community. On one side of the fence
were governments that could find no fault in a course of action that saved thousand of lives,
and who welcomed it as a necessary and pragmatic response above the interests of the permanent five. On the other side were governments that denounced it as an illegal act of war, a
transgression of the territorial integrity and political independence of a sovereign state, and a
serious threat to the international legal order.8
In the diplomatic melee, a middle way emerged. In this view, both camps had a point in that
“humanitarian intervention” without a UN mandate was illegal, but that such action could nevertheless be considered legitimate on political and moral grounds in exceptional circumstances.9 The premise can be summarised as follows: challenged by urgent humanitarian concerns to intervene in a crisis that justifies exception from article 2(4) in accordance with article
39 and 42, but faced with a Security Council unable or unwilling to authorise such action,
states may legitimately intervene on the basis of other established criteria for just cause. So far
so good, but this only provides a framework for the argument. Who is to intervene? According
to which criteria? And – significantly – what are the implications for the Charter and the role of
the UN?
NATO’s intervention in the Former Republic of Yugoslavia (FRY) shows that decision-makers
may decide that the use of force is justified on moral and political grounds even when the legal
basis is lacking. But while a case can be made for breaching the law under exceptional circumstances, as in Kosovo, to turn such an exception into a general policy is a different matter.10
The case made here with regard to NATO can be extended to any coalition of states willing to
undertake a military intervention without Security Council authorisation. Article 53.1 of the
Charter has something to say on this matter (italics added):
The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council [. . .].
For good measure, this injunction is also covered by Article 103:
8
Here it is worth to noting that any of the three permanent members also members of the North Atlantic Council –
France, the UK or USA – could have brought the matter to the General Assembly for authorisation under the Uniting for Peace Resolution, had authorisation to intervene been vetoed (by Russia or China) in a vote in the Security
Council. This option was not pursued.
9
See Danish Institute of International Affairs (DUPI), Humanitarian Intervention: Legal and Political Aspects
(DUPI: Copenhagen, 1999); Independent International Commission on Kosovo (IICK), The Kosovo Report: Conflict, International Responses, Lessons Learned (Oxford University Press: Oxford, 2000).
10
See Simma, B., “NATO, the UN and the use of force: legal aspects”, European Journal of International Law
(EJIL), no. 1, vol. 10 (1999).
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In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the
present Charter shall prevail.
Put simply, any treaty commitments between states (such as among EU Member States under
Article 19 of the TEU, and including obligations under “regional arrangements”, such as
NATO, as described in Chapter VIII) take second place to the same states’ obligation to abide
by the UN Charter, and thereby also by the Security Council’s decisions. It would seem clear
that there is no licence here to have your cake and eat it too.
This leaves states bent on intervention a choice of four “legal-political strategies”. In simple
form – permutations aside – these can be summed up as follows:
1. The status quo strategy – exclusive reliance on the Security Council to authorise humanitarian intervention. The first strategy is simply to stick rigorously to the existing rules, that is, ruling out entirely
the option of humanitarian intervention without authorisation from the Security Council. It preserves
the Security Council as the sole centre for authoritative decision making on humanitarian intervention.
[. . . ]
2. The ad hoc strategy – humanitarian intervention as an “emergency exit” from the norms of international law. This strategy keeps open the option to undertake humanitarian intervention in extreme cases
if the Security Council is blocked. The ad hoc strategy does not, however, seek to challenge the existing
legal order. On the contrary, it aims at preserving the Security Council as the sole centre for authoritative decision-making on humanitarian intervention by justifying such intervention without Security
Council authorisation on political and moral grounds only, as an “emergency exit” from the norms of
international law. [. . . ]
3. The exception strategy – establishing a subsidiary right of humanitarian intervention under international law. This strategy seeks to modify existing international law by establishing – through amendment of the UN Charter or through state practice – a subsidiary right of humanitarian intervention outside the auspices of the Security Council when the Council is unable to act. The assertion of such a legal right would presumably be accompanied by a set of rules and criteria defining i. a. the extreme
cases where such a subsidiary right of humanitarian intervention is justified on legal grounds. In its
pure form, this strategy implies an amendment to the UN Charter. [. . . ]
4. The general right strategy – establishing a general right of humanitarian intervention under international law. This strategy represents the most fundamental change to settled international law. It could either be established through an amendment to the UN Charter, establishing a general right of humanitarian intervention in defined cases of massive human rights atrocities as a parallel to the right of selfdefence, or outside of the Charter, thereby relativising the status of the United Nations. In other words,
it would allow for humanitarian intervention without authorisation from the UN Security Council and
leave humanitarian intervention to the states as a lawful option to be applied at their own discretion. [. .
. ]11
NATO’s intervention in the FRY was a clear and deliberate example of the second option, the
“ad hoc strategy”. The US-led intervention in Iraq four years later was just as clearly a deliberate example of the fourth option, the “general rights strategy”. While each constitutes a major
departure from the established precepts of the UN Charter, the fundamental difference they express with regard to the role of the UN is key to understanding the frame of reference for the
EU vis-à-vis these four options. The “general rights strategy” provides a conceptual framework
for the principles for US unilateral intervention articulated in the so-called Bush doctrine, delineated in the 2002 National Security Strategy (NSS) and accompanied by a great deal of UNbashing. The European Security Strategy (ESS), approved by the European Council in Brussels
on 12 December 2003, was conceived in part as a response to the NSS. It affirmed, on the one
hand, the central role that the special relationship with the USA has to play in addressing
11
DUPI (note 9), p. 112–13.
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shared security concerns and, on the other, the Union’s commitment to “upholding and developing International Law. The fundamental framework for international relations is the United
Nations Charter”. The EU has maintained this dual-track approach to comprehensive security
with some tenacity, despite the strain on it posed by Washington’s cack-handed approach to all
things UN (and the complications this in turn holds in promise for the future for EU–NATO
relations). The ESS’ explicit affirmation of the UN Charter, which on the face of it rules out all
but the first – and hopelessly inadequate – option (the “status quo strategy”), should be read in
light of the concomitant developments in the UN itself. In September 2003, ten years after An
Agenda for Peace12, and only two months before the ESS saw the light of day, SecretaryGeneral Kofi Annan announced the appointment of his High-level Panel on Threats, Challenges and Change, tasked with conducting an in-depth study on global threats, and provide an
analysis of future challenges to peace and security. The Panel’s results were presented to the
Secretary-General on 1 December 2004 in the report A more secure world: Our shared responsibility.13
5.
Reassessing sovereignty
In addressing these issues, the High-level Panel was guided by, and built on, the innovative approach to intervention developed by the International Commission on Intervention and State
Security (ICISS) in its 2001 report The Responsibility to Protect. Rather than accept the terms
implied by the contested notion of a “right to intervene” the ICISS turned the issue on its head.
As argued in the report, the claim to territorial integrity and political independence (guaranteed
by Article 2(4)) should properly hinge on the state’s ability and willingness to assume a “responsibility to protect” the people within it from serious harm. Conversely, if the state in question proves unwilling or unable to meet this responsibility, it should be the obligation of the
international community to assume it. Thus, from the latter’s point of view, the question is not
whether it has the right to intervene but whether it has the right not to, given just cause:
A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.14
This summary expression of just cause builds on established precepts of international humanitarian law. It draws on but is not constrained by the 1948 Convention on Genocide and the
1998 statute of the International Criminal Court.15 On this basis, the report proposes a set of
12
UN Secretary-General Boutros Boutros-Ghali’s ambitious 1992 reports spells out the main principles by which
the UN intended to take the lead on preventive diplomacy, peacemaking, peace-keeping and post-conflict peacebuilding. An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping, Report of the SecretaryGeneral pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992,
UNSC document no. A/47/277 - S/24111, 17 June 1992 (URL: http://www.un.org/Docs/SG/agpeace.html). The
evolution of the ideas in An Agenda for Peace pertaining to the use of force are discussed in section 2.2. in the
longer study.
13
Panyarachun, A. et al., A More Secure World: Our Shared Responsibility, Report of the Secretary-General’s
High-level Panel on Threats, Challenges and Change (United Nations: New York, 2004); URL:
http://www.un.org/secureworld/.
14
See Evans, G. and Sahnoun M. et al., The Responsibility to Protect. Report of the International Commission on
Intervention and State Sovereignty, International Development Research Centre (IDRC: Ottawa, Dec. 2001), p.
xii, “The responsibility to protect – Principles for military intervention: (1) The just cause threshold”; URL:
http://www.iciss.ca/pdf/Commission-Report.pdf.
15
For a discussion, especially as regard use of the term “genocide”, see section 5.4 in the longer study.
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criteria for use of force on humanitarian grounds, derived from the Just War tradition, which
can serve to legitimise military intervention in response to crises on which the Security Council
is unable to agree.
The logic proposed by the ICISS thus goes two ways. By lowering the threshold for intervention without a UN mandate, the Council stands less to gain by inaction and should thus be
more inclined to lead the field. Should the Council still not act, strict adherence to the principles governing the “responsibility to protect” can give legitimacy to an intervention by states
acting without a UN mandate. In essence, then, the ICISS’s contribution lies in its legal and
semantic deconstruction of the established notion of sovereignty, giving the Security Council
greater leeway in its interpretation of “the application of enforcement measures under Chapter
VII” as circumscribed in Article 2.7. By providing a means for reinterpreting a central tenet of
the UN Charter, it bolsters the case against a postulated need to amend it. Beyond that, it is up
to the Security Council to find a way to “work better than it has”16. Until it does, the arguments
marshalled by the ICISS provide an iron-clad case for the “ad hoc strategy”.
6.
From principles to policy?
Highly influential, The Responsibility to Protect nevertheless derives from outside the UN system. This is not the case of A more secure world: Our shared responsibility, prepared at the behest of the UN Secretary-General. The repetition of the word “responsibility” is not incidental.
In matters pertaining to principles for military intervention, the wider-reaching UN report follows closely the ICISS’s lead, often verbatim. In so doing, it translates the conceptual framework for military intervention developed in the earlier study into the terms of reference for the
current debate in UN fora, as reflected in the 2005 World Summit Outcome17. By extension, and
consequential to the precepts regarding the primacy of the UN spelled out in the ESS, it provides the terms of reference for any consideration of the use of military force under an EU flag.
In the ICISS report, the principles for military intervention are grouped under four headings.
The principles under the first heading, “The just cause threshold”, are quoted above. The second heading is “The precautionary principle”. Together, the six principles under these headings
answer the question: when to intervene? They are summarised in the High-level panel’s report
as five basic criteria of legitimacy: seriousness of threat, proper purpose, proportional means,
and balance of consequences.
The third heading, “Right authority”, answers the question: who should intervene? In six
points, the principles are spelled out underpinning the Security Council’s sole authority, and the
way in which it should be exercised. Significantly, in the High-level Panel’s report these principles make no reference to the Security Council. Instead, they are abbreviated by a reference
to an “apposite and legal framework” to be established in accordance with international law
(that is, above all, the UN Charter):
The fourth heading is “Operational principles”. The practical matters raised here – regarding
such things as clear objectives and mandates, adequate resources, unity of command, the prin16
“The Security Council is fully empowered under Chapter VII [. . .] to address the full range of security threats
with which States are concerned. The task is not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has.” Panyarachun (note 13), art. 198.
17
For information on the 2005 World Summit, including link to the Outcome Document, see URL:
http://www.un.org/summit2005/.
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ciple of incrementalism and gradualism in the application of force, rules of engagement, and
coordination with humanitarian organisations – answer the question: how to intervene? Under
the heading “Peace enforcement and peacekeeping capability”, the Panel’s report explicitly
links criteria on such counts to the detailed specifications for doctrine, strategy, budgeting and
decision-making for UN peace operations spelled out in the report of the Panel on United Nations Peace Operations presented in August 2000 (the Brahimi Report).18
Thus, in place of the ICISS’s listing of discrete principles under the last two headings, the
High-level Panel sets them in the context of international law, and latches on to the UN’s existing institutional framework, making a direct and pragmatic link between operational needs and
the availability of resources. The innovative made normative: a shift in paradigm is completed.
By adapting and incorporating these principles for military intervention in this way, the Panel’s
report concludes a formative process nearly fifteen years in the making. This is an important
achievement, providing, inter alia, a frame of reference for the EU to formulate, in the absence
of an adequate legal basis in the acquis, its own criteria for intervention.19 At the same time, it
cannot hide the fact that as far as making the Security Council work differently than it has in
the past, no real progress has been made, as shown by the failed efforts at the September 2005
World Summit in New York to tackle the Council’s ineffectiveness and imbalance.
7.
Defining operational needs: EU–UN military cooperation
Having established the legal and political benchmarks for multilateral military intervention, the
second challenge to EU governments is to agree on how to proceed in an effective manner,
should they decide to do so. This goes to the heart and core of the military operation: defining
the ends and means of the use of force. This boils down to two sets of questions: What is the
nature of the threat, and how does this translate into a basis for determining an adequate military response? What are the capabilities needed to meet the operational need, in quantitative
and qualitative terms, and how should they be configured, equipped, organised and deployed?
In seeking answers to these questions, the Council is guided not only by the hard assessments
of its Member States and EU advisory bodies – the EU Military Committee (EUMC) and the
EU Military Staff (EUMS), reporting through the Political and Security Committee (PSC) – but
by considerations about how a EU response would fit into UN planning for such contingencies.
The Panel on UN Peace Operations proposes that the UN develops the operational capabilities
to deploy complex peacekeeping operations “rapidly and effectively”. The suggested timeframe is 90 days, with mission headquarters fully installed and functioning within 15 days.20
This it cannot do alone. For a start, it does not have a standing army – and any suggestion that
is should is guaranteed to meet strong resistance from Member States, as it has since the idea
was first raised by the UN’s first Secretary-General Trygve Lie.21 This has had permutations
down the line, and the limits to UN capability have been compounded by further constraints.
18
Brahimi, L., Report of the Panel on United Nations Peace Operations, UN doc. no A/55/305–S/2000/809, p. 18;
URL: http://www.reliefweb.int/library/documents/PeaceKeeping.pdf. The report in known by the name of its main
author, Lakhdar Brahimi, former Algerian Minister of Foreign Affairs and close advisor to Secretary-General Kofi
Annan.
19
For a discussion of the current legal basis in the TEU, and the changes proposed in the Constitutional Treaty,
see Ortega, M., “Petersberg tasks, and missions for the EU military forces”, EU Institute for Security Studies,
Paris, Feb. 2005; URL: http://www.iss-eu.org/esdp/04-mo.pdf.
20
Brahimi (note 18), p. 15.
21
See section 6.2 in the longer study.
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The UN has no reserve corps of mission leadership, and force commanders and other leadership components are not sought until the last moment. The stockpile of essential equipment
recycled from the large missions of the mid-1990s has been depleted by the subsequent surge
in military missions, and there is no budget mechanism for replenishing it quickly – Member
States have balked at granting the expenditures needed to rebuild a reserve of equipment, and
have actively discouraged the Secretary-General from planning for operations unless he has
been granted specific, crisis-driven legislative authority to do so by the Security Council. What
is more, until the Security Council adopts a resolution establishing the mandate of a specific
mission, no matter how likely it may seem, the Secretary-General has very limited authority to
acquire, hire and preposition the goods and people needed to deploy it on short notice. In short,
few of the basic building blocks are in place for the UN to acquire and deploy “rapidly and effectively” the human and material resources required to mount complex peace operation. 22
In place of this, the UN relies on an uncertain and cumbersome procedure for standby arrangements with individual or groups of Member States. Reaching satisfactory agreements
with reticent contributors has always been a difficult task for the UN Secretariat, and it has
grown even more difficult in recent years. Financial, military and in particular political obstacles combine to deter governments from committing troops to a forceful ground role in a situation which does not threaten their own security, and which may well prove to be both violent
and open-ended. These obstacles – which basically boil down to a simple lack of will – have
been aggravated by the ongoing downsizing of national military forces in many developed
countries, and the concomitant growth in European regional peacekeeping initiatives outside
the scope of the UN. This has further depleted the pool of well-trained and well-equipped military contingents available to serve in UN-led operations.
Recognisant of the danger to the UN’s readiness to respond to urgent crises, and with reference
to the commitment under the ESS to “equipping it to fulfil its responsibilities and to act effectively”, the EU in September 2003 signed with the UN a “Joint Declaration on EU–UN cooperation in Crisis Management”.23 Building on the success of Operation Artemis24 and addressing UN limits in both military and civilian crisis management, the Joint Declaration highlights the need to identify ways in which the EU can provide military capabilities in support of
the UN.25 A joint consultative mechanism (known as “the Steering Committee”) was established at working level, with regular meetings between staffs from both organisations. In the
course of these, two approaches have been discussed: the provision of national military capabilities in the framework of a UN operation, and the launching of an EU operation in answer to
22
Brahimi (note 18), p. 15–18.
“Joint Declaration on UN-EU Co-operation in Crisis Management”, URL: http://europa-eu.un.org/
articles/en/article_2768_en.htm. The implementation of the Joint Declaration is discussed in Ireland’s June 2004
ESDP Presidency Report: Council of the European Union, ESDP Presidency Report, Annex II: “EU-UN cooperation in Military Crisis Management Operations: Elements of Implementation of the EU-UN Joint Declaration”, adopted by the European Council (17–18 June 2004); URL: http://ue.eu.int/uedocs/cmsUpload/EU-UN%20
co-operation%20in%20Military%20Crisis%20Management20Operations.pdf. .
24
Operation Artemis is the code-name of a 2003 EU Military Operation in the Democratic Republic of Congo,
conducted by invitation and in accordance with UN Security Council Resolution 1484 of 30 May 2003 and the
Council’s Joint Action adopted on 5 June 2003. The Operation ended officially on 1 Sept. 2003. For an overview
of the mission, see Crollen (note 2).
25
For a discussion of EU–UN cooperation on military crisis management in the larger context of EU capability
targets and operational demands, see Quille, G., “The impact of European Union capability targets and operational
demands on defence concepts and planning”, in Stockholm International Peace Research Institute (SIPRI) Armaments, Disarmament and International Security: SIPRI Yearbook 2006, chapter 7 (Oxford University Press: Oxford, forthcoming in 2006) (draft manuscript).
23
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– 13 –
a request from the UN. As for the first, the focus is on how to build on the Member States’
long-standing bilateral and multinational commitments to the UN. One way for the EU to contribute to enhancing UN capabilities in this regard would be to serve as a “clearing house” for
coordinating national contributions by EU Member States, in particular of what the UN calls
enabling capabilities, that is, scarce, expensive capabilities requiring a high level of expertise
for their deployment and maintenance, such as field hospitals or tactical intelligence assets.
The second approach concerns the launching and conduct of an EU operation in support of the
UN but under the political control and strategic direction of the EU, either with a stand-alone
force or as a component of a larger UN mission (a so called “modular approach”). Two models
are envisaged. The first, known as the “bridging model”, aims at providing the UN with time to
mount a new operation or to reorganise an existing one (as with Artemis). Such a model calls
for rapid deployment of EU military capabilities tailored to the mission, an agreed duration,
and an exit strategy specifying the arrival, in time, of a UN force able to take over from the EU
force. The transition between the two operations may be facilitated further by the “re-hatting” –
i.e., participation in the UN operation – of forces previously committed to the EU operation, or
by maintaining some of the enabling capabilities of the EU operation.
As called for by the UN Secretariat, the second or “standby model” would consist of an “over
the horizon reserve” or an “extraction force” provided by the EU in support of a UN operation,
of particular relevance in an African context. Such an operation would be very demanding, and
carry considerable associated risks. It must be available for immediate reaction, requiring complicated coordination between the EU and the UN. As part of the development of the battlegroup concept, this model is currently being analysed in light of experiences of the Danishbased Multi-national Standby Force High Readiness Brigade for UN Operations
(SHIRBRIG)26.
It remains an open question as to whether the EU is willing and able to follow through on the
proposals put forth by “the Steering Committee” – in particular as regards the “standby model”
– and, if so, whether they will in fact resolve UN problems in this area.27
8.
A triple democratic deficit: accountability in the UN
The European Parliament’s influence over how, when and where the EU sanctions the use of
military force is limited. It certainly cannot compare with the final authority in such matters
that rests with some – but by no means all – national parliaments. On the other hand, its budgetary powers, albeit partial, and its right to be informed, gives it some control, and above all
better insight into these matters than national parliaments, which often find themselves outside
the loop of EU decision-making. This leaves the nuts and bolts of the ESDP in a grey zone,
largely beyond the scrutiny of the national parliament of a Member State contributing forces to
EU operations, and essentially outside the reach of a European Parliament peeking over the
Council’s shoulder. This “double democratic deficit” limits the role of either parliament in en-
26
SHIRBRIG provides the UN with a non-standing multinational brigade at high readiness for deployment on a
UNSC mandate, initially under Chapter VI but availability for more robust operations is now considered on a
case-by-case basis. URL: http://www.shirbrig.dk/shirbrig/html/sb_intro.htm.
27
See Quille (note 25), p. 19.
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suring democratic accountability of the use of these national forces.28 The same discrepancy is
an issue with regard to UN decision-making on intervention; indeed, if anything, the difficulties for parliamentarians seeking to establish greater oversight of EU policy and action pale in
comparison with the challenge posed to Member States by UN decision-making processes. For
this reason one could even speak of a triple democratic deficit: if parliamentary oversight is a
challenge on the national level, it is a problem for the EU, and a forfeited loss for the UN. The
last merits a comment.
The lack of oversight of decision-making within the UN, and specifically within the Security
Council, is especially problematic as it applies to coercive measures, including the use of force.
This can be described as a function of three factors. One, the basic premise of international law
is that the two fundamental principles of democracy – the rule of law and majority rule – apply
not to the individual citizen but to the collective state, a circumstance that is in itself tantamount to a democratic deficit. That is to say: the democratic accountability to which an international organisation is subject is a measure of the democratic standing of its membership – for
the UN, read the General Assembly: an intergovernmental body of appointed officials, not a
parliament, its democratic credentials tarnished by the undemocratic regimes among its members, and with a greatly limited oversight function vis-à-vis the Security Council.
Two, the terms for coercive measures under the UN Charter are carefully drafted in light of the
experience of the League of Nations. This applies in particular to the role of the Security
Council, deliberately designed to achieve a concentration of power rather than the debilitating
degree of representativeness that paralysed its predecessor. Today, the echo of that earlier failure rings clearer than ever in the near-total lack of transparency that surround the Security
Council’s deliberations, often held in camera, and in the fact that the overwhelming majority of
states called upon to commit forces to a UN mission have no say in the formulation or revision
of the mission’s mandate.29 While Article 32 of the Charter requires that parties to a dispute are
represented (without vote) in these deliberations, troop-contributing countries without a seat on
the Council have neither a say nor a place in the proceedings. Even voices within the UN argue
that this logic for opaqueness has, over several decades, fostered a decision-making culture
“designed to obscure responsibility”.30
Three, the lack of oversight of the Security Council’s decision-making process can in part be
attributed to sins of omission on the part of states responding to UN calls for contributions to
peace operations. In considering their participation in such missions, the great importance
given by democratic states to a UN mandate is largely a reflection of the weight it carries in
influencing domestic decision-making. This is particularly the case of missions that call for the
use of force: the legitimacy of an intervention is more likely to be questioned the more violent
28
See e.g. Born, H. and Hänggi, H. (eds), Geneva Centre for the Democratic Control of Armed Forces (DCAF),
The ‘Double Democratic Deficit’: Parliamentary Accountability and the Use of Force Under International Auspices (Ashgate: Aldershot (UK), 2004).
29
“In 2004 over three-quarters of the military personnel involved in operations under UN command came from
countries that were not Security Council members [. . .]. By contrast, the five permanent members [. . .] contributed only 4.6 per cent of all civilian and military personnel [. . .], leading to a situation in which states contributing
a tiny minority of troops have a veto power over the mandates and ensuing rules of engagement [. . .]. Born, H.
and Hänggi, H., “Governing the use of force under international auspices: deficits in parliamentary accountability”, SIPRI, SIPRI Yearbook 2005: Armaments, Disarmaments and International Security (Oxford University
Press: Oxford, 2005), p. 221.
30
Ku, C. And Jacobson, H. K. (eds), Democratic Accountability and the Use of Force in International Law (Cambridge University Press: Cambridge, UK, 2003), pp. 358–359, 373.
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the expected confrontation, and the weaker the international authority to intervene. For many
legislators, UN authorisation is essential for them to consent to the use of national military
forces; they are satisfied that the Charter provides the basis for determining whether a decision
to intervene with military force is in accordance with the rule of law. How that decision came
to be taken is more seldom an issue; they may lament the Council’s unwillingness to authorise
an intervention, but tend to be satisfied with the procedure once it has. A similar disregard for
the need for oversight is strangely evident in the UN reports discussed in this study. While the
Brahimi Report gives recommendations on how to improve the effectiveness, decision-making
processes, planning, staffing and management of UN peace operations, it does not address the
issue of democratic accountability. Similarly, the High-level Panel’s report discusses in detail
the criteria for legitimate intervention but does not seriously address the question of oversight.31
9.
Conclusion
From an EU point of view, the current crisis of the Charter system is compounded by a legal
framework out of step with current needs and, as becomes a matter that falls squarely under the
second pillar, an inevitably cumbersome procedure for decision-making and crisis management
largely beyond Parliament’s reach. The situation is further complicated by the political requirements imposed on the ESDP in the context of the CFSP, and by the daily and unending
challenge of dovetailing and coordinating a patchwork of partly incompatible military resources, often subject to particular constraints and caveats, rendering the task of spelling out
the criteria that apply for the use of force in EU military operations anything but straightforward. This complex state of affairs notwithstanding, there are three good reasons for making
the effort:
One, if the legal basis for determining whether force may be used in a given situation is tenuous, or if the use of force hinges on a perception of security that is itself in question, then translating what is allowed in principle to what is allowed on the ground is a matter of political will,
not legal imperative. This has implications for how the EU chooses to interpret its obligations
under the UN Charter. To the extent that the outcome document from the UN World Summit in
September 2005 can be described as a success, this hinges largely on the contribution it makes
by putting an official stamp of approval on the precepts on crisis prevention, intervention, state
sovereignty and the legitimate use of force argued over the past twelve years in the series of
key reports discussed above. Especially in light of the disputed outcome of the Summit, there is
a need for the EU to take stock of these conceptual changes, not least as regards the use of
force, and see how they impinge on current and future operations carried out within the framework of the ESDP. In particular, the EU needs to face the issue of legality versus legitimacy,
and consider how it impinges on fundamental principles enshrined in the UN Charter. This is
first and foremost a task for the Council, but it also raises a serious challenge for Parliament to
work to strengthen its own role, and that of national parliaments, to ensure and improve on collaborative means of accountability and oversight, not least with regard to matters referred to
the UN.
Two, to paraphrase Chekhov, if in the first act you introduce a gun, by the third act you’ll look
pretty silly if you don’t have proper authority to use it. Having built up a complex legislative,
31
“The UN High-level Panel did not touch on the issue of democratic deficits in global security governance, except to pay lip service to making the Security Council more democratically accountable.” Born and Hänggi (note
28), p. 214, in reference to Panyarachun et al. (note 13), art. 249(d).
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administrative and logistical apparatus to allow the EU to intervene with military force, there is
a need to follow through and look at the mandates and options that may be given to the military
personnel at the sharp end of the stick. The recent experience in the Netherlands, where the
shadow of the failed Dutchbat mission in Srebrenica in 1995 the tinged the debate over the
Government’s proposal to send more troop to the International Security Assistance Force
(ISAF) in Afghanistan,32 is a close-hand example of the problem of matching political will and
authority with ready plans and preparations to commit and deploy troops.
Three, as the single most active and influential defender of the Charter system (when its members can agree), and with the United States still insisting on playing a less than constructive
role in this regard, the EU has a unique opportunity and, it could be argued, responsibility to
reaffirm UN authority, by translating these precepts into a tangible and workable system for
governing the use of force in EU peace operations in support of the UN’s humanitarian agenda,
even if at the expense of a reading of the UN Charter that places national sovereignty over human security.
As regard the role of the European Parliament, Hans Born and Heiner Hänggi suggest some
practical measures to enhance oversight of the ESDP that are worth repeating:
·
·
·
·
·
·
·
The Parliament should be given greater authority to scrutinise ESDP spending.
The resources available to AFET [and by implication to SEDE] should be increased (more
staff and a larger budget).
Public access to ESDP documents should be improved, and the Council of Ministers should
be obliged to transmit all ESDP documents to national parliaments.
Following the US Congress, the Parliament could in theory enact “war powers” legislation
defining the conditions and authority under which the EU could declare states of war and
emergency, or send troops to crises outside the EU’s territory. 33
The oversight tasks and powers of national parliaments with regard to national defence
budgets, the authority to deploy troops abroad and procurement, and in the intergovernmental phase of decision-making on EU peace support operations, should be used to the
full.
In their debates, national parliaments should take into account the European aspects of security and defence policy.
The EP and the national parliaments should explore how use the provision on interparliamentary cooperation on the ESDP as proposed in the ‘Protocol on the Role of National Parliaments in the EU’ annexed to the Constitutional Treaty.34
32
See “UN, US pressure Netherlands to send troops to Afghanistan”, AFP wire news service, 30 Jan. 2006, posted
on URL: http://news.yahoo.com/s/afp/20060130/pl_afp/netherlandsafghanistan.
33
The case is argued in Houben, M., “On a European War Powers Act”, Centre for European Policy Studies
(CEPS), Jan. 2005; URL: http://www.ceps.be/Article.php?article_id=80.
34
Born and Hänggi (note 28), p. 221.
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