Application of human rights to EU military operations: mission impossible? (Slovak Yearbook of...

Slovak Yearbook of International Law

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Application of Human Rights To EU Military Operations: Mission Impossible?

Application of Human Rights To European Union Military Operations: Mission Impossible?

Martin Faix1

Abstract

In the last 15 years, the European Union continuously developed its operational capabilities and increased its role as security player, having launched since 2003 more than twenty operations of various character, ranging from monitoring and humanitarian missions to large scale mili-tary operations. The goal of this contribution is to address human rights is-sues arising in the context of EU military deployments. As it will be shown, identification of applicable human rights norms, but also when and how human rights bind upon the Union when deploying troops outside the ter-ritory of its Member States, constitutes a complex issue and a significant challenge for the EU.

Key words

European Union, CSDP, military operations, human rights, crisis management, peace operations

1. Introduction

Mainstreaming of human rights in all aspects of life of the internation-al community can be regarded as one of the most significant developments of the time since the sunrise of the United Nations. On the other hand, 1 JUDr. Martin Faix, PhD., MJI, is senior lecturer at the Palacký University in Olomouc,

Faculty of Law (Department of Constitutional Law and Public International Law). This project is co- financed by the European Social Fund and the state budget of the Czech Republic, POST-UP II (CZ.1.07/2.3.00/30.0041).


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despite achieving significant progress in implementation of human rights, they represent a challenge for states, international organizations and all other actors. One such current challenge is the complex issue of applica-tion of human rights in military operations of regional organizations, such as the EU, AU, or NATO. The continuous emergence of regional organi-zations as security actors and their crisis management capabilities as key instruments of international community for mastering threats to peace and security underline the necessity for an analysis of human rights issues arising in this context. Moreover, military operations are conducted in sit-uations of armed conflict or situations otherwise involving use of force, for which derogations from normally applicable human rights standards are symptomatic. Human rights may also become the legitimizing (and legalizing?) factor for humanitarian interventions carried out by regional organizations. All these aspects arise also with regard to EU operations. Consequently the continual rise of Union s role as a global security player underlines the urgency of its assessment from the human rights perspec-tive.

Taking into consideration the complexity of the issue and the limits of this contribution, the following analysis will concentrate on human rights as an imperative part of CSDP operations legal framework and issues aris-ing from their application. For this purpose it will be necessary to provide a short introduction to the development and current stage of the EU crisis management. Basic information about the CSDP will be followed by the first out of two core issues addressed in this contribution, namely identifi-cation of external and internal sources of EU s human rights obligations, whereas due attention to the nature of the EU as an international organi-zation and other aspects, which are specific for the EU, will be paid. Sec-ond key issue to be analysed are problems arising from the application of human rights standards in CSDP military operations. Within this context, attention will be paid to an aspect inherent to multinational military oper-ations, the extraterritorial application of human rights, which will be ad-dressed here in the context of the European Convention of Human Rights. Finally, albeit extraterritorial application is not an EU distinct aspect, it raises in connection with EU military operations several issues reflecting Union s particularities, as will be demonstrated on the example of the EU s antipiracy mission Atalanta. The analysis of agreements concluded in the context of Atlanta for the purpose of persons suspected of piracy will also show that despite continuous mainstreaming of human rights in CSDP operations certain gaps in human rights protection remain and need to be addressed.


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2. Development and Current Stage of the CSDP

Some twenty years ago European Union could be considered as a world-wide key factor in economic relations, but it appeared rather unlike-ly that it will be able to take in practice its responsibility also as a global security player, carrying out peace operations and applying a wide range of other tools contributing to international peace, security and promotion of human rights. Nevertheless, in order to achieve the proclaimed goal of contributing to an “effective multilateral system leading to a fairer, safer and more united world”, the EU implemented since 1999 a number of chang-es enabling the realization of the Common Security and Defence Policy (CSDP), which constitutes an important part of the EU s Common For-eign and Security Policy (CFSP)2. One of the most apparent elements of this process became crisis management operations. Currently the CSDP emergency and crisis response system enables the EU to respond to whole spectrum of crisis situations and conflicts. It may be used for conflict pre-vention, as well as for strengthening the international peace and security outside the territory of EU Member States (Article 42 TEU). The Treaty of Lisbon widened the spectrum of operations for the fulfilment of these tasks and according to Article 43 TEU, it may carry out “ joint disarma-ment operations, humanitarian and rescue tasks, military advice and as-sistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict sta-bilisation”. Under the crisis management system also civilian missions and hybrid missions are possible. Until now, civilian crisis missions in practice included police missions, missions focusing on border assistance, rule of law, support of security sector reform, and monitoring.

Besides shaping the respective legal framework for crisis management operations, the EU established respective financial and institutional struc-tures3, including permanent military structures within the Council of the EU, such as the Political and Military Committee, which exercise com-mand and control over the EU led contingents4. On the basis of experience gained in the first operations, the EU started to develop also operational capacities5, such as the Battle Groups, the European Rapid Reaction Force or the European Gendarmerie Force. All the above mentioned develop-ments mark a change of the European Union from a solely civil to continu-

2 Art. 42 para. 1 TEU. 3 Martin Faix, Medzinárodnoprávny rámec zahraničnopolitických misií Európskej únie.

Praha: Univerzita Karlova v Praze, Právnická fakulta (2012), 23 – 31.4 Faix (note 3), 99 – 110.5 Ibid., 35 – 40.


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ously military power. Within the framework of the CSDP, the EU has until now carried out more than 20 military (or hybrid civil-military) opera-tions. All military missions undertaken until now have been implemented with the consent of a host state. However, at the current stage the EU could implement also a robust peace enforcement operation. This fact underlines the necessity for clarifying the respective applicable legal framework, in particular with regard to human rights.

3. Human Rights as a part of the legal framework for EU s military Missions (alt. EU and Human Rights)

For the European Union, as a project of integration based on peace, cooperation and rule of law, human rights and fundamental freedoms are an indispensable part of its values and legal foundation. Article 2 TEU de-clares explicitly that the “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between wom-en and men prevail.” Hence the continuing human rights mainstreaming6 in all aspects of the EU is undisputable.7 This is also true for the CSDP.8 It is hardly possible to imagine the EU deploying troops in military mis-sions (often aiming at promotion and protection of human rights)9, which

6 Directorate-General For External Policies of the Union, Directorate B, Policy Depart-ment, Human Rights Mainstreaming in EU’s External Relation: Study, September 2009, http://www.europarl.europa.eu/activities/committees/studies.do?language=EN.

7 The promotion of human rights in external relations of the EU includes various mea-sures, such as human rights clauses in framework agreements between the EU and third States, series of guidelines on promoting specific human rights issues, appointment of an EU Special Representative for Human Rights, adoption of sanctions against indi-viduals or regimes responsible for serious human rights violations, or support for in-ternational criminal justice. See generally http://eeas.europa.eu/human_rights/index_en.htm.

8 See the EU document dedicated specifically to this topic available at http://www.consi-lium.europa.eu/ueDocs/cms_Data/docs/hr/news144.pdf; see also Hadewych Hazelzet, “Human Rights Aspects of EU Crisis Management Operations: From Nuisance to Neces-sity,“ International Peacekeeping Vol. 13 (2006), 564-581; Wanda Troszczynska – van Genderen, Human Rights Challenges in EU Civilian Crisis Management: the cases of EUPOL and EUJUST LEX. Occasional Paper – No. 84, 09 August 2010, accessed 13 September 2013, http://www.iss.europa.eu.

9 For example the mandate of the EUSEC RD Congo explicitly includes the promotion of human rights. The Council Decision 2010/565/CFSP of 21 September 2010 on the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo (EUSEC RD Congo) (O.J. L 248, 22 September


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could not be measured on high human rights standards. In other words, the high level of human rights promoted by the EU in external relations must certainly correspond with its own high internal standards. Further-more, the European Union as an international organization with its own international legal personality has proper human rights obligations from both, international and the EU law perspective. The question of sources and extent of such obligations is however a more complicated one.

3.1 External sources of human rights obligationsFrom the international law perspective, the EU has legal personality,

i.e. possesses the capacity to have rights and obligations under interna-tional law. With the Lisbon Treaty, which introduced the Article 47 TEU, the Union s legal personality has been explicitly recognized10 and the EU is therefore capable of being subject to, among others, human rights ob-ligations.11 To which human rights is it bound in particular? Having the competence to enter into treaties, the EU is bound also by international treaties. However, similar to other international organizations, it is not a party under the key human rights conventions.12 Hence generally it is not bound by the obligations as a matter of treaty law (the constitutional trea-ties and the Charter of Fundamental Rights of the European Union will be considered infra).

2010, 59) stipulates that the mission aims at „assisting the Congolese authorities in set-ting up a defence apparatus capable of guaranteeing the security of the Congolese people, while respecting democratic standards, human rights and the rule of law, as well as the principles of good governance and transparency”. Another example of a mission with mandate explicitly including the promotion of human rights is EUJUST LEX Iraq (c.f. Article 2(2) of Council Joint Action 2009/475/CFSP of 11 June 2009 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX (O.J. L 156, 19 June 2009, 57)).

10 Art. 47 TEU and the Draft notification to third parties before the entry into force of the Treaty of Lisbon (EU Council Doc. 16654/1/09 REV 1 of 27 November 2009).

11 For an overview of legal framework of ESDP operations see: Faix (note 3); Frederik Na-ert, Legal Aspects of EU Operations, Journal of International Peacekeeping Vol. 15 (2011), 241.

12 It has to be mentioned that the European Union is already a party to an international human rights treaty, to the Convention on the Rights of Persons with Disabilities (New York, 13 December 2006)


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As for other treaty obligations it has to be mentioned that the EU often concludes various13 treaties14 concerning its crisis management operations, typically mission-specific treaties, such as Status of Forces/Mission Agree-ments (SOFA/SOMA)15 and agreements with third states concerning their participation in the particular operation16. The SOFA/SOMA agreements are usually concluded in the context of military operations with the coun-try, where the EU troops will be deployed, i.e. with the so-called host state. Such treaties typically contain provisions regulating the status and conduct of activities on the territory of the host state, concerning e.g. questions of the exercise of criminal jurisdiction, privileges and immunities of the de-ployed contingents, settlement of disputes and handling of claims, etc. By insertion of human rights provisions such treaties may become sources of EU s own human rights obligations. In practice however, no such case has occurred – with the exception of the Atalanta transfer agreements17, which will be looked at in more detail in subsequent chapters of this contribution. 13 The typology of treaties being concluded by the EU in the context of its military crisis

management operations includes memoranda of understanding, technical arrange-ments, transfer treaties, or various treaties concluded with third states on participation in the operation, transfer of deployed troops, prosecution of criminals, etc.

14 The Union can conclude international agreements with regard to its operations on the basis of Articles 37 TEU and 218 TFEU. It might be noted that such agreements are con-cluded by the Union as a subject of international law separate from its Member States. Hence not the Member States collectively, but solely the EU becomes party to the treaty; for example Article 2 para 1 of the Agreement between the International Criminal Co-urt and the European Union on cooperation and assistance (O.J. L 115, 28 April 2006, 50), explicitly describes the EU as separate legal person distinct from its Member States. Pursuant to Article 216 para. 2 TFEU such agreements are binding on the Union s insti-tutions as well as its Member States. See Faix, (note 3), 33, 92-95.

15 Examples of such SOFA/SOMA agreements concluded by the EU are Agreement betwe-en the European Union and the Republic of Cameroon on the status of the European Union-led Forces in transit within the territory of the Republic of Cameroon (O.J. L 57, 01 March 2008, 31); Agreement between the European Union and the Republic of Seychel-les on the status of the European Union-led forces in the Republic of Seychelles in the framework of the EU military operation Atalanta (O.J. L 323, 10 December 2009, 14); Agreement between the European Union and the Central African Republic on the status of the European Union-led forces in the Central African Republic (O.J. L 136, 24 May 2008, 46). For further information on this type of international agreements concluded by the EU see Faix, (note 3), 92-95; Aurel Sari, “Status of Forces and Status of Mission Agreements under the ESDP: the EU’s Evolving Practice“, European Journal of Internatio-nal Law (EJIL) Vol. 19 (2008), 67-100; Daniel Thym, “Die völkerrechtlichen Verträge der Europäischen Union”, ZaöRV. Vol. 66 (2006), 876.

16 For example the EU NAVFOR- Operation Atalanta participation goes beyond EU Member States, as Croatia, Montenegro, Norway and Ukraine have provided assets to the mission.

17 Exchange of Letters between the EU and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of pi-


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As an international organization, the Union is bound also by custom-ary international law18 (for example most of the rights contained in the ICCPR will fall under the category of customary international law), and in particular by the peremptory norms. Symptomatic for customary human rights obligations however is the uncertainty, which of the norms already have gained the status of customary law. Taking into consideration the very solid human rights basis provided by the EU s internal and treaty ob-ligations, it appears that customary human rights norms are not likely to play a crucial role, maybe except that they bind the EU in relation to third States and international organizations.

3.2 Internal sources of human rights obligationsThe European Union exists and functions as an international organ-

ization on the basis of its constitutional treaties – the primary law, which is besides the commitments stemming from international law a further source of Union s human rights obligations. Currently, in line with these internal rules, protection of human rights is one of declared goals. Arti-cle 3 para. 5 TEU explicitly states that the Union shall contribute to “the protection of human rights (…) as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter”. The obligation to respect human rights can be thus considered as a general principle, which is applicable also in cases when the Union acts on international scene, certainly including military crisis management operations. This can be derived from the wording of Article 21 TEU: “The Union’s action on the international scene shall be guid-ed by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democra-cy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, ..., and respect for the

racy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer (O.J. L 79, 25 March 2009, 49) and Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer (O.J. L 315, 2 December 2009, 37).

18 It might be noted that the Court of Justice of the European Union stipulated already with respect to the European Community its obligation to respect customary interna-tional law when exercising powers in external relations (Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp., C-286/90, Judgment of 24 November 1992, p. I-6019, paras. 9-10 and International Association of Independent Tanker Owners (In-tertanko) and Others, C-308/06, Judgment of 3 June 2008, para. 51).


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principles of the United Nations Charter and international law. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: … (b) consolidate and support democracy, the rule of law, human rights and the principles of international law.”

Besides the constitutional treaties the most important sources of hu-man rights obligations of the EU constitute the Charter of Fundamental Rights of the European Union19 and the European Convention of Human Rights (ECHR)20.

The European Convention of Human Rights is an international agree-ment, to which the EU is not a party yet. The accession is explicitly foreseen by Article 6 para. 2 TEU and the accession process has begun.21 However, the convention became already part of EU law as one of the sources (to-gether with the constitutional traditions common to the member states) of human rights forming part of general principles on the basis of Article 6 para. 3 TEU. Here an interesting question arises, namely whether the way of transposition of ECHR standards into Union s law influence the scope of ECHR application. In other words, can the ECHR be fully transposed to the EU context? Currently it may be assumed that by becoming a part of general principles of Union s law, the rights guaranteed under the ECHR lose their original scope of application and follow the scope application of EU law.22 As this question has not been addressed by the EU Court of Jus-tice or the European Court of Human Rights, a statement on this issue has to be awaited. Nevertheless it remains a fact that currently the ECHR is a source of human rights obligations as a matter of EU law. Once the Union will become a party to the ECHR, it will be bound by the obligations stem-ming from this treaty also as a matter of international law, producing a

19 Charter of Fundamental Rights of the European Union, O.J. C 83, 30 March 2010, 839.20 European Convention for the Protection of Human Rights and Fundamental Freedoms,

Roma, 4 November 1950.21 See Article 6 para. 2 TEU and Protocol No 5 to the Treaty of Lisbon. C.f. also Article

17 of Protocol No. 14 ECHR (13 May 2004), which inserted a new paragraph in Art. 59 ECHR stating that „[t]he European Union may accede to this Convention“. For the conti-nuing negotiations on accession see in general http://www.coe.int/t/dghl/standardset-ting/hrpolicy/Accession/default_en.asp (accessed on 10 September 2013), the text of the „Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms“, Council of Europe Doc. No 47+1(2013)008 rev 2, Appendix I, is available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1%282013%29008rev2_EN.pdf (accessed on 13 September 2013).

22 Frederik Naert, The Application of International Humanitarian Law and Human Ri-ghts Law in CSDP Operations, in Enzo Cannizzaro, Paolo Palchetti, Ramses A. Wessel, eds., International Law as Law of the European Union. Martinus Nijhoff (2011), 208.


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precedent in international law by being the first international organization becoming party to a key human rights instrument.23

The EU is furthermore bound by the Charter of Fundamental Rights, which was first proclaimed in Nice on 7 December 2000, but its legal na-ture was (deliberately) left open.24 With the Lisbon Treaty it became a part of primary EU law (Article 6 para. 1 TEU). The human rights enshrined in the Charter bind pursuant to Article 51 para. 1 not only the EU and its organs, but also the Member States in cases when they are implementing Union law. CSDP missions can be considered as falling under situations of Union s law implementation, as EU Council decisions, which form the legal basis for CMOs, are legal (although not legislative) acts under EU law.25 Hence the Member States obligations resulting from the Charter of Fundamental Rights remain applicable. Similarly the obligations of par-ticipating Member States resulting from the ECHR continue to apply in CSDP operations on the basis of Article 6 para. 3 TEU. Moreover, it is gen-erally accepted26, and with regard to the ECHR in particular27 that creation

23 Frederik Naert, Legal Framework governing the protection and promotion of human rights in EU missions – application of EU law principles and instruments, in Aurel Sari and Ramses A. Wessel, eds., Human Rights in EU crisis management operations: A duty to respect and to protect? The Hague: CLEER Working Papers 2012/6, 42.

24 Para. 2 of the Presidency Conclusions of the Nice European Council (7-9 December 2000) stipulates: „the question of the Charter s force will be considered later“.

25 See for more details on legal nature of mission related EU legal instruments (specifically in the context of the Operation Atalanta): Gert-Jan Van Hegelsom and Frederik Naert, Of Green Grass and Blue Waters: a Few Words on the Legal Instruments in the EU’s Co-unter-Piracy Operation Atalanta. Leuven: Institute for International Law K.U.Leuven, Working Paper No 149 – October 2011, available at: http://www.law.kuleuven.be/iir/eng/research/wp.html (last accessed 5 September 2013); Naert (note 21), 42.

26 C.f. especially Article 61 Circumvention of international obligations of a State member of an international organization of the Draft Articles on the Responsibility of Inter-national Organizations (ILC, Draft Report of the International Law Commission on the work of its sixty-third session, Chapter V: Responsibility of international organiza-tions, Rapporteur Rohan A. Perera, 3 June 2011, General Assembly Doc. A/CN.4/L.784/Add.2), which stipulates in para.1: “State member of an international organization in-curs international responsibility if, by taking advantage of the fact that the organiza-tion has competence in relation to the subject-matter of one of the State’s international obligations, it circumvents that obligation by causing the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation“. See also Faix, (note 3), 167 – 170; Frederik Naert, Binding International Organisations to Member State Treaties or Responsibility of Member States for Their Own Actions in the Framework of International Organisations, in Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt, eds., Accountability for Human Rights Violations by International Organisations. Antwerp: Intersentia (2010), 156-162.

27 M. & Co. v. the Federal Republic of Germany, No. 13258/87, Commission decision of 9 February 1990; Waite and Kennedy v. Germany, Judgment of 18 February 1999, ECHR


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of international organisations, a fortiori transfer of command and control over peacekeeping troops to an international organization, may not serve to States as a mean for circumventing their own international obligations. Hence in crisis management operations of the EU, which are attributable to the Union itself on the basis of command and control exercised over the EU led contingents by the respective EU organs28, not only the same substantive human rights standards, as enshrined in the Charter of Fun-damental Rights and the ECHR, are applicable, but also human rights ob-ligations of participating States continue to apply (for example ICCPR ob-ligations, which did not gain the status of customary international law yet).

Additionally as internal sources of human rights obligations in the context of military operations Council Decisions and Joint Actions, for ex-ample Operation Plan, Rules of Engagement, and a variety of implement-ing documents and decisions may be in place. However, these documents are usually not original sources of human rights obligations, but rather reflect and ensure respect for the obligations resulting from primary EU law and external sources.

Finally it might be noted that in light of the commitments resulting from the above-mentioned provisions, the EU even created a special body focusing specifically on human rights issues in the EU s external relations, the Human Rights Working Group (COHOM).29

4. Human Rights as Part of the Atalanta Legal Framework

Human rights mainstreaming in EU s Common Foreign and Security Policy is a longstanding issue30 and as a matter of policy, human rights play

Reports, 1999-I, 410, marg. 67; Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirke-ti v. Ireland, Judgment of 30 June 2005, ECHR- Reports, 2005-VI, 157 – 158, marg. 154.

28 The EU does not have currently its own standing army and the contingents deployed for crisis management operations are troops deployed by the member states (and also third countries willing to participate). Even though the sending states retain some power over their contingents, the command and control authority is transferred to the EU organs. Among them the Political and Security Committee plays a decisive role, as it exercises political control and strategic direction, sets up the chain of command and appoints the Operation Commander responsible for the military direction of the operation together with the Military Committee.

29 See the webpage of the working group: European Union, available at: http://eeas.europa.eu/human_rights/workgroup/index_en.htm.

30 See for example the following documents: Lessons and best practices of mainstrea-ming human rights and gender into CSDP military operations and civilian missions (17138/1/10 REV 1); Mainstreaming Human Rights and Gender into European Security and Defence Policy, compilation of relevant documents (2008); Mainstreaming human rights into ESDP (11936/4/06); Mainstreaming human rights across CFSP and other EU policies (10076/06).


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an important role also in CSDP missions.31 All mission-related documents, including operational planning, rules of engagement, or legal instruments must take into account standards resulting from EU s external and inter-nal human rights obligations. Particularly interesting, but also complex from the human rights perspective, is the ongoing CSDP counter-piracy operation Atalanta32.

This first maritime military crisis management operation in the his-tory of the EU was launched on the basis of a Council Joint Action from November 2008 (Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, pre-vention and repression of acts of piracy and armed robbery off the Somali coast)33, following the authorisation of States as issued by the UN Security Council in Resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1846 (2008), 1851 (2008) and 2020 (2011), to use all necessary means, including the use of military force. The Joint Action 2008/851/CFSP provides from the EU law perspective the legal basis of the operation and sets out its mandate, which includes military and police mission aspects. The operation is de-ployed, in accordance with international law (especially relevant resolu-tions of the UN Security Council and provisions of the UNCLOS), to (1) protect off the Somali coast, but also in Somalia’s territorial and internal waters vessels of the World Food Programme and merchant vessels, and (2) to arrest, detain and transfer persons who have committed acts of pi-racy or armed robbery at sea off the Somali coast.34 Atalanta is equipped with a robust mandate and the deployed troops may “take the necessary measures, including the use of force, to deter, prevent and intervene in or-der to bring to an end acts of piracy and armed robbery”.35 Furthermore, in view of prosecution, forces under the EU s command and control are

31 See for example Handbook CSDP, 2ND ed., 96 – 102, available at: http://consilium.eu-ropa.eu/media/1823176/handbook_csdp-2nd-edition_web.pdf, but in particular pub-lication Human Rights and Crisis Management – a handbook for members of CSDP missions, available at: http://formin.finland.fi/public/download.aspx?ID=68107&GUI-D={6E2746F0-13D2-433B-B261-1DE5A98681C7} .

32 See generally http://www.consilium.europa.eu/showPage.aspx?id=1518&lang=en; http://www.eunavfor.eu and http://www.mschoa.org/on-shore/home.

33 Council Joint Action 2008/851/CFSP of 10 November 2008, O.J. L 301, 12 November 2008, 33 (corrig. O.J. L 10, 15 January 2009, 35 and O.J. L 253, 25 September 2009, 18), as modified and extended by Council Decisions 2009/907/CFSP of 8 December 2009, O.J. L 322, 9 December 2009, 27; 2010/437/CFSP of 30 July 2010, O.J. L 210, 11 August 2010, 33; 2010/766/CFSP of 7 December 2010, O.J. L 327, 11 December 2010, 49, and 2012/174/CFSP of 23 March 2012, O.J.L 89, 27 March 2012, 69.

34 Article 2 of the Council Joint Action 2008/851/CFSP of 10 November 2008 (as amen-ded).

35 Ibid.


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authorised to arrest, detain and transfer persons suspected of piracy and armed robbery, seize their vessels or the vessels caught following an act of piracy or an armed robbery and which are in the hands of the pirates or armed robbers, as well as the property on board.36

It is apparent from the mission-related documents, especially the op-eration s mandate as laid down by the Joint Action 2008/851/CFSP, the EU does not intend (nor the Union aspires to acquire such competence) to prosecute pirates. The conditions for the transfer of suspected persons (pirates and armed robbers at sea) as to their prosecution are specified in detail in Article 12 of the Joint Action, stating explicitly the compliance with human rights standards as a conditio sine qua non for transfers to third States (the provision is quoted in full detail to illustrate the adherence to human rights standards and at the same time the complexity of the issue from the human rights perspective): 1. On the basis of Somalia’s acceptance of the exercise of jurisdiction by

Member States or by third States, on the one hand, and Article 105 of the United Nations Convention on the Law of the Sea, on the other hand, persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention of the Law of the Sea, to commit, com-mitting or having committed acts of piracy or armed robbery in Soma-lia’s territorial or internal waters or on the high seas, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, shall be transferred:• to the competent authorities of the Member State or of the third

State participating in the operation, of which the vessel which took them captive flies the flag, or

• if that State cannot, or does not wish to, exercise its jurisdiction, to a Member State or any third State which wishes to exercise its ju-risdiction over the aforementioned persons and property.

2. Persons suspected of intending, as referred to in Articles 101 and 103 of the United Nations Convention of the Law of the Sea, to commit, com-mitting or having committed acts of piracy or armed robbery who are arrested and detained, with a view to their prosecution, by Atalanta in the territorial waters, the internal waters or the archipelagic waters of other States in the region in agreement with these States, and property used to carry out such acts, may be transferred to the competent autho-rities of the State concerned, or, with the consent of the State concerned, to the competent authorities of another State.

3. No persons referred to in paragraphs 1 and 2 may be transferred to a

36 Ibid.


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third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.Article 12 of the Joint Action 2008/851/CFSP has led to the conclusion

of transfer agreements (such as the Exchange of Letters between the EU and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and de-tained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer)37 and arrangements with third States participating in the operation38, which shall ensure that human rights standards are respected in the conduct of the mission.

5. Human Rights Challenges

On the basis of facts presented in previous chapters it can be estab-lished that respect for human rights is emphasized by the EU as a leading principle of CSFP and CSDP operations.39 However, the applicability of

37 O.J. L 79, 25 March 2009, 49. The Agreement was terminated as from 30 September 2010, however similar documents were concluded and are in force with the Seychelles and Mauritius, see: Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Tre-atment after such Transfer (O.J. L 315, 2 December 2009, 37), and Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of sus-pected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer (O.J. L 254, 30 September 2011, 3).

38 See especially Article 3 of and the Annex to the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Ata-lanta) (O.J. L 202, 4 August 2009, 84) and Article 3 of and the Annex to the Agreement between the European Union and Montenegro on the participation of Montenegro in the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Operation Atalan-ta) (O.J. L 88, 8 April 2010, 3).

39 The relevant provisions for the Atalanta operation have been discussed in the previous chapters, as for other EU operations the EULEX Kosovo may serve as an example (al-beit not being a military operation). According to Article 3(i) of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Ko-sovo, EULEX KOSOVO (O.J. L 42, 16 February 2008, 92), EULEX Kosovo is to „ensure that all its activities respect international standards concerning human rights and gender


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human rights to CSDP operations raises difficult and complex questions, including for example the issues of extraterritorial application of human rights, impact of UN Security Council resolutions in the sense of possible derogations40, or the implications of the relationship between human rights and international humanitarian law41. Taking into account the scope of this contribution and its focus on CSDP operations, the following analysis will concentrate on the issue of extraterritorial application of human rights as one of the key issues appearing generally in multinational enforcement operations, but also some distinct EU aspects of human rights application (on the example of the CSDP operation Atalanta) shall be highlighted, as they did not gain much attention in jurisprudence and literature yet.

5.1 Extraterritorial application of human rightsCSDP crisis management operations are designed as out-of-area oper-

ations, i.e. operations conducted outside the EU. For example the Atalan-ta forces were primarily authorised to conduct operations off the Somali coasts, but the area of deployment has been extended on the basis of UN SC resolutions to Somali coastal territory, internal waters and Somali main-land42. Consequently as the operation takes place outside the EU Member States territories, the issue of extraterritorial application is of concern.

Extraterritorial application of the ECHR and human rights in general has been accepted in the jurisprudence of the International Court of Jus-tice43, regional human rights courts, as well as in the statements of the UN Human Rights Committee44, but continues to be a widely debated topic45

mainstreaming.“40 Naert (note 20), 207.41 On the relationship between the ECHR and international humanitarian law, see for

example the judgments of the European Court of Human Rights Varnava and Others v. Turkey, 18 September 2009, para. 185 and Al-Jedda v. UK, 7 July 2011, para. 107. See also Frederik Naert, International Law Aspects of the EU s Security and Defence Policy. Antwerp: Intersentia (2010), 589-641, especially 607-615; Naert (note 20), 208.

42 BBC. Somali Piracy: EU forces in first mainland raid. 15 May 2012, available at: http://www.bbc.co.uk/news/world-africa-18069685 (last accessed 13 September 2013).

43 See for example ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, paras. 111-112; ICJ, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Mea-sure, Order, 15 October 2008, ICJ Reports 2008, especially para. 109.

44 United Nations, Human Rights Committee, General Comment No. 31, para. 10.45 On this issue see for example Michal Gondek, The Reach of Human Rights in a Globali-

sing World: Extraterritorial Application of Human Rights Treaties. Antwerp: Intersentia (2009); Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy. Oxford: Oxford University Press (2011) and Kjetil Mujezinović


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in international law. Without intending to repeat the general debate, in the following rather an attempt is made to identify specific Atalanta related aspects, as these highlight the complexity of application of human rights to CSDP operations. This will be done from the ECHR perspective (albeit the problem of extraterritorial application is an issue occurring with respect to human rights treaties in general), mainly for two reasons: First, the ECHR can be considered as the key European human rights instrument, second, the question of extraterritorial application of the ECHR will become even a more burning one after EU s accession, as the European Court of Human Rights will have prima facie jurisdiction over human rights violations, which may result from the conduct of EU s military missions.

The extraterritorial scope of application of human rights instruments is primarily determined by their scope of application ratione loci and ra-tione personae.46 With regard to the ECHR, pursuant to Article 1, “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.“ There is no doubt that the ECHR may apply extraterritorially, as the European Court of Human Rights has ruled on several occasions.47 The question of to what extent such application is possible was not answered clearly yet. It can be however considered as accepted that the ECHR applies extraterritorially where a Party to the Convention exercises effective control over another territory or when it detains persons outside of its territory48.49 With re-

Larsen, The Human Rights Treaty Obligations of Peacekeepers. Cambridge: Cambridge University Press (2012).

46 Frederik Naert, International Law Aspects of the EU s Security and Defence Policy (note 39), 544.

47 See judgments of the ECtHR: Drozd and Janousek v. France and Spain, 7 July 1989, para. 91; Loizidou v. Turkey, 18 December 1996 (merits), para. 62; Cyprus v. Turkey, 10 May 2001, paras. 75-78; Bankovic and Others v. Belgium and Others, 12 December 2001, paras. 59-82; Öcalan v. Turkey, Grand Chamber, 12 May 2005, para 91; Mansur Pad and Others v. Turkey, Admisibility Decision, 28 June 2007, para. 53; Behrami and Behrami v. France, Application No. 71412/01; Saramati v. France, Germany and Norway, Appli-cation No. 78166/01; Al-Skeini and Others v. the United Kingdom, 7 July 2011, applica-tion no. 55721/07); Al-Jedda v. the UK, 7 July 2011, application no. 27021/08. See also the very useful and up-to-date factsheet of the ECtHR on extra-territorial jurisdiction of ECHR Member States, Press Unit, June 2013, available at: http://www.echr.coe.int/Documents/FS_Extra-territorial_jurisdiction_ENG.pdf (last accessed 14 September 2013).

48 For the exercise of authority and control over individuals as one of the models of extra-territorial application see for example: Milanovic, (note 45), 173 – 229.

49 To determine the intensity of control required is problematic, as inter alia national case have shown. See in this respect the well known British case Al-Skeini and others v. Secre-tary of State for Defence [2004] English and Wales High Court of Justice 2911 (Admin), 14 December 2004, but also an interesting decision of the German administrative court


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gard to counter-piracy operations at sea, such as Atalanta, the issue is even more complicated.50 First of all it is not entirely clear, if the current concept developed on basis of case by case ex-post assessment of situations can be transposed one to one to situations happening on the sea, in other words, what actually “effective control over territory” means when operating on the high seas. Second, symptomatic for such operations is involvement of dynamic enforcement actions conducted in various geographical areas (high seas, coastal and internal waters, but also the territory of a State), resulting in situations, which differ considerably, for example pursuit and boarding of pirate or hijacked ships, or transfer of a suspect to a third state for prosecution. Hence it appears that the application of the criteria of ef-fective control over territory or individuals, i.e. the extraterritorial appli-cability of human rights guaranteed under the ECHR, must be considered on case by case basis and taking into account specificities of counter-piracy operations. It is for example settled issue that where enforcement measures are carried out on board of a government or military ship (e.g. holding cap-tured pirates in custody), human rights obligations of the flag State apply.51 This is less clear in the interception phase, i.e. when the ship is pursued, stopped and boarded. Can for example be assumed that the military ship exercises effective control already when the pirate ship is in reach of its weaponry or even its operational radius? Here it has to be awaited until precise criteria determining the effective area control will be established by the responsible bodies.52 This certainly would on the one hand contrib-ute towards a coherent human rights protection in such multinational law enforcement operations, which is desirable for the purpose of achieving

in Cologne, which addressed the question of attribution and consequently Germany s responsibility for the transfer of the suspected pirates, who were captured by German Atalanta troops. The court analysed in detail the role of German administration in the transfer and ruled finally that Germany remained responsible, despite the capture and transfer having happened within the framework of the Atalanta. The judgment is available at: http://www.justiz.nrw.de/nrwe/ovgs/vg_koeln/j2011/25_K_4280_09urte-il20111111.html.

50 For an analysis of ECHR issues arising in anti-piracy operations conducted by states (i.e. not as part of multinational forces led by international organisations) see for exam-ple: Stefano Piedimonte Bodini, “Fighting Maritime Piracy under the European Conven-tion on Human Rights”, European Journal of International Law (EJIL) Vol. 22 (2011) No. 3, 829–848.

51 ECtHR, Rigopoulos v. Spain, 12 January 1999, Application No. 37388/97. As Geiss / Pet-rig point out, such assertion can be founded not only on the direct application of the flag State principle, but also by virtue of the “quasi-territoriality” of the ship, or on the basis of effective control of governmental agents onboard over the detained persons (Robin Geiss and Anna Petrig. Piracy and Armed Robbery at Sea. Oxford: Oxford University Press (2011), 104-106.

52 Geiss and Petrig (note 51), 108.


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legal certainty and to avoid the various protective gaps which derive from the “piecemeal” approach currently existing in extraterritorial application of human rights.53 On the other hand the complexity of operations (as to variety of possible situations occurring) makes a more coherent approach, as has been already stated, hardly possible.

5.2 Some Other (EU Specific) Human Rights Issues Inclusion of human rights standards into the legal framework of the

Atalanta mission, which has been described in detail above, suggests an attempt of the EU to stick to its human rights obligations as much as possi-ble. In this context, particularly interesting are transfer agreements, which the EU concluded with third states for the purpose of prosecuting persons suspected of piracy and armed robbery at sea. However, a closer look at these agreements reveals that despite certain positive development, they still might leave open some important questions.

First transfer agreement concluded in the context of Atalanta opera-tion in implementation of Article 12 of the Joint Action 2008/851/CFSP was the EU-Kenya Transfer Agreement54. Although terminated in 201055, it still deserves attention. Based on comparison of its content with the content of subsequent agreements concluded with Mauritius56 and Seychelles57 cer-tain progress can be demonstrated, which has been achieved in addressing human rights issues arising in the context of transfers of piracy suspects.

The ratio of all transfer agreements named above is identical. Accord-ing to the EU-Kenya Transfer Agreement Kenya was under obligation to “accept upon the request of EUNAVFOR, the transfer of persons detained by EUNAVFOR in connection with piracy (...) and (...) submit such persons and 53 Ibid., 114.54 O.J. L 79, 25 March 2009, p. 4955 The Agreement was terminated as from 30 September 2010.56 Agreement between the European Union and the Republic of Mauritius on the condi-

tions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer, O.J. L 254, 30 September 2011, 3.

57 Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Rob-bers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer, O.J. L 315, 2 December 2009, p. 37. It might be noted that the Exchange of Letter is applicable only on a transitional basis, pending the conclusion of a mutually acceptable transfer agreement. Despite such agreement has not been concluded yet, the EUNAVFOR has reportedly transferred in the first year of the agreement being in force more than 30 suspects to Seychelles (UN News Centre, UN Opens New Courtroom to Try Pirate Suspects in Kenyan Port, 25 June 2010, available online at: http://www.un.org/apps/news/story.asp?NewsID=35156&Cr=unodc&Cr1=#.UjNhjT9v6JA).


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property to its competent authorities for the purpose of investigation and prosecution”58, whereas transfer of such persons to third States for purpos-es of investigation and prosecution shall be possible only with a prior writ-ten consent from EUNAVFOR59. The main part of the treaties constitute human rights guarantees covering substantial and to (to certain extent) also procedural rights of transferred persons, such as prohibition of death penalty, torture, but also keeping of accurate records60 about physical con-dition and place of detention of transferred persons, whereas these records shall be available to EU or EUNAVFOR. In sum it can be argued that in all transfer agreements the post transfer period is regulated quite extensively with regard to human rights of persons transferred. With regard to the transfer and pre-transfer period there are significant differences between the EU-Kenya and EU-Mauritius Transfer Agreement. As in the EU-Kenya Agreement these aspect was barely regulated61, e.g. criteria and proceed-ings for the transfer, its implementation raised several questions, for ex-ample the one of whether transfers of suspects to Kenya are in compliance with the non-refoulement principle62, as derived from Art. 3 ECHR, Art. 19 para. 2 EU-Charter of Fundamental Rights and other relevant sources63. It has to be borne in mind that in case the transfer has taken place and the receiving State violates human rights of the transferred person, the re-sult may be an irreparable harm. The practice shows that judicial control mechanisms provided to piracy suspects on board of ships regarding their transfer varies in its form, if it exists at all.64 From this perspective the lack of remedy procedures granted to persons prior their transfer to Kenya con-stitutes a serious violation of the right to effective remedy, as enshrined, inter alia, in Art. 13 ECHR or Art. 47 EU-Charter of Fundamental Rights.

58 Art. 2(a) EU-Kenya Transfer Agreement (for more details on the agreement and issues which arose from its implementation see Geiss and Petrig (note 51), 200-204). Similar cf. Art. 3 para. 1 EU-Mauritius Transfer Agreement.

59 Art. 2(b) EU-Kenya Transfer Agreement.60 Art. 5 (c) and (d) EU-Kenya Transfer Agreement; Art. 6 EU-Mauritius Agreement. The

Exchange of Letters with Seychelles, however, is silent in this regard. 61 The EU-Kenya Transfer Agreement contains at least some procedural rules applicable

during the pre-transfer period, e.g. that the transfer must be documented (Art. 5 (a)). In contrast the EU-Seychelles Transfer Agreement contains no such provision.

62 It could be argued that the transfer has to be regarded simply as a physical handover of suspects and does not qualify as extradition in the legal sense. However, taking into account the absolute nature of non-refoulement principle it is already doubtful whether such legal technicalities are of relevance.

63 See above the chapter of this contribution identifying external and internal sources of EU human rights obligations.

64 Geiss and Petrig (note 51), 216-217.


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The EU-Mauritius Transfer Agreement brought a small step forward in protection of human rights of piracy suspects, as pursuant to its Art. 3 para. 3, “transfer shall not be carried out before the competent law en-forcement authorities of Mauritius decide within 5 working days as of the date of receipt of evidence as forwarded by EUNAVFOR that there are rea-sonable prospects of securing a conviction of persons detained by EUNAV-FOR.“ Hence compared to the EU-Kenya Transfer Agreement unnecessary transfers and possible human rights violations resulting out of it shall be prevented. However, neither this provision, nor other changes included in the EU-Mauritius Transfer Agreement address for example the key is-sues concerning application of the non-refoulement principle, as identified in the context of the EU-Kenya Transfer Agreement. There is still lack of provisions regulating pre-transfer period, especially regulations concern-ing criteria for the transfer or the judicial control of transfer decisions. Moreover, from the viewpoint of the non-refoulement principle the content of transfer agreements continues to appear problematic because the obli-gations of receiving states contained there are tantamount to diplomatic assurances, which gained much criticism as circumventing the absolute nature of non-refoulement principle.65

The above analysis, which was undertaken on the background of the tripartite typology of human rights obligations (obligation to respect, to protect and to fulfil), shows clearly that despite obviously serious efforts of the EU to comply with its human rights obligations the practice has re-vealed certain gaps, which need to be addressed for example in the course of conclusion of transfer agreements with further countries (such as Mo-zambique, South Africa or Tanzania).66 Moreover the implementation of Atalanta operation has shown that proclamations, such as the one of the Council of the European Union that transfers may be carried out in a “manner consistent with relevant international law, notably international law on human rights“, are insufficient without serious efforts to implement such commitments properly in the legal framework of the operation and

65 Criticism emanated for example from the UN Human Rights Council (see the Report of the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Tre-atment or Punishment, UN Doc A/HRC/13/39 from 9 February 2010, p. 18, para. 67), or the European Court of Human Rights Judgments (Saadi v. Italy, Application No. 37201/06, Judgment of 28 February 2009; Ismoilov v. Russia, Application No. 2947/06, Judgment of 24 April 2008; Ryabikin v. Russia, Application No. 8320/04, Judgment of 19 June 2008).

66 The conclusion of transfer agreements with these countries is envisaged, see: Council of the European Union, Press Release, Foreign Affairs, 3005th Council Meeting, 7828/1/10 REV 1, 22 March 2010, available at:

http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/113482.pdf.


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creation of respective control mechanisms. Certainly, this might constitute an uneasy task to find a solution respecting both, Union s international (human rights) obligations and the quest for effectiveness in achieving op-eration goals. Nevertheless, the EU simply has to find solutions if it wants to be a credible global protector of human rights.

6. Conclusion

The analysis provided in this contribution is not exhaustive, but at-tempted to be conclusive in showing that even there is no doubt about the fact that human rights constitute and must constitute an imperative part of EU s multinational military operations legal framework, their application in practice remains controversial and complex issue, which calls for more coherence. This is a task for theory, judiciary but also for the EU itself, which currently may conduct a wide range of crisis management opera-tions, including peace enforcement missions.

The EU has at its disposal means enabling it to implement its human rights obligations stemming from external (customary human rights law, the ECHR after EU s accession, agreements concluded with third states) and internal sources (ECHR, EU Charter of Fundamental Rights and a variety of mission specific documents). As the operation Atalanta and documents constituting its legal framework show, the EU makes serious efforts to obey these obligations. On the other hand the practice of op-erations continues to raise general issues of human rights application in multinational operations, such as the issue of extraterritorial application. Besides the problems arising generally in the context of multinational mis-sions, analysis of relevant documents has revealed also problems occurring specifically in the context of Atalanta counter-piracy operation, such as shortcomings of transfer agreements concluded by the EU. It is needless to say that the EU should address the identified problems simply for the sake of fulfilment of its human rights obligations, but it needs to be underlined that the Union has to do so in a way which would contribute towards more coherency in human rights protection, as lack of coherence in application of human rights standards may result, among others, in reluctance of par-ticipating soldier to act because of fear to become a human rights perpe-trator or even worse, in it may result in situations materializing human rights violations. Both cases are not desirable. Moreover, coherence would contribute towards the declared attempt of the Union to become a credible global human rights protector.

Finally it might be noted that one may certainly argue that ensuring full application of human rights in multinational military operations cre-


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ates a hindrance for their effectiveness, especially when taking into regard the lack of consensus on human rights interpretation and various other heavily discussed implementation issues. However it remains a fact that the obligations included in human rights treaties and customary interna-tional law do not cease to bind all the actors involved, including the EU and its Member States. The necessity of adherence to human rights by the EU in its military crisis operations is given not only because separate legal personality of international organizations in international law should not allow states from escaping from their human rights obligations, or because the internal legal order of the EU stipulates so. A far more important argu-ment applicable regardless the specific ways through which the one or an-other international organization is bound to human rights in its military missions is the very nature of human rights – formally as an indispensable standard of erga omnes, or even jus cogens character, materially as reflec-tion of what a person is inherently entitled to simply because he or she is a human being.

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