Sari & Wessel: International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime

Aurel Sari (Univ. of Exeter - Law) & Ramses A. Wessel (Univ. of Twente - Law) have posted International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime. Here's the abstract:

The Lisbon Treaty has reconfirmed the EU’s intention to advance its interests and values on the international scene in a more proactive manner, including through the conduct of crisis management missions in third countries as part of its Common Foreign and Security Policy (CFSP). Although most missions launched by the Union so far have been relatively modest in their size and objectives, even small-scale operations may give rise to a breach of international law or cause damage and injury to private parties. Yet holding EU missions accountable for their activities is hampered by a range of legal and practical difficulties. One particularly thorny issue concerns the attribution of the wrongful acts committed by EU military operations: since they are composed of personnel made available to the Union by its Member States and third States, it is not immediately obvious which party—the EU, the contributing States or both—should bear responsibility for their conduct. This question is of great practical significance, for accountability cannot be discharged effectively if it is unclear where responsibility lies. The purpose of this chapter is to revisit this issue and establish what rules govern the attribution of wrongful acts committed by EU military operations.

We begin our analysis by noting that no special considerations justify the application of lex specialis rules of attribution to EU crisis management missions. While this means that such missions are subject to the general rules of attribution laid down in the International Law Comission's (ILC) Draft Articles on the Responsibility of International Organizations (DARIO), we argue that the way in which the ILC purports to apply these rules to peacekeeping operations is too narrow. Contrary to the approach adopted by the ILC, any attempt to establish where responsibility lies for the wrongful conduct of EU missions must first of all clarify their position within the legal order of the EU. To this end, we assess the legal framework and practice of EU military operations in order to establish whether they constitute either de jure or de facto organs of the Union. Based on this analysis, we submit that to be able to contribute to the governance of global security the EU should accept that the wrongful conduct of its crisis management missions are, in principle, attributable to it and seize the opportunity to contribute to the development of the law of international responsibility in this area.