Human Rights Accountability of CSDP Missions on Migration

(Originally published on the EU Migration and Asylum Law and Policy blog.)

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Respect for human rights and the rule of law are among the European Union’s foundational values proclaimed in TEU article 2. The Lisbon treaty’s merging of the EU’s three pillars, together with the elevation of the European Charter of Fundamental Rights to the level of primary law, ensured a sufficient level of substantive human rights protection across all the Union’s activities. However, the right to an effective remedy – enshrined in Article 47 of the Charter , as well as in regional and global human rights treaties – requires available and effective procedural mechanisms for holding human rights violators to account. When it comes to the availability and functioning of such mechanisms, which I will refer to as accountability mechanisms, there is less uniformity and significant gaps.

These gaps are increasingly becoming visible in the area of immigration and asylum, where the powers of the Union and its agencies have been rapidly expanding over the last few years, in response to the so-called “migration crisis” of 2015. In a post on this blog written back in April, Melanie Fink highlighted the lack of access to human rights accountability mechanisms in relation to Frontex.

The EU response also included the establishment of a military Common Foreign and Security Policy (CSDP) mission, Operation Sophia, to combat human smuggling and trafficking. At the outset, Operation Sophia consisted of one aircraft carrier, supported by six ships and two submarines, and additional units were deployed in subsequent phases. With a mandate that allowed for the “boarding, search, seizure and diversion” of vessels suspected of being used for human smuggling and trafficking, not much imagination is needed to see that there are risks of human rights violations.

Union responsibility for CSDP missions

CSDP missions form part of the EU’s Common Foreign and Security Policy (CFSP). While the Lisbon Treaty merged the former three pillars into one Union, the CFSP remains a markedly intergovernmental part of an increasingly supranational Union. Still, acts under the CFSP heading remain Union acts. Horizontal rules of EU law – such as the Charter of Fundamental Rights – therefore also apply to the CFSP, and thus to CSDP missions. Since the Union does not have its own military forces, CSDP missions are made up by contingents of units provided by the Member States. These units are put under the joint command of an Operations Commander. Up the chain of command from the Operations Commander, we find first the Council’s Political and Security Committee, and at the very top the Council itself.

From a legal perspective there are two key challenges for establishing that the Union is responsible, as a matter of substantive law, for human rights violations by CSDP missions:

  • First, whether the conduct that is alleged to represent a human rights violation is attributable to the Union.
  • Second, whether the conduct attributable to the Union constitutes a violation of a provision of its human rights law obligations.

The issue of attribution is particularly problematic with regard to CSDP missions, such as NAVFOR Operation Sophia. While the Operations Commander of the mission exercises what is in military parlance known as “operational command and control”, the Member States retain a certain degree of control over their troops. At the very least they retain the right to withdraw them at any time, as well as disciplinary jurisdiction. But contributing Member States often insist on, and are granted, even further “caveats” – for example the right to refuse to carry out individual orders from the Operations Commander. Untangling exactly which actor is responsible for a particular act or omission – the Union or/and (one or more) of its Member States – can therefore be very difficult. Yet, there are situations where the conduct of participating military contingents could be attributable to the Union, and the Union will also often share responsibility with (one or more) of its Member States through its complicity.

The second issue, establishing whether a course of conduct attributable to the Union constitutes a violation of its human rights obligations, is comparatively easier. The Charter of Fundamental Rights contains a modern catalog of human rights provisions that are also applicable to the conduct of CSDP missions. In contrast to most other international organizations, the Union in other words offers a high level of human rights protection as a matter of substantive law.

Accountability mechanisms

The question then is whether the high level of substantive human rights protection is matched by sufficient accountability mechanisms. It is particularly when answering this question that we see how the CFSP – and thus CSDP missions – is “subject to specific rules and procedures” (TEU article 24, emphasis added).

Since the object is the accountability of the Union as such – and not that of its Member States – the first obvious potential mechanism is the Court of Justice of the European Union (CJEU). However, while the CJEU’s now has a general jurisdiction to “ensure […] that the law is observed”, it follows from TFEU article 275 that it “shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions”. There are some exceptions to this CFSP carve-out, notably that the Court is competent to monitor compliance with TEU article 40 and to review “restrictive measures against natural or legal persons”. But none of these exceptions  are applicable to CSDP missions. Indeed, the operational conduct of CSDP missions is at the very core of the CFSP. If the carve-out provision is to have any meaning, the CJEU must therefore lack jurisdiction over such operational conduct. Individual victims consequently lack access to the CJEU.

A second potential accountability mechanism at the Union level is the European Ombudsman. Its jurisdiction ratione materiae in principle covers the entirety of the Union’s activities – including those of CSDP missions. Its jurisdiction ratione personae also seems broad, as it extends to complaints from all EU citizens and residents. However, note that this in practice excludes all those who are likely to be victims of human rights violations by CSDP missions: non-EU citizens that do not have their residence in the EU. This is particularly true in cases where CSDP missions are used to enforce migration policy, as was the case with Operation Sophia.

Interestingly, though, the lack of jurisdiction ratione personae does not render the Ombudsman completely ineffective. That is because in addition to receiving complaints, the Ombudsman can also open own-initiative inquiries. The Ombudsman has used this tool to circumvent the restrictions on its complaints-based jurisdiction. In cases where it has been considered appropriate, the Ombudsman has formally dismissed the complaint for lack of jurisdiction ratione personae and then immediately opened an own-initiative inquiry into the same facts. The European Ombudsman thus functions, indirectly and informally, as an accountability mechanism for CSDP missions.

Access is not alone enough to render the Ombudsman a sufficient accountability mechanism, though. Even when it acts as an accountability mechanism, the aggrieved individuals are not given party status, since the procedure is formally that of an own-initiative inquiry. Moreover, the findings of the Ombudsman are not binding. Although the Ombudsman as had a strong track-record in getting Union bodies and agencies to comply – even in CFSP matters – an unbinding decision is not fully compliant with the right to an effective remedy.

A third option for aggrieved individuals seeking to hold the Union to account is to sue it in domestic courts. While domestic lawsuits against international organisations are usually a hopeless endeavor due to the jurisdictional immunity, that is not the case when it comes to Union-led CSDP missions. That is because TFEU article 274 provides that, for cases falling outside the scope of the CJEU’s jurisdiction, “disputes to which the Union is a party shall not […] be excluded from the jurisdiction of the courts or tribunals of the Member States”. As mentioned above, the CJEU lacks jurisdiction in cases where CSDP missions are alleged to have caused human rights violations. However, even if the Union does not have jurisdictional immunity in these cases, further obstacles in practice render domestic courts ineffective as accountability mechanisms. As the pre-Brexit judgment by the UK High Court of Justice in the case of Tomanović et al. v. the European Union et al.  illustrates, domestic courts tend to be weary of deciding cases involving international organisations. Moreover, even if all procedural hurdles are surmounted, the outcomes of domestic proceedings are only binding as a matter of domestic law in one Member State, and they are in practice unenforceable since the Union has immunity against the enforcement of judgments against it. With the Union thus in principle being free to ignore their judgments, recourse to the domestic courts of EU Member States cannot be regarded as a sufficiently effective accountability mechanism.

In addition to these general accountability mechanisms, some CSDP missions have established mission-specific accountability mechanisms. For those missions that have Status of Forces Agreements (meaning agreements with third states on the status of the mission, jurisdiction, immunities, etc.), an ad hoc claims procedure is usually established by the agreement. The procedure typically consists of negotiations, followed by assessment by a claims commission composed of representatives of the mission and the host state, and finally, if there is still no agreement, arbitration proceedings. However, various procedural limitations render them ineffective as human rights accountability mechanisms. Moreover, some missions, such as Operation Sophia, operate without any Status of Forces Agreements.

Another, and exceptional, example is the Human Rights Review Panel established to hold EULEX Kosovo to account. This is, to my knowledge, the only intentionally established human rights accountability mechanism with jurisdiction over a CSDP mission. While there is much good to say about the Human Rights Review Panel and its case-law, its main weakness is that it lacks the power to issue legally binding decisions. Thus, even the Human Rights Review Panel fails to fulfill all the requirements flowing from the right to an  effective remedy.

As this brief survey reveals, the human rights accountability of CSDP missions is lacking. The right to an effective remedy is not respected. Potential accountability mechanisms are either unavailable or offer insufficient outcomes.

Potential solutions

Reform of the accountability mechanisms applicable to CSDP missions is therefore needed. Such reform should happen by establishing mechanisms at the Union (or international) level because domestic courts are unable to provide an effective remedy, for the reasons explained above.

A potential first step towards reform could be to replicate EULEX Kosovo’s Human Rights Review Panel in other CSDP missions. While this will not by itself ensure sufficient human rights accountability, it is a step that can be taken easily, without e.g. amending the constituent treaties of the Union. Potential further steps could include expanding the jurisdiction of the CJEU, and the accession of the Union to the European Convention on Human Rights.

Finally, one has to highlight the potential that lies in the existing accountability mechanisms. Very few have taken advantage of the European Ombudsman’s extensive jurisdiction, and there is only one known example of a domestic court case against the Union involving the conduct of a CSDP mission, namely the above-mentioned case of Tomanovic v. The European Union. While these accountability mechanisms are by no means perfect, they do appear to be under-utilised. Hopefully, both this post and my book will make lawyers more aware of them and their potential.