Katholieke Universiteit Leuven Faculty of Law

Institute for International Law

Working Paper No 108 - May 2007

Background paper on EU crisis management operations

Tom Ruys

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The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organizations at the Faculty of Law of the University of Leuven. The Institute also organizes colloquia, seminars, workshops and lectures which bring current issues of international law to the fore. Since the spring of 2007, the Institute participates in the Leuven Centre for Global Governance Studies. This interdisciplinary research centre of the Humanities and Social Sciences carries out and supports interdisciplinary research on topics related to globalization, governance processes and multilateralism, with a particular focus on the following areas, taking the many cross-cutting issues into account: (i) trade and sustainable development, (ii) peace and security, (iii) human rights, democracy and rule of law, and (iv) the European Union and global multilateral governance. The working paper series, started in 2001, aims at a broader dissemination of the results of the research of the Institute and of other researchers in the academic community and in society. It contains contributions in Dutch, in English and in French. Reference may be made to these working papers with proper citation of source. For more information and a complete list of available working papers, please visit the website of the Institute for International Law on www.internationallaw.eu and the website of the Leuven Centre for Global Governance Studies on www.globalgovernancestudies.eu © Instituut voor Internationaal Recht, K.U. Leuven, 2001-2008

Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel. +32 16 32 51 22 Fax +32 16 32 54 64 Prof. Dr. Jan Wouters, Professor of International Law and International Organizations; Director, Leuven Centre for Global Governance Studies and Institute for International Law, K.U.Leuven

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http://www.internationallaw.eu/http://www.globalgovernancestudies.eu/

Background paper on EU Crisis

Management Operations

Tom Ruys ∗

May 2007

Introduction

The present document was prepared as a background paper for Working Group I on

peacekeeping and peace enforcement of the COST A 28 project, an international

academic programme in which the Leuven Institute for International Law participates

together with 15 other academic institutes from 12 European countries.1 By the end of

2008, the Working Group intends to publish a comprehensive report on EU crisis

management operations, addressing a range of issues, including individual and

institutional accountability, rules of engagement, decision-making, et cetera.

This paper addresses three distinct yet inter-related aspects of EU crisis management

operations, notably: the decision-making process for ESDP operations; UN-EU

cooperation, and; EU-NATO cooperation. Each of the three parts begins with a

rather descriptive overview of the respective topics, while ending with a more critical

assessment, including possible suggestions for improvement.

∗ Doctoral Fellow of the Fund for Scientific Research Flanders, Institute for International Law, Leuven University. 1 For further information on COST Action A 28 and the participating institutions, see http://www2.law.uu.nl/english/sim/costaction28/index.html

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Table of Contents 1. The Decision-making process for ESDP operations………………………………..5

a. The role of the main EU bodies……………………………………………..5 b. Bodies under the authority of the Council…………………………………13 c. Structures and departments under the Council General Secretariat……….18 d. Different phases in the decision-making process………………………….23 e. Evaluation………………………………………………………………….27

2. UN-EU Cooperation……………………………………………………………….37 a. Development of the UN-EU crisis management partnership.......................37 b. Some reflections…………………………………………………………...46 3. EU-NATO Cooperation…………………………………………………………...53 a. Development of the EU-NATO strategic partnership……………………..53 b. Assessment of the EU-NATO partnership………………………………...64

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1.) The Decision-making process for ESDP Operations

a. The role of the main EU bodies The creation of military and civilian missions by the European Union is regulated by

Title V of the Consolidated Treaty on European Union (CTEU),2 which contains the

provisions on a Common Foreign and Security Policy (CFSP; i.e., the second pillar).

As Article 11 CTEU states: “the Union shall define and implement a common foreign

and security policy covering all areas of foreign and security policy”. Article 11

consequently enumerates various CFSP objectives, such as the strengthening of the

Union’s security and international security, as well as the promotion of international

cooperation. To pursue these objectives, the EU mainly disposes of three ‘legal’

instruments regulated by the Treaty: common strategies, joint actions and common

positions (Articles 12-15 CTEU). Additional ‘non-legal’ instruments, such as public

declarations or confidential demarches are available where appropriate.

More specifically, the legal basis for EU missions is found in Article 17 CTEU,

which establishes the European Security and Defence Policy (ESDP) as an integral

part of the CFSP.3 According to Article 17 § 1, the CFSP “shall include all questions

relating to the security of the Union, including the progressive framing of a common

defence policy, which might lead to a common defence, should the European Council

so decide.” However, as defence cooperation is currently in an embryonic stage (save,

perhaps, for the creation of the European Defence Agency), the core of the ESDP is at

present found in Article 17 § 2, which incorporates the Petersberg tasks in the scope

of the ESDP, thus allowing for the creation of ESDP crisis management operations.

As an integral part of the intergovernmental second pillar, the ESDP is essentially a

Council-driven policy. Thus, as the EU’s highest political body, the European

2 Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community, (2006) O.J. C-321/E, 1. 3 The Draft Constitution for Europe adopts the wording ‘Common Security and Defence Policy’. See Treaty establishing a Constitution for Europea, (2004) O.J. C-310/E, 1, Article I-41. The same denomination was used in the early stages of the ESDP (see for example the heading of the Laeken Declaration), but the term ‘common’ was later dropped to avoid political misunderstandings and to stress the intergovernmental character of the ESDP.

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Council defines the principles and general guidelines for the CFSP as well as

common strategies to be implemented in areas where the Member States have

important interests in common (Article 13 §§1-2 CTEU). Some key political decisions

on the ESDP will also be made at the level of the European Council, for example

when they entail first- or even third-pillar measures – which lie in the competence of

the EU Finance or Justice and Home Affairs Ministers.4

The lion’s share of CFSP decision-making, however, occurs one step down the ladder,

namely by the Council. The latter organ is responsible for implementing the CFSP on

the basis of the general guidelines defined by the European Council. To this end, it

will recommend common strategies to the European Council and implement them, in

particular by adopting common positions and joint actions (Article 13, §§ 3 CTEU).

The latter instruments address “specific situations where operational action by the

Union is deemed to be required.”5 It is thus by means of a Council Joint Action that

ESDP operations are eventually brought into being.

The appropriate configuration for the Council to convene on CFSP/ESDP matters is

the General Affairs and External Relations Council (GAERC), which brings

together the Member States’ Foreign Affairs Ministers.6 While the European Council

in principle only meets twice during each six-month Presidency, the GAERC meets

once a month. Since July 2002, the GAERC holds separate sessions on ‘General

Affairs’ and ‘External Relations’. CFSP matters are addressed in the latter sessions.

Depending on the items on the agenda, GAERC meetings will also be attended by the

Ministers responsible for European Affairs, Development or Trade. The Defence

Ministers traditionally participate in GAERC meetings twice a year, in addition to

their informal meetings in the margins of the GAERC (also twice a year). To date, no

dedicated Council configuration exists for the Member States’ Ministers of Defence.

In view of the “progressive framing of a common defence policy” (Article 17 § 1

CTEU) and the crisis management capability build-up, which is designed to “take on

4 A. Missiroli, ‘ESDP – How it works’, in N. Gnesotto (ed.), EU Security and Defence Policy – the first five years (1999-2004), EU-ISS Chaillot Paper, August 2004, available at http://www.iss-eu.org/books/5esdpen.pdf, pp. 55-72, at 59. 5 Article 14 § 1 CTEU. The Article further states that the joint actions “will lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.”. 6 For an overview, see http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=388&lang=en.

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progressively more demanding operations”,7 this situation seems untenable in the

long run.

The provisional agenda of the Council is divided into two parts: ‘Part A’, which

contains items where there is already agreement at lower preparatory levels, often

allowing for decisions to be made without further discussion, and; ‘Part B’, which

lists the items that require further discussion and negotiation between the Ministers.

Nevertheless, before an item ends up on the Council agenda it will have gone through

a whole series of preparatory meetings by various committees and working groups.

The final stage in this procédé occurs when the item is examined by the Committee

of Permanent Representatives (COREPER). In line with Article 207 CTEU, all

items on the agenda of a Council meeting shall be examined in advance by

COREPER unless the Council decides otherwise. COREPER consists of Permanent

Representatives of the Member States at ambassador level and aims at assuring

coordination between the policies of the Member States as well as of the Council

itself.8 Thus, the ambassadors may assess and balance national interests, strike deals

and make concessions before a matter is actually forwarded to the Council. As is the

case in the Council, COREPER’s agenda is divided into two parts: issues already

agreed at ‘lower’ level preparatory bodies, which end up on ‘Part A’ of the Council

agenda, and; issues where further discussion is needed (these may be transferred to

‘Part A’ or ‘Part B’ of the Council agenda depending on whether further discussion is

successful).9 COREPER thus plays an important role in preparing GAERC meetings.

Decisions that can be taken unanimously are in fact often ‘fixed’ at this level. When

dealing with more technical subjects, COREPER will be composed of assistant

permanent representatives (COREPER I). Issues of political, commercial, economical

or institutional character will be addressed by the permanent representatives

themselves (COREPER II).10

7 See Declaration on the operational capability of the Common European Security and Defence Policy, Annex II to the Presidency Conclusions, Laeken, 14-15 December 2001, SN 300/1/01 REV 1. 8 Ambassador Dirk Wouters, ‘CFSP and ESDP: institutional aspects, results and challenges’, lecture given at the law faculty of the University of Leuven, text on file with the author. 9 Ibid. 10 The work of COREPER I is prepared by the so-called Mertens group; the work of COREPER II is prepared by the Antici group.

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Apart from COREPER, several other bodies exist at a ‘lower’ level under Council

auspices, which deal specifically with ESDP matters (in contrast with the much

broader mandate of COREPER). These bodies will be discussed in the next section.

For now, it suffices to note that the GAERC is the key decision-making body for

ESDP operations and that its voting procedure (Article 23(1) CTEU) clearly reflects

the intergovernmental character of the CFSP/ESDP. Indeed, CFSP decisions generally

require unanimity among Member States.11 Only in a limited number of cases can the

Council act by qualified majority: when adopting decisions, such as joint actions, on

the basis of a common strategy; when adopting a decision implementing a joint action

or a common position, or; when appointing a Special Representative. Even here,

unanimity will be required when the relevant decision has military or defence

implications. Moreover, a Member State may declare that for “important and stated

reasons of national policy” it intends to oppose the adoption of a decision to be taken

by qualified majority. In this case, no vote shall be taken. The general need for

unanimity is nevertheless mitigated by the ‘qualified abstention’-formula. According

to this mechanism, a Member State abstaining from voting may make a formal

declaration, as a result of which it will not have to apply a CFSP decision or have to

pay for it, but by which it nevertheless accepts that the decision ‘commits the

Union’.12 In all, it is clear that States are reluctant to relinquish the unanimity rule in

these matters, as the ESDP touches upon the very core of the sovereignty prerogative.

It is unrealistic to expect this to change: the ‘qualified abstention’-formula seems to

be the maximum extent to which Member States are willing to stretch the unanimity

rule. In practice, the fact that States may decide not to take part in an ESDP decision

seems to allow for sufficient flexibility. It must moreover be noted that, so far, no

formal vetoes or qualified abstentions have ever been used.13

When discussing the role of the GAERC as the decision-making body on CFSP

matters, one should not loose sight of the importance of two related ‘institutions’. The

first is the EU Presidency, which plays a pivotal role in launching initiatives and

11 Remark: Procedural questions can be decided by a simple majority of Member States (Article 23(1) §3 CTEU). 12 Article 23(1) § 1 CTEU. Qualified abstention only blocks a decision if the number of Member States who choose it amount to more than 1/3 of the weighted votes in the Council. Remark: Denmark has moreover obtained exemption from all defence-related obligations. Only if it chooses to ‘opt-in’, will it be bound by such obligations. 13 Interview with EU Officials and national representative, Brussels, September 2006 and April 2007.

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taking the EU forward. The second is the Council General Secretariat, headed by the

Secretary-General (who is also High Representative for the CFSP; SG/HR) and the

Deputy Secretary-General, which plays a crucial supporting role for the Council’s

work.

Firstly, while all Member States may take the initiative for certain ESDP actions, it is

the six-monthly rotating Presidency that is in the driving seat for policy initiatives.

According to Article 18 CTEU, the Presidency shall represent the EU in matters

coming within the CFSP and shall in principle express the EU position in

international fora. The Presidency is furthermore responsible for the implementation

of decisions taken within the CFSP. More specifically, in ESDP matters, the

Presidency is expected to take the work of the EU forward. To this end, it may

identify certain priorities. It will organize the meetings of various committees and

working parties; set their agendas, and; ensure that discussions are conducted in a

businesslike manner.14 At the end of its term, the Presidency will submit a Presidency

Report on ESDP to the European Council for approval.15 This report provides an

overview of what has been accomplished, not only in terms of operational activities or

capability build-up, but also in relation to the functioning of ESDP bodies, strategic

orientation, cooperation with other organizations, training, human rights promotion, et

cetera. The final section of the report, ‘Mandate for the incoming Presidency’, lists

suggestions for the succeeding EU Member State, ‘asking’ or ‘inviting’ it to carry

work forward in this or that area.

The Council General Secretariat (CGS), headed by the SG/HR, will assist the

Presidency in its work. In particular, in CFSP matters the SG/HR contributes to the

formulation, preparation and implementation of policy decisions. The SG/HR will

also conduct political dialogue with third parties on behalf of the Council, when asked

to do so by the Presidency (Article 26 CTEU). The CGS’ role has evolved

significantly over time.16 In the beginning it merely assumed the role of a secretariat:

before, during and after meetings, it helped prepare agendas and reports; it collected

and circulated information, statements and proposals; coordinated the attendance of

meetings; provided infrastructure, and so on. Today, these traditional secretariat 14 See D. Wouters, loc. cit., supra n. 8. 15 See for example, Presidency Report on ESDP, approved by the Council on 12 June 2006, Doc. 10418/06, available at http://register.consilium.europa.eu/pdf/en/06/st10/st10418.en06.pdf. 16 See D. Wouters, loc. cit., supra n. 8.

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functions are still present (mainly under the supervision of the Deputy-Secretary-

General), but have been supplemented by a range of broader tasks. Thus, the CGS has

grown into a body that inter alia offers policy advice, ensures the continuity of work

between successive Presidencies and formulates compromise proposals at request.

Given the short duration of each Presidency and the fluctuating strength thereof, the

CGS’ expertise has made it an indispensable ‘institutional memory’ for the ESDP that

briefs, advises and serves the Presidency at all levels.17 At the same time, the SG/HR

has come to play a stimulating role in the development of the ESDP. He has not shied

away from taking initiatives in ESDP policy formulation (for example by drafting the

European Security Strategy (2003))18. By expressing common EU positions on CFSP

matters in public fora, he has moreover become the porte-parole for the CFSP in the

media. In all, one might say that although the CGS is not an autonomous ESDP actor,

it is an ESDP actor nonetheless. We will later come back to the CGS structures that

deal specifically with ESDP matters.

Before turning to the internal decision-making process leading to the launching of an

EU operation, some light should be shed on the respective roles of two other EU

organs, namely the European Parliament and the European Commission. According

to Article 21 CTEU, the European Parliament’s powers in relation to the CFSP are

very limited. The EP will be consulted on the main aspects of the CFSP by the

Presidency, which will see to it that the EP’s views, expressed in annual reports,

opinion or recommendations, are taken into consideration. The Presidency and the

Commission are furthermore required to keep the EP regularly informed of the

development of the CFSP. The EP can ask questions to the Council or may make

recommendations to it, and will hold an annual debate on the progress in

implementing the CFSP. These provisions make clear that while the European

Parliament has access to information on the ESDP, it has no direct part in the

decision-making process, except as far as its budgetary powers viz. crisis management

operations financed through the Community budget are concerned. This is generally

the opposite of what is true at the national level. Indeed, in principle national

parliaments of EU Member States have the competence to scrutinize national security

17 Ibid. 18 ‘A Secure Europe in a Better World’ - a European Security Strategy, adopted by the European Council on 12 December 2003, available at http://www.consilium.eu.int/uedocs/cmsUpload/78367.pdf.

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and defence policies, even when exercised within the ESDP framework, but they lack

to a great extent the information and expertise necessary to carry out this task

effectively.19 As a result, the effective democratic control of ESDP risks falling

between the two stools of the European Parliament and national parliaments. The

Assembly of the Western European Union, which brings together national

parliamentarians from 39 European countries, has tried to present itself as the

alternative option and has changed its name to the ‘Interparliamentary European

Security and Defence Assembly’.20 However, despite its experience in monitoring

EDSP and despite its broad membership, the WEU Assembly also suffers from a

number of shortcomings. While it offers a forum for debating ESDP issues, it has no

formal powers. Moreover, it is increasingly perceived as an odd left-over from the

transfer of WEU functions to the EU.21 As an additional parliamentary body, the

WEU Assembly – which the EP tends to see as a competitor rather than a collaborator

– indeed adds further complexity to the institutional system of the EU.22 Further steps

are needed to fill the parliamentary grey area and to strengthen the legitimacy of the

ESDP. Given the fact that an ‘upgrade’ of the formal competence of the European

Parliament in CFSP matters seems out of reach, a pragmatic solution would be to hold

regular joint sessions of national parliamentary representatives and Members of the

EP.23 Such practice would build on the existing interparliamentary cooperation on

first-pillar issues. In the ESDP context, however, these sessions should bring together

members of the standing committees for defence and foreign affairs as well as

members of the EP Foreign Affairs Committee and the EP Subcommittee on Security

and Defence. So far, this instrument has hardly been used in foreign, security and

defence policy.24 Nevertheless, these sessions would allow for exchange of

information and would enable national parliamentarians to directly address EU

19 C. Gourlay, ‘Parliamentary oversight of ESDP: the role of the European Parliament and national parliaments’, DCAF Conference Paper, July 2002, available at http://www.dcaf.ch/pcaf/ev_brussels_020712_catriona.pdf, at 2. 20 For a brief overview, see the WEU Assembly Brochure, available at http://www.assembly-weu.org/en/presentation/brochure.php. 21 A. Missiroli, loc. cit., supra n. 4, at 71-72. 22 W. Wagner, ‘The democratic legitimacy of European Security and Defence Policy’, EU ISS Occasional Paper 57, April 2005, available at http://www.iss-eu.org/occasion/occ57.pdf, at 21-23. See also G. Bono, ‘The European Union as an international security actor: challenges for democratic accountability’, in H. Born and H. Hänggi, The ‘double democratic deficit’: parliamentary accountability and the use of force under international auspices (Aldershot: Ashgate) (2004), pp. 163-181. 23 See A. Missiroli, loc. cit., supra n. 4, at 71-72; C. Gourlay, loc. cit., supra n. 19, at 11-12. 24 W. Wagner, loc. cit., supra n. 22, at 24.

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officials. They could facilitate national oversight of the ESDP, thereby strengthening

democratic accountability of the ESDP.

Last but not least, Article 18 § 4 CTEU states that the European Commission shall

be ‘fully associated’ with the work carried out under the CFSP. In this capacity, the

European Commission is represented at all levels in the CFSP decision-making

structures, from Troika meetings to meetings of the GAERC or its preparatory bodies,

such as the Political Security Committee and the various working groups. The

presence of the European Commission was not always self-evident in the past. As

regards the EU Military Committee, for example, it took a great effort to overcome

the reluctance of Member States to have the Commission participate in formal

meetings of this body.25 The Commission may refer to the Council any question

relating to the CFSP and may submit proposals to the Council. It thus has the same

right of initiative as a Member State (Article 22 CTEU). Furthermore, the

Commission can request the Presidency to convene an extraordinary Council meeting

in cases requiring a rapid decision. The Council may also request the Commission to

submit to it any appropriate proposals to ensure the implementation of a joint action

(Article 14 § 4 CTEU). It is obvious that these powers are much more limited than the

Commission’s competences under the (first) Community pillar. In the latter matters,

the Commission not only enjoys the exclusive right of initiative, but is also the regular

forum for the implementation of Council decisions. In CFSP and especially in ESDP

matters, however, the Commission is at best a subsidiary actor. On the other hand, it

must be conceded that the Commission’s influence in CFSP is mounting gradually.26

In particular, the Commission’s competence in managing the Community budget

provides it with important leverage in relation to civil ESDP operations.27

25 Interview with EU Official, September 2006. 26 S. Duke, ‘The Commission and the CFSP’, EIPA Working Paper 2006/W/01, February 2006, available at http://www.eipa.eu/files/repository/product/CFSP_0601e.pdf. 27 An examination of the financing of ESDP operations falls beyond the scope of the present paper. For a brief overview of CFSP funding, see European Commission, ‘CFSP funding’, available at http://ec.europa.eu/comm/external_relations/cfsp/fin/index.htm; EU Council Secretariat Factsheet, ‘Financing of ESDP Operation’, June 2006, available at http://consilium.europa.eu/uedocs/cmsUpload/Factsheet_Financing2.pdf. See also European Commission, ‘Communication to the Council and the European Parliament: Financing of Civilian Crisis Management Operations’, Brussels 28 November 2001, Doc. COM(2001)647final; A. Missiroli, Euros for ESDP: financing EU operations, EU-ISS, Occasional Paper N° 45, June 2003, available at http://www.iss-eu.org/occasion/occ45.pdf, 53 p.

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In CFSP matters, the European Commission is primarily represented by the

Directorate-General for External Relations (DG Relex). DG Relex was created

following the Amsterdam Treaty and is charged with the planning and policy aspects

of Community external relations. It coordinates the Commission’s external relations

policy in order to guarantee the necessary coherence and effectiveness thereof. To do

so, DG Relex works in close collaboration with other relevant DG’s and Commission

structures, most notably with DG Trade, DG Development, DG Enlargement,

EuropeAid and the European Humanitarian Aid Office (ECHO). Within DG Relex,

Directorate A deals specifically with ‘policy coordination in CFSP’, including with

crisis management and conflict prevention (A/2). DG Relex is headed by the External

Relations Commissioner, who acts as the interface between the Commission and the

GAERC and as the Commission’s interlocutor with the SG/HR.

Last but not least, while it is true that for the present purposes, the European

Commission is only a subsidiary actor, one must not forget that the Commission is

nevertheless an important actor in the general external relations field. Indeed, through

the relevant directorates-general, the Commission plays an important role inter alia in

relation to development and humanitarian aid. Despite a significant rise in recent

years, the CFSP budget still only represents 2% of the Community budget for external

relations. The Commission has moreover established a wide range of Community

instruments for civilian crisis management.28 An example hereof is the Rapid

Reaction Mechanism, a Community funding mechanism designed to support quick

and effective intervention in crisis situations in third countries.29 The parallel use of

Community and CFSP instruments raises the question of how to ensure a coherent

and effective EU crisis management policy.

b. Bodies under the authority of the Council In order to assist in the implementation of the CFSP, the Council has created three

main bodies under its auspices: the Political and Security Committee (PSC), the EU

28 See for example: European Commission, ‘Civilian instruments for EU crisis management’, April 2003, available at http://ec.europa.eu/comm/external_relations/cfsp/doc/cm03.pdf. 29 The Rapid Reaction Mechanism was established by Council Regulation (EC) No. 381/2001 of 26 February 2001, creating a rapid-reaction mechanism, (2001) O.J. L-57/5.

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Military Committee (EUMC) and the Committee for Civilian Aspects of Crisis

Management (CIVCOM).30

The most important of these is the Political and Security Committee, which is also

the only of these bodies whose tasks are enshrined in the Treaty on European Union

(Article 25 CTEU). The PSC (or ‘COPS’ in accordance with the French acronym) is

the successor of the - less visible - Political Committee established by the Maastricht

Treaty, which brought together the Directors of Political Affairs of the national

Foreign Ministries.31 Contrary to its predecessor, the PSC is a permanent body,

composed of national representatives at ambassadorial or equivalent level. The PSC

ambassadors are assisted by a network of European Correspondents, who are

normally mid-ranking diplomats from the Member States and who act as the primary

liaison between the PSC and the Political Directors at the national Foreign Ministries.

The PSC usually holds at least two meetings a week (on Tuesdays and Fridays).

Additional meetings may take place prior to Council meetings, or when third parties

demand their presence.32 PSC meetings are attended by a representative from the

European Commission (more precisely from DG Relex Directorate A), so as to ensure

consistency in the EU’s external relations, in particular when civilian crisis

management is under discussion. Four members of the Council Secretariat are also

present (from the Directorate-General for External and Politico-Military Affairs

(DGE), the Legal Secretariat, as well as other Directorates where appropriate). PSC

meetings are normally presided by the EU Presidency. However, after consulting with

the Presidency, the SG/HR may also chair the PSC, especially in the event of a

crisis.33 The PSC’s main task is to monitor the international situation in the areas

covered by the CFSP and to contribute to the definition of policies by delivering

opinions to the Council.34 It can do so at the request of the Council or on its own

initiative. The PSC also takes responsibility for the political direction of the 30 The first two bodies were provisionally established by Council Decisions of 14 February 2000, (2000) O.J. L-49/1; they were established on a permanent basis by Council Decisions of 22 January 2001, (2001) O.J. L-27/1, et seq. The CIVCOM was set up by Council decision of 22 May 2000, (2000) O.J. L-127/1. 31 See S. Duke, ‘The linchpin COPS: assessing the workings and institutional relations of the Political and Security Committee’, IEPA Working Paper 2005/W/05, November 2004, available at http://www.eipa.nl/Publications/Summaries/05/FC0505e.pdf, at 7-12. 32 Ibid., at 20. 33 Council Decision of 14 February 2000 establishing the PSC, (2000) O.J. L-49/1, Annex on the Political and Security Committee, § 3. 34 Ibid.

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development of military capabilities and acts as a forum for dialogue with other

international organizations. Most importantly, in relation to international crises, the

PSC is the central Council body that prepares the EU’s response. It keeps track of the

international situation. Once a crisis erupts, the PSC will propose the political

objectives to be pursued by the Union and will spell out and examine the EU’s

options for contributing to the settlement of the crisis. Taking account of the measures

adopted or envisaged by the European Commission and the Member States, the PSC

may recommend to the Council to adopt a Joint Action. As such, even though it has

no formal decision-making power proper, the PSC plays a major role in decision-

shaping.35 It lays the foundations for the decisions of political bodies such as the

European Council and the GAERC. When there exists consensus among the PSC

ambassadors to launch an ESDP operation, the adoption of a Council Joint Action will

be a mere formality. Furthermore, if the GAERC establishes an EU crisis

management operation, the PSC will exercise political control and strategic direction

over the operation.36 To this end, and on the basis of the recommendations of the

EUMC, it will inter alia evaluate the essential elements – strategic options, chain of

command, operation concept and operation plan – to be submitted to the Council. The

PSC is also charged with the overall responsibility for the programming, planning,

conduct, evaluation and reporting of all EU crisis management exercises, including

the preparation of the annual EU exercise programme. Given the scope of its tasks,

the PSC is often described as the ‘linchpin’ of the EU’s crisis management efforts.37

Initially, the creation of the PSC as a standing body at ambassadorial level was

thought to have the potential for conflicts with COREPER.38 The latter body indeed

occupies a slightly higher position in the Council hierarchy and its Permanent

Representatives are perceived as senior to the PSC ambassadors, who enjoy less

influence and margin of manoeuvre. For this reason, it is provided that the PSC shall

exercise its function without prejudice to the role of COREPER in preparing Council

sessions. The PSC will keep COREPER informed of its activities. Moreover, where

necessary, the Chairman of the PSC will participate in COREPER meetings so as to

guarantee close coordination between the two. So far, it seems that there exists indeed

35 A. Missiroli, loc. cit., supra n. 4, at 64. 36 Council Decision of 14 February 2000 establishing the PSC, (2000) O.J. L-49/1, Annex on the Political and Security Committee, Article 2 § 4. 37 Ibid, Annex, § 1. 38 S. Duke, loc. cit., supra n. 31, at 28.

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some degree of subcutaneous tension between the two bodies, yet this has not (yet)

materialized in any true conflicts.39

In order to fulfil its tasks effectively, the PSC is assisted by a wide range of bodies

and working groups.40 The Nicolaidis Group, for example, helps to prepare and

organise the PSC meetings. This support may include making practical arrangements

or drafting the agenda. The Group also serves as a point of contact between the

various delegations, which may flag up in advance what the main issues of concern

are to them, in order for the PSC meetings to proceed more effectively. The PSC is

furthermore assisted by a Politico-Military Working Group (PMG), which carries out

preparatory work on the ESDP, in particular with regard to the more technical work

(including work on the arrangements with NATO and operational details for ESDP

operations). Given the politico-military nature of its work, the Working Party brings

together officials from both the Foreign Ministries as well as Defence Ministries. It

holds regular meetings (up to four times a week) and will also meet with its

counterpart NATO Working Groups.41 Furthermore, the PSC is assisted by the

Working Party of Foreign Relations Counsellors (RELEX), a preparatory body

composed of external relations advisors from each permanent representation. Its

mission is to examine interpillar questions – institutional, legal as well as budgetary –

within the CFSP (not to be confused with DG Relex). The European Commission is

an active member of this group. Numerous other working parties support the daily

tasks of the PSC on specific tasks or geographical areas, such as CONUN (on UN

affairs), CODUN (on disarmament), COHOM (on human rights), or COAFR (on

Africa). These working parties are composed of experts from EU Member States and

the Commission. Finally, the Political and Security Committee has important ties with

two subordinate bodies, namely the EUMC and the CIVCOM.

The EU Military Committee is the highest military body within the Council.42 It acts

as a forum for military consultation and cooperation between the EU Member States

and exercises military direction of all military activities within the EU framework. It

is composed of the Chiefs of Defence (CHOD), represented by their Military

Representatives (MILREPs – most of these also serve on the NATO Military 39 Interview with national representative, April 2007. 40 See D. Wouters, loc. cit., supra n. 8. 41 S. Duke, loc. cit., supra n. 31, at 21. 42 Council Decision of 14 February 2000 establishing the EU Military Committee, (2000) O.J. L-49/4 .

16

Committee and are thus in fact ‘double-hatted’). Acting within the guidelines

forwarded by the PSC, the EUMC’s task is to give military advice and make

recommendations to the PSC, at the latter’s request or on its own initiative.43 This

advice, which is based on consensus, may relate inter alia to risk assessment of

potential crises, review of capability objectives or the development of an overall

concept of military crisis management.

The EUMC also provides military direction to the EU Military Staff (EUMS).44 In

crisis management situations, acting upon a request by the PSC, it draws on the

EUMS to develop and present strategic military options (MSOs). Upon

recommendation of the EUMC, the PSC may then select the military option and

identify possible Operation Commanders (OpCdr). Based on the EUMS evaluation,

the EUMC will subsequently give advice to the PSC on the Concept of Operations

(CONOPS) and the draft Operation Plan (OPLAN) developed by the Operation

Commander. During a crisis management operation, the EUMC monitors the proper

execution of military operations conducted under the responsibility of the OpCdr. Its

Members are also represented on the Committee of Contributors.

The EUMC has a permanent Chairman, the CEUMC, a four-star flag officer, elected

for a period of three years by the CHODs of the Member States and appointed by the

Council.45 The CEUMC has his own personal staff that is distinct from the EUMS.

On behalf of the EUMC, he attends meetings of the PSC as well as meetings of the

Council where decisions with defence implications are to be taken. He also liaises

with the Presidency in the development and implementation of its work programme.

During an EU military operation, the CEUMC acts as the primary point of contact

with the Operation Commander. The EUMC is supported by a military working group

(EUMCWG), the EUMC and by other departments and services, as appropriate.

On the civilian crisis management side, the Committee for Civilian Aspects of

Crisis Management (CIVCOM),46 which normally meets every week, provides the

equivalent for the EUMC. The CIVCOM operates as a Council working party and

reports to COREPER. It is composed of experts on a flexible basis, so that the

43 Ibid., Annex, Article 2. 44 Ibid., Annex, Article 3. 45 Ibid., Annex, Article 4. 46 Council decision of 22 May 2000, (2000) O.J. L-127/1, including Annex ‘Guidelines for the work of the Committee’.

17

necessary expertise is available to suit its agenda. EU Member States are represented

by members from their national representations to the EU, as well as experts from

capitals as necessary. The Commission and Council Secretariat are also present.

While the mandate of CIVCOM is defined more narrowly than that of the EUMC

(especially viz. the implementation of operations), the two bodies are in principle

considered to be at the same level. By analogy to the EUMC, CIVCOM formulates

recommendations and gives advice to the PSC on civilian aspects of crisis

management (in the four priority areas defined by the Feira European Council47). In

this capacity, it oversees the management of civilian operations. Like the EUMC, it

provides advice to the PSC on the police and civilian strategic options (PSOs and

CSOs), on the Concept of Operations (CONOPS) and on the draft Operation Plan

(OPLAN).

Finally, two former WEU organs, namely the Madrid-based Satellite Centre

(SATCEN)48 and the Paris-based Institute for Security Studies (EU ISS)49 have been

attached to ESDP structure as ‘autonomous agencies’ of the Council. Both have an ad

hoc budget and status. The SATCEN produces information and analysis based on

satellite imagery, which may for example be used in support of ESDP operations.

c. Structures and departments under the Council

General Secretariat As mentioned before, the SG/HR plays a key supporting role in organizing the EU’s

response to crisis situations. To this end, he is assisted by the CGS Directorate-

General for External and Politico-Military Affairs as well as a number of structures

attached directly to the SG/HR.

47 European Council, Conclusion of the Presidency, 19-20 June 2000, Santa Maria da Feira. The four priority areas identified are: the police, the rule of law, civilian administration and civilian protection. See also: A. Nowak, ‘Civilian crisis management within ESDP’, in A. Nowak (ed.), Civilian Crisis Management: the EU way, EU-ISS Chaillot Paper No. 90, June 2006, available at http://www.iss-eu.org/chaillot/chai90.pdf 48 See Council Joint Action 2006/998/CFP of 21 December 2006 amending Joint Action 2001/555/CFP on the establishment of a European Union Satellite Centre, (2006) O.J. L-405/60. 49 See Council Joint Action 2006/1002/CFSP of 21 December 2006 amending Joint Action 2001/554/CFSP on the establishment of a European Union Institute for Security Studies, (2006) O.J. L-409/181.

18

Within the overall structure of the Council General Secretariat, the Directorate-

General for External and Politico-Military Affairs (DG E) is competent for

following up on the CFSP. DGE encompasses three main sub-directorates-generals:

external economic relations, CFSP geographical and thematic affairs, and ESDP and

operations (both military and civilian). The latter includes a Directorate on Defence

Aspects (Directorate VIII) as well as a Directorate on Civilian Crisis Management

(Directorate IX). The former deals inter alia with armaments and capabilities, EU-

NATO relations, military aspects of the ESDP and exercises. The latter directorate

deals with the civilians aspects of ESDP, such as rule of law, civilian administration,

civilian protection and monitoring. It includes a Police Unit, which has to a large

extent the same function with regard to EU police missions as the EUMS has with

regard to EU military operations. The Police Unit is responsible for integrated

planning and coordination, situation assessment and the preparation of exercises. It

enables the EU to plan and carry out policing operations and is responsible for

formulating the draft police strategic options (PSOs), the draft Concept of Operations

for police missions, etc.

The Helsinki Summit moreover set up a Coordinating Mechanism for Civilian

Aspects of Crisis Management within the Council Secretariat, fully interacting with

the Commission services.50 The Coordinating Mechanism manages several civilian

and military databases. In the event of a crisis, it can establish an ad hoc centre to

coordinate Member States’ contributions and provide advice and support for civilian

crisis management. The Coordinating Mechanism is informed on a regular basis by

the Member States on the availability of civilian crisis management assets.

Apart from DG E, there exist several structures responding directly to the SG/HR.

One of these is the Policy Planning and Early Warning Unit (Policy Unit). The

Policy Unit consists of staff seconded from Member States as well as a representative

seconded by the Commission. It is a flexible policy-planning instrument at the service

of the SG/HR. It monitors developments in areas relevant to CFSP it generates early

warning information, and it produces policy option papers which may contain

analysis, recommendations and strategies for the CFSP. The Policy Unit is also in the 50 European Council, Conclusions of the Presidency, 10-11 December 1999, Helsinki, Annex 2 to Annex IV, non-military crisis management of the European Union.

19

lead for the joint work concerning the ‘Watch List’. This list is a joint production of

the various EU early warning bodies (the Policy Unit, SITCEN, EUMS Intelligence

Division and Commission services) which identifies countries where a crisis is

pending.51 The Watch List is prepared twice a year and is adopted by the PSC. Given

its composition, the Policy Unit is dependent upon the willingness of Member States

to share timely information with it. This information is used by the Unit to brief the

SG/HR, less so the CGS and, on occasion, the PSC. The quality of its briefings has

produced mixed comment.52

Like the Policy Unit, the EU Joint Situation Centre (SITCEN) consists of staff

seconded by Member States. Similarly, it is directly responding to the SG/HR.

SITCEN is a civilian structure with a small military group (Front End Cell-FEC),

whose main task is to monitor the international situation on a 24 hour basis and to

provide joint situation analyses in support of EU policy-making. These analyses may

serve an early warning function, but may also be used in support of ongoing EU

operations. The SITCEN is in the lead for such assessments, which are normally

directed towards the PSC. SITCEN is provided with civilian intelligence by the

Member States directly and with military intelligence by the EUMS. The Front End

Cell-FEC thereby acts as an interface between the SITCEN and EUMS.

Last but not least, the EU Military Staff (EUMS)53 is another CGS department

attached directly to the SG/HR. Like the two aforementioned bodies, it consists of

staff seconded by Member States, mainly military experts, but also civilian support

staff and others. It provides the EUMC and the SG/HR with military expertise and

support in the area of ESDP, including with regard to EU crisis management

operations. The EUMS performs three operational functions. Firstly, it performs an

early warning function in cooperation with other bodies in the GCS. It also deals with

situation assessment by supplying SITCEN with military information and by

receiving its output. Thirdly, it supports the EUMC regarding the military aspects of

strategic planning over the full range of the Petersberg tasks. The EUMS’ task

51 D. Wouters, loc. cit., supra n. 8. 52 See S. Duke, loc. cit., supra n. 31, at 28. 53 Council Decision 2005/395/CFSP of 10 May 2005 amending Council Decision 2001/80/CFSP on the establishment of the Military Staff of the European Union, (2005) O.J. L-132/17. The annex contains further information on the EUMS’ role, tasks and organization.

20

encompasses the identification of European national and multinational forces and to

implement policies and decisions as directed by the EUMC. In this capacity, it

contributes to the elaboration and review of the ESDP capability goals.

The EUMs liaises with the national Headquarters as well as with NATO: it hosts a

NATO liaison team at the EUMS and it operates an EU Cell at SHAPE. The EUMS

plays a key role in crisis management situations. It may then set up Crisis Action

Teams (CAT) and drafts the Initial Planning Guidance, CONOPS and OPLANs for

EU military operations. EUMS is headed by a Director-General (DGEUMS, a three-

star general) and consists of the following main divisions: a policy and plans division,

an intelligence division, an operations and exercise division, a logistics and resources

division, a communications and information system division, an executive office, the

EU cell at SHAPE and a Civilian-Military Cell (Civ/Mil Cell). The Civ/Mil Cell is a

novelty within the EUMS structure. Agreed upon in 2003 as a result of a difficult

political compromise,54 it only became operational in 2005. It was established to

enhance the EU’s capacity for crisis management planning, to link work across the

EU, to assist in planning, support and conduct of civilian operations carried out under

the responsibility of DG E, and to generate the capacity to plan and to run an

autonomous EU military operation once a decision on such an operation has been

taken. The Civ/Mil Cell should contribute to achieving greater coherence of the

instruments for EU crisis management. To this end, the Commission has agreed to

permanently appoint two liaison officers to the Cell. While this is certainly an

important institutional innovation, the Cell remains firmly grounded within second

pillar structures. It is primarily designed to support ESDP actions, rather than to

ensure coordination between ESDP and EC actions. It therefore remains to be seen to

what extent the Cell can truly contribute to greater inter-pillar coherence.55 The

Civ/Mil Cell is headed by a Military Director and a Civilian Deputy Director. It

consists of some 30 people, divided over two Branches: a Strategic Planning Branch,

which assists in strategic planning from Civil-Military Coordination perspective, and

54 M. Reichard, The EU-NATO Relationship: A Legal and Political Perspective (Aldershot: Ashgate) (2006), at 81-98. 55 See R. Khol, ‘Civil-Military coordination in EU crisis management’, in A. Nowak (ed.), op. cit., supra n. 47, pp. 123-140, at 130-131; C. Gourlay, ‘Civil-civil coordination in EU crisis management’, op. cit., supra n. 47, pp. 103-122, at 115-116.

21

an Operations Centre Permanent Staff.56 In case an autonomous EU military

operation is set up, the latter branch may reinforce the national Headquarters that is

designated to conduct the operation. When no suitable national Headquarters can be

identified, the branch can also provide the nucleus for an EU operational

Headquarters. In that case, the core EUMS staff will be supplemented with some extra

‘double-hatted’ EUMS officers and other experts from the Member States. Thus, the

Operations Centre Permanent Staff does not constitute a standing EU HQ, but merely

provides the capacity to set up an EU HQ for a particular operation. The Operations

Centre should be able to reach Full Operational Capability within 20 days. At this

point, it should be able to lead a military operation of around 2.000 personnel. This

means that the EU now has three options for commanding EU military operations:

either through one of the available national Operation Headquarters (currently five

Member States have made such an OHQ available: France, the UK, Germany, Italy

and Greece); through the NATO Operation Headquarters at SHAPE on the basis of

the ‘Berlin Plus’ arrangements (cf. infra), or; by an ad hoc expansion of the EUMS

Operations Centre Permanent Staff. The latter option is available since 1 January

007. 2

Where appropriate the Council may also adopt Council Joint Actions under Article 18

CTEU in order to appoint an EU Special Representative (EUSR) under the authority

and operational direction of the SG/HR. These EUSRs support the work of the SG/HR

in CFSP matters and provide the EU with an active political presence in key countries

and regions. In these countries and regions, they are to a large extent the ‘voice’ and

‘face’ of the EU.57 Where the EU has established an ESDP operation, the EUSR

provides political advice and guidance to the Operation Commander (for military

operations) or the Head of Mission/Police Commissioner (for civilian operations). In

such a situation, he will also serve as an interface between the SG/HR and the latter

persons. The SG/HR himself may also appoint Personal Representatives on thematic

56 Remarks to the European Parliament Sub-Committee on Security and Defency by Brigardier General

1 sUpload/070227BriefingCCMBrausstoEP.pdf.

SRs): a voice and face

Heinrich Brauss, Director Civ/Mil Cell Roland Zinzius, Deputy Director Civ/Mil Cell, Brussels, March 2007, at http://www.consilium.eu.int/uedocs/cm57 See e.g., EU Council Secretariat Factsheet, ‘EU Special Representatives (EUof the EU in crucial areas’, January 2007, available at http://www.consilium.europa.eu/uedocs/cmsUpload/EUSRs-REV_Jan07.pdf.

22

issues.58 Thus, the SG/HR has inter alia appointed a Personal Representative on

Human Rights, who has access to PSC sessions and who has a potential role in

tegrating human rights considerations in the ESDP.

phases in the decision-making

in

d. Different

process Whereas we have so far approached the ESDP decision-making structure mainly from

a top-down approach, we will now briefly adopt a ‘bottom-up’ approach’ to analyze

the different phases in the process of creation an ESDP operation. In this regard, the

PSC in 2003 adopted a useful document, entitled ‘Suggestions for procedures for

coherent, comprehensive EU crisis management’.59 While the ESDP structure has

slightly changed in the meantime, the document still provides a good overview of the

decision-making process for EU crisis management operations. It distinguishes six

ifferent phases.

rly warning, on the one hand, and coordinated advance planning on

e other hand.60

d

The first phase is the ‘Routine phase’. Here, the EU’s activities are confined to

monitoring and ea

th

As the crisis builds up, the collection of information, including intelligence, as well as

the exchange of views between the Commission on the one hand and the SG/HR and

the PSC on the other hand, may be stepped up (phase two).61 The SG/HR may give

operational direction to the SATCEN to closely monitor the identified crisis. The PSC

may moreover agree that joint CGS-Commission fact-finding missions be dispatched

to the region and may initiate considerations on the appointment of an EUSR. If the

PSC considers at this stage that EU action is appropriate, it may trigger the

development of a draft Crisis Management Concept (CMC). The drafting of such

/cms3_fo/showPage.asp?lang=en&id=942&mode=g&name=. stions for procedures for coherent, comprehensive EU crisis management’, 6 March

c. 7116/03.

id., at 7-11.

58 The list of EU Personal Representatives is available at http://www.consilium.europa.eu59 PSC, ‘Sugge2003, Council Do60 Ibid., at 5-6. 61 Ib

23

document is done by a so-called ‘Crisis Response Coordination Team’ (CRCT).62

CRCTs are ad hoc vehicles for inter-service coordination, which are pulled together

when a particular crisis occurs and bring together representatives of the Commission,

SG/HR Cabinet, EUMS, Police Unit, Policy Unit, Council Legal Service and SITCEN

(mostly at senior official level). As far as the Council Secretariat is concerned, the

SG/HR will instruct the relevant services to participate in the team. In general,

however, the analysis of the military and police options is led by the EUMS and the

Police Unit respectively. As regards other civilian instruments, planning may draw on

the information provided by the Member States to the Coordinating Mechanism for

Civil Aspects of Crisis Management. At this stage already, the EUMS may look for a

the advice of the EUMC and

IVCOM on the military and civilian aspects of the document respectively. The PSC

possible Operational HQ suitable for planning and commanding a possible military

operation. The EUMC may hereafter consult with the Member States and recommend

a particular Operational HQ to the PSC.

The CMC contains a factual analysis of the situation as well as an analysis of the EU

interests and objectives involved. It will moreover set out various options for an

overall EU response as well as an evaluation of these options.63 The draft CMC is

presented by the SG/HR to the PSC, which will receive

C

will then include its opinion at the end of the draft CMC and forward the document to

the Council, thus opening the third phase of the process.

The third stage starts with the approval by the Council, on the basis of the PSC’s

recommendation, of the CMC.64 At this moment, the Council may also adopt other

measures; it may for example appoint an EUSR or note the availability of a suitable

Operational HQ (OHQ – for a military operation). Hereafter, the PSC may, upon

recommendation of the EUMC, identify possible Operational Commanders (for

military operations). It will also set in motion the drafting of strategic options. As

regards the military elements, the PSC requests the EUMC to issue a Military

Strategic Options Directive (MSOD) to the EUMS, which calls upon the latter body to

develop and prioritise the military strategic options (MSOs). The EUMS may thereby

receive planning assistance from the identified suitable OHQ. Member States and 62 See Ibid., Annex 2 to Annex, ‘Council Secretariat/Commission outline paper on the CRCT’, at 31-34. 63 For a model CMC, See Ibid., Annex 3 to Annex, ‘CMC Template’, at 35-39. 64 Ibid., at 12-16.

24

interested third countries are also supposed to give the EUMS preliminary indications

of their intention to contribute to a potential operation or not. As regards the civilian

elements, the drafting of police strategic options (PSOs) and civil strategic options

(CSOs) is mainly in the hands of the Police Unit and the Coordinating Mechanism for

Civil Aspects of Crisis Management. These bodies may receive assistance from the

CIVCOM and the Commission. Their efforts may also be reinforced by the addition,

on an ad hoc basis, of national experts. Through the Coordinating Mechanism,

Member States will again indicate their intention to contribute to a potential operation

or not. For police operations, the Police Unit will inter alia include recommendations

garding a Police Head of Mission (PolHoM) and an Operational Headquarters. As

re

with the CMC, draft MSOs/PSOs/CSOs will be fixed by the PSC after receiving the

advice of the EUMC (for MSOs) and CIVCOM (for PSOs and other CSOs). The PSC

will then submit to the Council a draft decision to take action.

The fourth phase concerns the development of planning documents.65 It starts off

with the adoption by the Council of the proposed decision to take action. The Council

will thereby decide on MSOs/PSOs/CSOs and will invite Member States and possibly

third countries to confirm their readiness to contribute. The decision will also identify

the proposed chain of command. For military operations, this means that the Council

will identify the Operational Headquarters (according to one of the three options

mentioned above), appoint the Operational Commander (for operations within the

‘Berlin Plus’ framework this would normally be the Deputy Supreme Allied

Command Europe (DSACEUR)) and designate the Force Commander. For other

operations, this means that the Council will appoint a Police Head of Mission

(PolHoM) or a Head of Mission for other Civilian Operations (HoMCO), as

appropriate. In its decision, the Council may moreover appoint an EUSR and may

authorize the SG/HR and the PSC to undertake certain steps, such as the

establishment of a Committee of Contributors (CoC – by the PSC). Following a

request from the PSC, the OpCdr and the Police Unit will subsequently prepare a draft

CONOPS for military or police operations.66 If the use of other civilian instruments is

65 Ibid., at 17-23. 66 For military operations, the PSC requests the EUMC to trigger the drafting of the CONOPS. The EUMC subsequently directs the EUMC to draft the Initiating Military Directive (IMD), which in turn includes directives enabling the OpCdr to draw up the CONOPS and OPLAN. For police operations, the PSC forwards a requests to the SG/HR, who will then direct the Police Unit to draft the CONOPS.

25

envisaged, a similar planning procedure with specific planning documents is

followed. After receiving the advice of the EUMC and CIVCOM, the PSC hereafter

forwards the agreed military and police CONOPS as well as planning documents for

other civilian instruments to the Council for approval. Upon approval hereof, the PSC

the PSC, taking into account the advice of the EUMC and

IVCOM, and are forwarded to the Council. The Council is now ready to approve the

contact with the OpCdr. With regard to civilian operations (police and other), the

PolHoM or HoMCO are responsible for the conduct of the operation. The report to

triggers the Force Generation process which is led by the OpCdr in coordination with

the EUMS for military capabilities and by the PolHoM, supported by the Police Unit,

for police capabilities.67 The generation of other civilian assets is channeled through

the Coordinating Mechanism.

Two documents then remain to be drafted: the Status of Forces Agreement (SOFA) or

Status of Mission Agreement (SOMA) and the Operation Plan (OPLAN). The first is

prepared by the Council Secretariat, in consultation with the OpCdr/PolHoM/HoMCO

(as appropriate). The latter document – which may include the Rules of Engagement

(RoE) as appropriate – is prepared by the OpCdr for military operations and by the

PolHoM, assisted as necessary by the Police Unit, for police operations. For other

civilian instruments, a similar procedure is followed. Both the SOFA and the OPLAN

are then agreed upon by

C

OPLANs (or equivalent documents), including the ROEs, as well as the

SOFAs/SOMAs and will at last decide to launch the operation once all preparatory

conditions are fulfilled.

Throughout the implementation phase (phase 5), the PSC exercises political control

and strategic direction of the operation.68 With regard to military operations, the

OpCdr is responsible for the conduct of the operation. He reports to the EUMC,

which, supported by the EUMS, monitors the proper execution of the operation and

reports to the PSC. As mentioned before, the CEUMC acts as the primary point of

the EUSR, who, in turn, reports to the SG/HR and the PSC. CIVCOM continues to

67 For military operations, this process may involve the organization of Force Generation Conferences or of meetings of the PSC with the North Atlantic Council. 68 PSC, ‘Suggestions for procedures for coherent, comprehensive EU crisis management’, 6 March 2003, Council Doc. 7116/03, at 24-26.

26

give advice to the PSC. If a Committee of Contributors (CoC) has been established,69

it will serve as the main forum for discussing all problems related to the day-to-day

management of the operation and for providing recommendations on possible

djustments of operational planning.

its own appraisal and proceeds to an overall

ssessment of the lessons learned.

a

The sixth and final stage of the operations process involves a number of activities

that may take place in earlier or subsequent phases or may be iterated over time.70

Thus, the PSC may decide that EU action should be refocused, including by

terminating some or all elements of the action. To this end a revised CMC may be

drafted, following the process set out above. If the PSC agrees to refocus or terminate

the operation, a decision is subsequently forwarded to the Council for approval. The

final stage also covers the evaluation of lessons learned under the auspices of the

PSC. This activity is led by the EUMC and CIVCOM, on the basis of the reports by

the OpCdr, the EUMS, the PolHoM or HoMCO and/or the Police Unit. The PSC may

also request the CoC to provide

a

e. Evaluation How should we evaluate the institutional set-up and the decision-making chain

described above? In general, a positive appraisal seems warranted. Although the

exact amount of time needed to approve and launch an operation depends on the

urgency of the situation, the personnel and assets required for the operation and the

political context, the EU now has the capacity to respond in a timely manner to an

emerging crisis situation. Thus, despite the institutional complexity of the ESDP, the

decision to launch Operation Artemis in the DRC was taken in less than a week.

69 For civilian operations a CoC is established unless the PSC decides otherwise. The PSC will also examine whether there should be a joint CoC for th military operation and for the other civilian elements. The CoC will be supplied with detailed information by the OpCdr/PolHoM/HoMCO.

e

The CoC for military operations may be comprised of representatives on the PSC and on the EUMC. It will usually be chaired by a representative of the SG/HR or the Presidency, assisted by the CEUMC or

idency or by a representative of the SG/HR. The Commission will also have a seat

oC also includes non-member ‘third’ countries that provide a ‘significant’ military contribution

or coherent, comprehensive EU crisis management’, 6 March

his deputy. The DGEUMS and the OpCdr may also attend the Committee. The CoC for civilian operations may be comprised of representatives on the PSC and will usually be chaired by the Presin the Committee. The Cto it. 70 PSC, ‘Suggestions for procedures f2003, Council Doc. 7116/03, at 27-28.

27

Preparation of the EU Border Assistance Mission at Rafah (EU BAM Rafah) took

some three weeks. The launching of EUFOR RD Congo and Operation Althea took

two months and eight months respectively. Step-by-step the EU has created an

arsenal of ESDP bodies covering all aspects of civilian and military crisis

management, from early warning to strategic planning and assessment of lessons

learned. Within this framework, the PSC constitutes the ‘linchpin’ of the ESDP. As a

standing body composed of representatives it has gained considerable visibility and

has proved to

71

be capable of practical problem-solving.72 Likewise, the SG/HR has

een of capital importance in the progressive development of the ESDP and in

ent tools and structures.74 Finally, a

learer division of tasks between COREPER and the PSC might alleviate the

b

providing it with an identifiable visage. The unanimity requirement does not seem to

have hindered the ESDP either; to date, all ESDP operations were decided by means

of consensus.

Still, there remains ample room for institutional reform. On a more general level,

we have already referred to the need to strengthen the democratic accountability of

the ESDP. Indeed, while the ESDP is traditionally the aspect of EU activity that

enjoys the most support among EU citizens (as the Eurobarometer demonstrates73), a

closer involvement of both the EP and national parliamentarians seems necessary to

fill the existing parliamentary grey area. Furthermore, it was already hinted at that the

creation of a defence ministers’ Council – which is considered inevitable in the long

run – might further integration in ESDP matters and assist in developing and

strengthening the EU’s military crisis managem

c

existing tension between the two bodies. Up-to-day, the interpretation of this division

of tasks seems to shift slightly as the Presidency changes, thus hindering a more

efficient and sustainable working relationship.75

71 Interviews with EU officials, Brussels, September 2006. 72 H. Ojanen, ‘The EU and NATO: Two competing models for a Common Defence Policy’, (2006) 44 J.C.M.S. 57, at 67. 73 See for example, European Commission, ‘Eurobarometer 64: Public Opinion in The European Union’, December 2005, at http://ec.europa.eu/public_opinion/archives/eb/eb64/eb64_first_en.pdf, at 33-36. 74 H. Ojanen, loc. cit., supra n. 72, at 67. 75 Interview with national representative, Brussels, April 2007.

28

On a more specific level, the ESDP institutional set-up suffers from a number of

shortfalls and inconsistencies that are mainly the result of the gradual and

intermittent development of the relevant structures. This seems especially true

for civilian ESDP structures, which have been built as the ESDP moved along.

Thus, it seems that the structures for military operations are more firmly established

than those for police and other civilian operations. For instance, whereas the EUMC is

a standing body with a fixed membership (the MILREPs, representing the national

Chiefs of Defence), tasked inter alia with the monitoring of military operations, the

CIVCOM has the status of a Council working party, with flexible membership and

lacking a similar monitoring function for civilian operations. It is unclear why the two

bodies should not be endowed with a similar position in their respective spheres. An

upgrade of the CIVCOM to this end seems recommended. Indeed, while military

operations may be more demanding than civilian operations, there is no reason to see

why the two should not be on equal footing. In similar vein, while the EUMS has a

key role in preparing planning documents (PSOs, CONOPS, OPLANs) for military

operations, for civilian operations the situation is less clear. The Police Unit is

responsible for drafting the planning documents for police operations, but for other

civilian instruments no such central body/ies exist. The role of the Coordinating

Mechanism is at best unclear. One may wonder whether it would not be more

efficient to integrate the Coordinating Mechanism and the Police Unit, while adding

national experts on this joint body where appropriate. Finally, whereas military

operations incorporate a clear chain of command (Force Commander – Operations

Commander – EUMS – EUMC – PSC), in civilian operations the links between the

PolHoM/HoMCO, the EUSR, the SG/HR and the PSC are less obvious. So far, the

relative ‘underdevelopment’ of the civilian ESDP branch has not caused too many

problems, yet this may partially be due to the fact that civilian operations have

remained rather small. As the EU is envisaging a much larger civilian operation in

Kosovo, however, the issue needs to be addressed. In this regard, SG/HR Solana

recently launched the idea of improving the chain of command for civilian operations

by appointing a Civilian Operation Commander – nominated by the SG/HR – in the

Council Secretariat.76 In analogy to military ESDP operations, the Operation

Commander would be responsible for the planning and conduct of all civilian ESDP 76 The idea was part of a package of proposals for reforming the CGS submitted by SG/HR Solana at the June 2006 European Council Session (the so-called ‘Hampton Court’ proposals; cf. infra).

29

operations and ensuring an efficient, two-way flow of information between the

HR/SG and the PSC on the one hand, and the HoM on the other hand. He would inter

alia be tasked with ensuring the proper implementation of the mission under the

SG/HR and following the direction of the PSC; ensuring that the HoM receives

appropriate instructions, and; keeping the PSC and CIVCOM informed of all relevant

aspects of the mission. In principle, Member States seem to agree on the desirability

to create this post. As a result, an Operation Commander – possibly a double-hatted

director from DGE Directorate IX – is likely to be appointed in the near future,

possibly prior to the launch of the (upcoming) ESDP operation in Kosovo.77 This

measure could arguably contribute to a clearer chain of command for civilian

operations. At the same time, the introduction of this new post does require a clear

division of tasks between the Civilian OpCdr on the one hand, and the EUSRs on the

other hand. The former would head the operational control of civilian operations. The

tter, however, would retain their role of political guidance and advise and would

activities in Bosnia-Herzegovina, the EU Police Mission (EUPM) falls under the

auspices of DGE Directorate IX and CIVCOM, whereas the military operation

(‘Althea’) falls under the auspices of the EUMS and DGE Directorate VIII.80 The fact

that the staff of these structures are all co-located at the Kortenbergh Building may

la

continue to act as ESDP ‘managers’ in a given crisis situation. Moreover, while at

present the idea is to designate one single Civilian Op Cdr for all civilian operations,

in due course, depending on the range of the EU’s engagements, this task may have to

be split up over several Civilian Operation Commanders, by analogy with the role of

the military Operation Commanders.78

Related to the aforementioned concerns is the need to further strengthen the

relationship between the military and civilian fields in EU efforts in crisis

management and to deploy the full range of civilian and military ESDP instruments in

a coherent and coordinated manner. The importance hereof has been recognized by

successive European Councils since 1999.79 Yet, true civil-military coordination in

ESDP decision-making remains a work in progress. Thus, with regard to ESDP

77 M. Schaefer, ‘ESDP: from Cologne to Berlin and beyond: operations – institutions – capabilities’,

tiv/content/berlin08.pdf. pril 2007.

: lessons from Bosnia’, (2006) 29 European Security Review, available at

Berlin, 30 January 2007, available at http://www.iss-eu.org/ac78 Interview of national representative, Brussels, A79 See R. Khol, loc. cit., supra n. 55, at 126-127. 80 D. Orsini, ‘Future of ESDPhttp://www.isis-europe.org/.

30

help to foster working contacts between them,81 yet at the same time there seems to

be significant intra-institutional tension due to the unclear delineation between policy

the EUSR, who maintains an overview of the whole range of activities within an area

of operations and closely coordinates with the relevant Force Commanders and Heads

and operational planning, lack of decision-making clarity and the understaffing of the

civilian side.82

Some recent procedural innovations may contribute to better civil-military

coordination in the future. For example, the creation on an ad hoc basis of Crisis

Response Coordination Teams (CRCTs), bringing together officials from the

Commission and various structures within the CGS could promote coherence between

military and civilian strategic options. So far, however, the role of the CRCTs has

been confined mainly to formal coordination between the Council and the

Commission at a senior level, its activity during the planning of ESDP operations

being rather limited.83 More importantly, the recently established Civ/Mil Cell, which

was explicitly tasked with civil-military coordination, has the potential of providing a

strong intra-pillar coordination tool. It contains both military and civilian personnel

with a solid planning background and a good awareness of the EU institutional

environment84 and has assisted in the planning and preparation of several ESDP

operations (e.g., the Aceh Monitoring Mission, the EU Border Assistance Mission in

Rafah and the EU Support Action to AMIS II (Darfur)). While the establishment of

the Cell looks promising, it should be noted again that as a division within the EUMS

it forms part of the military side of ESDP structures. Given that the Cell was intended

to serve as a bridge between the civilian and military sides, one may wonder if it

would not have been more logical to locate its Strategic Planning Branch (not the

Operations Centre Permanent Staff) somewhere in-between the two sides, with links

not only to the EUMS, but also, for example, to the Police Unit. Furthermore, even

though the Civ/Mil Cell may contribute to better civil-military coordination in the

planning phase, it is not clear how coordination may be improved in the

implementation phase. So far, civil-military coordination in the field is reserved for

ilable at en-02111.pdf; R. Khol, loc. cit., supra n. 55, at 127.

it., supra n. 55, at 128. 84 Ibid., at 132.

81 R. Khol, loc. cit., supra n. 55, at 127. 82 E.g., S.E. Penska, ‘Policing Bosnia and Herzegovina 2003-05: issues of mandates and management in ESDP mission’, CEPS Working Document No. 255, December 2006, avahttp://www.gees.org/documentos/Docum83 R. Khol, loc. c

31

of Mission.85 Yet, such an ad hoc approach seems in itself insufficient, especially if

the EU were to launch a full-fledged mixed civil-military operation.86

In conclusion, it seems fair to state that the definitive ESDP institutional set-up is yet

to materialize. The gradual development of ESDP structures has resulted in an

imbalance as well as a lack of coherence between the civilian and military sides, two

aspects that remain to be fully tackled. In some instances, it has also resulted in a

duplication of efforts. The dispersal of early warning functions within the Council

Secretariat is illustrative in this regard: the Policy Unit, SITCEN and the EUMS

Intelligence Division are all active in this field. In order to alleviate these problems, a

comprehensive restructuring of the Council Secretariat is essential. Already SG/HR

Solana has brought forward a number of proposals for reform of the Council

Secretariat in light of the “Hampton Court follow-up”.87 Apart from the

aforementioned creation of the post of a Civilian Operation Commander, the set of

proposals includes the suggestion to establish a new Crisis Management Board

(CMB) under the chairmanship of the SG/HR, which would meet whenever an

operation is contemplated and which would clarify tasks, roles and responsibilities

within the Secretariat. The CMB would also meet at regular intervals to review

progress and problems in operations and would evaluate terminated operations and

identify the main lessons learned. Meetings would be attended by the CEUMC as well

as – at key points – by the PSC Chair. The SG/HR has also suggested restructuring

the Council Secretariat in four integrated groups:

- a Group dealing with Situation and Risk Assessment (Group A), bringing

together SITCEN and the EUMS intelligence division in a single functional

structure, with the latter remaining administratively within the EUMS;

- a Policy Group (Group B), charged with the preparation and oversight of

implementation of PSC decisions, including both the geographical desks, the

Policy Unit and DGE Directorates VIII and IX;

85 Ibid., at 130. 86 A truly mixed civil-military operation has not yet been launched under ESDP auspices, be it that on some recent occasions (notably the AMIS II Supporting Action and EUSEC DRC) the EU has included both civilian and military elements under a single mandate. 87 See e.g., J. Solana, ‘From Cologne to Berlin and beyond – operatons, institutions and capabilities’, adress at the ESDP Conference, Berlin, 29 January 2007, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/discours/92565.pdf.

32

- a Planning Group (Group C), which would group together military and civilian

planning resources – including from the Civ/Mil Cell – following the approval

of a CMC, and;

- an Operational Execution/Strengthening Implementation Capacity Group

(Group D).

In order to improve communication between Brussels and the missions on the ground,

the SG/HR has also proposed to establish a watch-keeping facility headed by the

Director of the Civ/Mil Cell and reporting to the DGEUMS, to take over the operation

of the links to civilian and military missions currently undertaken by the SITCEN.88

If implemented, this package of proposals could arguably contribute to a more

efficient and coherent functioning of the Council Secretariat structures. They would

enable the military branch to gain a better understanding of civilian aspects of crisis

management and would enable the civilian branch to build upon the military expertise

with regard to strategic planning, command and control, et cetera. At the same time,

the proposed changes only seem to respond partially to the concerns listed above.

Therefore, it is not unlikely that they will prove to be only short-term solutions to

more long-term problems of structural coherence and capacity.89

While we have so far discussed problems of incoherence and duplication at the

inter-pillar ESDP level, similar concerns can be raised as regards the inter-pillar

level, more specifically as regards the relation between the ESDP and the Community

instruments for crisis management under the first pillar. Indeed, although the

European Security Strategy emphasizes the importance of bringing together the

different instruments and capabilities for crisis management, the lack of inter-pillar

coordination has been subject to a great deal of criticism.90 Quite rightly so: EU crisis

management can only be efficient if the short-term ESDP instruments are

complementary to the broader and more long-term crisis management instruments

under the first pillar.

Early warning is a good example of an area where inter-pillar coordination seems to

fail. At present, both the Commission and the Council incorporate structures for early

warning and situation assessment: within the Commission, this task is mainly carried

88 Ibid., at 4. 89 S.E. Penska, loc. cit., supra n. 82, at 25-26. 90 See for example: C. Gourlay, loc. cit., supra n. 55; S. Duke, loc. cit., supra n. 26.

33

out by the Monitoring and Information Centre; within the Council structures, the task

is spread over different bodies (cf. supra). Both the Council and the Commission

develop their own watch lists of countries at risk. Coordination is largely limited to a

one-way exchange of information with the Commission supplying the SITCEN with

its country assessments and watch lists.91 While this parallel analysis is generally

recognized as complicating a coherent inter-pillar response, the Commission’s call for

a “common and authoritative analysis of the situation on the ground” with Member

States and the CGS92 has so far remained unanswered. Nevertheless, the Commission

and Council should bundle their expertise in a common platform for situation

assessment and e