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Ensuring Respect: The European Union's Guidelines on Promoting Compliance With International Humanitarian Law

Published online by Cambridge University Press:  19 March 2012

Andrea Breslin
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Abstract

The European Union as a prominent regional organization is increasingly expected to contribute positively in terms of the promotion of certain values, both by European Union citizens and by the international community. These values include the promotion and development of international law, including international humanitarian law. The focus of this Article is on the influence, actual and potential, of the European Union in terms of promoting humanitarian law externally, and on ensuring respect of humanitarian law by third States. It briefly discusses the evolution of the duty to ensure respect and outlines the relevance of international humanitarian law to the external action of the European Union. The European Union Guidelines on Promoting Compliance with International Humanitarian Law are introduced and the background, content, and potential are explored. While not constituting binding law, these guidelines represent the position of the European Union in relation to promoting humanitarian law externally and reflect the responsibilities of European Union Member States with regard to ensuring respect for humanitarian law.

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Articles
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Israel Law Review , Volume 43 , Issue 2 , 2010 , pp. 381 - 413
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 See Fleck, Dieter, Enforcement of International Humanitarian Law, in The Handbook of International Humanitarian Law 675 (Fleck, Dieter ed., 2d ed. 2008)Google Scholar: “One of the peculiarities of international law is that its legal rules are not enforced through a central body. In this respect it differs fundamentally from domestic law, and herein lies its weakness which is often deplored.” Tristan Ferraro also notes that this weakness “is inherent to the decentralized structure of the international legal system and is the result of the absence of a central authority capable of enforcing international rules” in Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 Isr. L. Rev. 331, 332 (2008)Google Scholar.

2 Outside of the EU kamework, Dieter Fleck has suggested some practical steps for improving implementation of and compliance with international humanitarian law generally, and encouraging states and non-state actors to meet their responsibilities (most of which are addressed in some form through the EU Guidelines): see Fleck, Dieter International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Law 11 J. Conflict & Sec. Law 179 (2006)CrossRefGoogle Scholar; also on implementation see generally & Pfanner, Toni, Various Mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims, 91 Int'l Rev. Red Cross 279 (2009)CrossRefGoogle Scholar.

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4 See Morrison supra note 3, at 55.

5 Toni Pfanner has noted how the “growing interest of regional organizations in international humanitarian law finds expression at several levels,” see Pfanner, supra note 2, at 325.

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7 Id.

8 Id. at 455,459-60,477.

9 Id at 457.

10 Article 47 of the Treaty on European Union (TEU) explicitly confers legal personality on the EU, Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/13. All articles of the TEU referred to the in the text are the articles of the consolidated version, as amended by the Treaty of Lisbon (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 2007 O.J. C 306/01), unless indicated otherwise.

11 Such rights and responsibilities deriving from its international legal personality, see Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, 1949 I.C.J. 174, at 179 [hereinafter Reparation Advisory Opinion]. For a brief overview of the extent of application of international law to the EU generally, see Naert, Frederik, International Law Aspects of the EU's Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights 452–53 (2010)Google Scholar.

12 For a detailed discussion of the proper obligations of the EU itself under IHL, for example including under customary international law, and general principles of both international law and EU law, see NAERT, supra note 11, at 515-40.

13 Which may not include the entirety of customary international humanitarian law: “Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice”: See Reparation Advisoiy Opinion, supra note 11, at 180; see also Naert, supra note 11, at 391-92 and text to n. 1740; for a discussion of the approach of the European Court of Justice to customary international law as part of the European legal order, see Higgins, Rosalyn, The ICJ, The ECJ, and the Integrity of International Law, 52 Int'l & Comp. L. Q. (2003)CrossRefGoogle Scholar. For further discussion on the EU being bound by customary international law, see: Lenaerts, Koen & De Smijter, Eddy, The European Union as an Actor under International Law, 19 Y.B. Eur. L. 95, 122 (1999–2000)Google Scholar; Hoffmeister, Frank, The Contribution of EU Practice to International Law, in Cremona, ed., infra note 36, at 55Google Scholar; Zwanenburg, Marten, Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations, in The European Union and Crisis Management: Policy and Legal Aspects 400–02 (Blockmans, Steven ed., 2008)Google Scholar.

14 Naert, supra note 11, at 512.

15 As cited by Zwanenburg, supra note 13, at 402.

16 As cited by Naert, supra note 11, at 517 (emphasis added). Zwanenburg has similarly concluded that both EU Member States and other troop-contributing states have an obligation to ensure respect for the Geneva Conventions by the EU: see Zwanenburg, supra note 13, at 414. For an in-depth discussion of the applicability of IHL to EU-led forces, see Falco, Valentina, The Internal Legal Order of the European Union as a Complementary Framework for its Obligations under IHL, 42 Isr. L. Rev. 168 (2009)CrossRefGoogle Scholar.

17 The wording of Common Article 1 is reflected in Rule 139 of the ICRC Study on customary international humanitarian law, stating that each “party to the conflict must respect and ensure respect for international humanitarian law”: Henckaerts, Jean-Marie & Doswald-Beck, Louise, Customary International Humanitarian Law (2005)CrossRefGoogle Scholar.

18 Boisson de Chazournes, Laurence & Condorelli, Luigi, Common Article I of the Geneva Conventions Revisited: Protecting Collective Interests, 837 Int'l Rev. Red Cross (2000), text adjacent to n4Google Scholar.

19 Id. text to n5, referring to Pictet's, Jean edited Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 21 (1958)Google Scholar. Frits Kalshoven has explored the travaux preparatoires and developments of scope in his thorough study on the duty, in the article The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit, 2 Y.B. Int'l Human. L. 3–6(1999)CrossRefGoogle Scholar 1.

20 Boisson de Chazournes & Condorelli, supra note 18, text adjacent to n6.

21 Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America) Merits, 1986 I.C.J. para. 220 [hereinafter Nicaragua v. United States of America]. It must be noted that the duty to “ensure respect” in this case precluded the U.S. from offering assistance or encouraging individuals or groups engaged in armed conflict to act in a manner that would violate Common Article 3 of the Geneva Conventions, but did not include a duty to take positive steps to “ensure respect” by such individuals or groups. Thus, the general principle recognized therein is more limited than the interpretation of Common Article 1 which includes positive as well as negative obligations.

22 Boisson de Chazournes & Condorelli, supra note 18, text adjacent to n27.

23 Nicaragua v. United States of America, supra note 21, para. 220.

24 Human Rights in Armed Conflicts, Resolution XXIII adopted by the International Conference on Human Rights, Teheran, 12 May 1968 [emphasis added].

25 Cassese, for example, has noted that any “contracting State, faced with violations of the Conventions by a belligerent (or, more generally, a party to an armed conflict) may take action and demand cessation of the breach. Thus, we are faced with community obligations and community rights proper”; Cassese has also noted that this “is the construction that is today universally accepted by both States and the ICRC,” Antonio Cassese, International Law 18–19 (2005)Google Scholar; and also Common Article 1 is “today unanimously understood as referring to violations by other States,” Sassòli, Marco, State Responsibility for Violations of International Humanitarian Law, 84 Int'l L. Rev. Red Cross 401, 421 (2002)Google Scholar.

26 Nicaragua v. United States of America, supra note 21, para. 220.

27 The UN General Assembly has adopted resolutions to this effect, including the following: calling upon “all High Contracting Parties to the Convention, in accordance with article 1 common to the four Geneva Conventions and as mentioned in the advisory opinion of the International Court of Justice of 9 July 2004, to continue to exert all efforts to ensure respect for its provisions by Israel” G.A. Res. 63/96, U.N. Doc. A/Res/63/96 (Dec. 18, 2008).

28 As demonstrated by the adoption and revision of the EU Guidelines on the Promotion of International Humanitarian Law (IHL). The ICRC has also advocated this interpretation of Common Article 1, for example stating that it is “generally recognised that Common Article 1 requires States that are not party to an armed conflict to strive to ensure respect for the law by taking every possible measure to put an end to violations of the law by a party to a conflict, in particular by using their influence on that party,” see Action by the International Committee of the Red Cross in the Event of Violations of International Humanitarian Law or of other Fundamental Rules Protecting Persons in Situations of Violence, 87 Int'l Rev. Red Cross No. 858, 393, 395 (2005)Google Scholar (emphasis in the original).

29 The seminars were organised to include regional participation, and were held in Cairo, Pretoria, Kuala Lumpur, Mexico City and Bruges. The participants included government experts, parliamentarians, academics, members of regional bodies, experts from NGOs, and representatives of the National Societies of the Red Cross and Red Crescent. ICRC, Improving Compliance with International Humanitarian Law: ICRC Expert Seminars (2003)Google Scholar.

30 Boisson de Chazournes, Laurence, The Collective Responsibility of States to Ensure Respect for Humanitarian Principles, in Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms 247 (Bloed, A. et al. ed., 1993)Google Scholar.

31 Preamble, Treaty establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140.

32 Id.

33 For some background information on EU expansion and development, see Dedman, Martin J., The Origins & Development of the European Union 1945–2008: A History of European Integration (2d ed. 2009)Google Scholar; McAllister, Richard, European Union: An Historical and Political Survey (2d ed. 2009)Google Scholar; and Dinan, Desmond, Europe Recast: A History of European Union (2004)Google Scholar.

34 EU civilian instruments of crisis management include police operations, rule of law initiatives, civilian administration, and civil protection.

35 The appointment and functions of the position are provided by TEU, supra note 10, arts. 18 & 27.

36 Communication from the European Commission to the European Council of June 2006, Europe in the World: Some Practical Proposals for Greater Coherence, Effectiveness and Visibiliy (Brussels June 8, 2006) COM (2006) 278, para. 1Google Scholar; see aforementioned report on developments in the external policy of the EU in general, and see also Developments in EU External Relations Law (Cremona, Marise ed., 2008)CrossRefGoogle Scholar.

37 The establishment of the European External Action Service is provided for by TEU, supra note 10, art. 27(3). The Service, in accordance with Article 27(3), will work in cooperation with the diplomatic services of the Member States and shall be staffed by officials from the General Secretariat of the Council and of the Commission, along with staff from national diplomatic services of Member States. The Service in this way can be seen as a collaboration between Member States and the organs of the EU. See also Council Decision of 26 July 2010, establishing the organisation and functioning of the European External Action Service (2010/427/EU), 2010, O.J. L 201/30.

38 European Security and Defence Policy 1999–2009 (Council of the European Union 2009) 4Google Scholar; the aim of the EU foreign policy is to “replace the law of force with the force of law.” On EU foreign policy and normativity in the EU order generally, see EU Foreign Policy in A Globalized World: Normative Power and Social Preferences (Laidi, Zaki ed., 2008)CrossRefGoogle Scholar.

39 TEU, supra note 35, art. 3(5).

40 See Council of the European Union, EU Guidelines: Human Rights and International Humanitarian Law (March 2009), http://www.consilium.europa.eu/showpage.aspx?id=168l&lang=EN.Google Scholar

41 Id. preface by Javier Solana, former High Representative for Common Foreign and Security Policy.

42 On the EU's affinity for the so-called “R2P” doctrine, see Vincent, Marie & Wouters, Jan The Responsibility to Protect: Where Does the EU Stand? (Policy Brief No.10, Madaraiaga European Foundation and Leuven Centre for Global Governance, November 2008)Google Scholar, www.ggs.kuleuven.be/nieuw/publications/policy%20briefs/pb10.pdf.

43 For general discussion on the increasing tendency for multilateral intervention in armed conflicts for the protection of civilians, see Sarkin, Jeremy, The Role of the United Nations, the African Union and Africa's Sub-Regional Organizations in Dealing with Africa's Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect, 53 J. Afr. L. 1 (2009)CrossRefGoogle Scholar; Evans, Gareth, The Responsibility to Protect: Ending Mass Atrocity Once and for All (2008)Google Scholar; Chesterman, Simon, Just War or Just Peace? Humanitarian Intervention and International Law (2001)Google Scholar; Human Security and the New Diplomacy: Protecting People, Promoting Peace (McRae, Rob & Don Hubert, eds., 2001)Google Scholar.

44 Fleck supra note 1, at 685.

45 Europe in the World: Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, supra note 36, para 2.

46 Hoffmeister, supra note 13, at 37.

47 For an exploration of the tendency to somewhat merge the two in the communications of the EU, see Desgagné, Richard, European Union Practice in the Field of International Humanitarian Law: An Overview, in The EU and the International Legal Order: Discord or Harmony? (Kronenberger, Vincent ed., 2001)Google Scholar.

48 Guidelines on Children and Armed Conflict, http://europa.eu/legislation-summaries/human_rights/human_rights_in_third_countries/r10113_en.htm.

49 See Javier Solana, Building Stronger Children, Building Stronger Societies, http://www.unicef.org/rightsite/364_567.htm.

50 TEU, supra note art. 21(1).

51 Id. art. 21(2)(b) (emphasis added).

52 “A Secure Europe in a Better World: European Security Strategy” (European Council, Brussels December 2003). Security and the rule of law are also “indispensible preconditions for development and long-term stability,” see “European Security Strategy and ESDP” P6_TA (2009)0075, European Parliament Resolution of 19 February 2009 on the European Security Strategy and ESDP (2008/2202(INI)) para. 22.

53 Statement by Patrícia Galvão Teles, Department of Legal Affairs Ministry of Foreign Affairs of Portugal on behalf of the European Union, United Nations 62nd Session of the General Assembly, 6th Committee, Agenda Item 86. Rule of law at the national and international levels (New York, 25 October 2007), http://www.eu2007.pt/NR/rdonlyres/65C9673F-C3DB-4619-8A4E-A51 CBE685874/0/7_20071127Statement6CRULEOFLAWATTHENATIONALANDINTERNATIONALLEVELS.pdf. For an overview and appraisal of the missions generally, see A Responsibility to Assist: Human Rights Policy and Practice in European Union Crisis Management Operations (Hadden, Tom ed., 2009)Google Scholar.

54 For example in 2010 the EU launched a mission including such training, see factsheet: “EU military mission to contribute to the training of the Somali Security Forces” (EUTM Somalia) April 2010 EUTM/04, http://consilium. europa.eu/showPage.aspx?id=1870&lang=en.

55 Statement by Galvão Teles, supra note 53. These shall be discussed further below in relation to specific measures provided by the Guidelines.

56 The EU is an important actor in the provision of humanitarian aid supplying 40% of official aid internationally, see Zielonka, Jan, Europe as a Global Actor: Empire by Example?, 84 Int'l Aff. 474 (2008)Google Scholar. For a discussion of the EU's provision of aid in this respect, see Versluys, Helen, European Union Humanitarian Aid: Lifesaver or Political Tool?, in Europe's Global Role: External Policies of the European Union (Orbie, Jan ed., 2009)Google Scholar.

57 See Lebanon: EU Commission launches aid decision for Є10m and urges all to respect humanitarian law (July 20, 2006),http://www.eu-un.europa.eu/articles/fr/article_6130_fr.htm.

58 See, e.g., EU Commission on recent attacks on aid workers and tourists in North Uganda and Southern Sudan (Nov. 9,2005), http://www.europa-eu-un.org/articles/en/article_5266_en.htm.

59 See Increasing Pressure on the Humanitarian Space Worldwide: Louis Michel and John Holmes Sound the Alarm (June 22,2009), http://www.europa-eu-un.org/articles/en/article_8811_en.htm; the “humanitarian space” “that is needed to ensure access to vulnerable populations and the safety and security of humanitarian workers must be preserved…based on respect for the principles of neutrality, impartiality, humanity and independence of humanitarian action, enshrined in International Law, in particular International Humanitarian Law,” as noted in The European Consensus on Humanitarian Aid: Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission, 2008 O.J. C25/1, para. 3.

60 “The European Union is one of the world's biggest donors of humanitarian aid. It also promotes respect for, and adherence to, International Humanitarian law,” see Report from the Commission to the Council and the European Parliament: Annual Report on Humanitarian Aid Policy and its Implementation in 2009 SEC(2010)398, COM(2010)138 (Brussels 09 April 2010); the European Consensus on Humanitarian Aid states that the “EU will advocate strongly and consistently for the respect of International Law, including International Humanitarian Law … The EU is committed to operationalizing these Guidelines in its external relations,” see The European Consensus on Humanitarian Aid, supra note 60, para. 16.

61 See The European Consensus on Humanitarian Aid, supra note 59, para 18. For an exploration of these linkages and the implications of such see Bryer, David and Cairns, Edmund, For Better? For Worse? Humanitarian Aid in Conflict, 7 Development in Practice1 363 (1997)CrossRefGoogle Scholar.

62 Lynch, Dov, Communicating Europe to the World: What Public Diplomacy for the EU?, Working Paper No. 21 Eur. Policy Centre 11 (Nov. 2005)Google Scholar.

63 Cremona, supra note 36, at 9. On the role of EU law in promoting coherence in the external action of the EU, see Christophe Hillion, Tous pour un un pour tous! Coherence in the External Relations of the European Union, in Cremona, supra note 36.

64 Europe in the World: Some Practical Proposals for Greater Coherence, Effectiveness and Visibility supra note 36, para. 4.

65 An example is the creation of the position of High Representative of the Union for Foreign Affairs and Security Policy, a post first filled by Baroness Catherine Ashton, and the subsequent establishment of the European External Action Service.

66 Europe in the World: Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, supra note 36, para. 5.

67 COJUR was created under the auspices of what was originally called the Political Committee (it has been known as the “Political and Security Committee” since entry into force of the Nice Treaty on Feb. 1, 2003). A Decision of the Political Committee of 20 March 1990 stated that the Political Committee “recalls the decision taken at its 182nd meeting whereby public international law experts could meet as the need arises on an ad hoc basis,” and a Decision of the Political Committee of 24th February 1998 declared that the Political Committee “took note of the recommendations of the Group and of its readiness to give operational impulses in the field of international law and will have recourse to it when it considers it necessary,” see ‘CFSP Guide: Compilation of Relevant Texts’, Council of the European Union, 10898/08 (June 18, 2008), and for a general discussion of the working group, its creation and activities, see Hoffmeister, supra note 13, at 51.

68 See full details on the activities and functions of the Political and Security Committee at http://europa.eu/legislation_summaries/foreign_and_security_policy/cfsp_and_esdp_implementation/r00005_en.htm.

69 See Verwey, Delano V., The European Community, The European Union, and the International Law of Treaties 130 (2004)Google Scholar: the information relating to COJUR was obtained through personal interviews with the Legal Services of the Commission and the Council in the period November-December 2003.

70 See Hoffmeister, supra note 13, at 51.

71 Id.

72 Id. As Hoffmeister surmises, member states “may simply proceed to an exchange of information, which may have an impact on their national practice … the simple exchange of information may trigger a dynamic where individual Member States put a certain topic on their political agenda which could otherwise be of less priority” (see supra note 13, at 51).

73 As noted by Hoffmeister, id. The ICRC has also praised Sweden's role in relation to the Guidelines, given that Sweden held the Presidency during the relevant period, see Press Release, ICRC, European Union: Brussels Conference Marks 60th Anniversary of Geneva Conventions (September1 6,2009).

74 Council of the European Union, I/A Item Note, from the PSC to COREPER/Council, Guidelines on the Promotion of International Humanitarian Law, Doc 15246/05 (Brussels, Dec. 5,2005).

75 European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL) (2005/C 327/04), 2005, O.J. C 327/4.

76 For a brief discussion of the relevance of the Guidelines to the legal framework governing the conduct of EU forces on the ground, see Falco, supra note 16, at 199-200.

77 See Updated European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL) (2009/C 303/06), 2009, O.J. C 303/12 para. 2 and n2 [hereinafter Updated EU Guidelines on promoting compliance with IHL].

78 Id. para. 15(a).

79 Id. para. 15(b).

80 Id. para. 15(c)

81 Id. para. 16, (a)-(i).

82 Id. para. 16(a).

83 EU Presidency Statement, Status of Protocols Additional to the Geneva Conventions (before the Sixth Committee Legal Affairs), New York, Oct. 19, 2006, http://europa-eu-un.org/articles/en/article_6382_en.htm.

84 The Fact-Finding Mission was set up pursuant to Council Decision 2008/901/CFSP of 2 December 2008 concerning an independent international fact-finding mission on the codict in Georgia, 2008, O.J. L 323/66. An evaluation of the application of humanitarian law to the codict and of alleged violations of humanitarian law committed on both sides can be found in the report issued by the Mission, see Independent International Fact-Finding Mission on the Conflict in Georgia: Report, http://www.ceiig.ch/Index.html.

85 EU Presidency Statement, Status of Protocols Additional to the Geneva Conventions, supra note 83.

86 Id.

87 European Parliament Resolution on Support for the Geneva Conventions of 12 August 1949 and International Humanitarian Law, 2000, O.J. C377/335.

88 The European Union and the International Criminal Court (European Communities, Brussels 2008), http://www.iccnow.org/?mod=eu.

89 See Council Common Position 2003/444/CFSP of June 16, 2003 on the International Criminal Court; see also LP Groenleer, Martijn & Van Schaik, Louise, United We Stand? The European Union's International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol, 45 J. Common Market Stud. (2007)CrossRefGoogle Scholar.

90 See Council of the EU, Joint Statement of the European Union and its Member States and the United States of America on the Closure of the Guantanamo Bay Detention Facility and Future Counterterrorism Cooperation, based on Shared Values, International Law, and Respect for the Rule of Law and Human Rights, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressda/.../108455.pdf.

91 See Council of the European Union, EU-US and Member States 2010 Declaration on Counterterrorism, 3018th Justice and Home Affairs Council Meeting (June 3, 2010). See also Jackson, Richard, An Analysis of EU Counterterrorism Discourse Post-September 11, 20 Cambridge Rev. Int'l Aff. 233 (2007)CrossRefGoogle Scholar.

92 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 10.

93 Hoffmeister, supra note 13, at 104-05. The difficulties surrounding the classification of armed conflicts and the applicability of humanitarian law are often considered the “Achilles heel” of humanitarian law (see Pfanner, Toni, Editorial, 91 Int'l Rev. Red Cross 463(2009)CrossRefGoogle Scholar. These issues will not be dealt with at length here, the focus being on the other core weaknesses of implementation and enforcement. For a thorough examination of the legal aspects of categorizing armed conflict, and issues of classification for the purpose of determining the applicability of humanitarian law, see Issue no. 873,“Typology of Armed Conflicts” 91 Int'l Rev. Red Cross; and also Cullen, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law (2010)CrossRefGoogle Scholar.

94 Council of the European Union, EU Priorities for the 64th GA of the UN, 10809/09, Brussels (June 9,2009) para. 28.

95 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(b).

96 Council of the European Union, Declaration by the Presidency on behalf of the European Union on the Occasion of the 60th Anniversary of the adoption of the four Geneva Conventions of 1949, 12535/1/09 REV, Brussels (Aug. 12, 2009).

97 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(c).

98 Declaration by the Presidency on behalf of the European Union on the deteriorating security situation in Yemen Council of the European Union, 12751/1/09 REV 1, Brussels (Aug. 27, 2009); Council of the EU, General Affairs and External Relations, 2971st External Relations Council Meeting, Press Release 14658/09, Brussels (Oct. 27,2009) Council Conclusions on Yemen; European Parliament Resolution on the situation in Yemen, para. 5 (adopted Feb. 10, 2010), http://www.europarl. europa.eu /sides/getDoc.do?type=TA&reference=P7-TA-2O10-0017&language =EN&ring=B7-2010-0023.

99 Council of the European Union, India-EU Joint Statement: New Delhi, Nov. 30,2007, 16029/07, Brussels (Nov. 30, 2007) para. 18; Council of the European Union, 2925th Council Meeting, General Affairs and External Relations: General Affairs, 6728/09 Council Conclusions on Sri Lanka, Brussels (Feb. 23, 2009).

100 Council of the European Union, Council Conclusions on Sudan, 2879th External Relations Council meeting, Luxembourg (June 16 & 17, 2008); Council of the European Union, Declaration by the Presidency on behalf of the European Union following the ICC decision concerning the arrest warrant for President Al-Bashir 7200/1/09 REV 1 P029/09, Brussels (Mar. 6, 2009).

101 Council of the European Union, Council Conclusions on Burma/Myanmar, 3009th Foreign Affairs Council meeting (Luxembourg, 26 April 2010); European Parliament Resolution of 20 May 2010 on the situation in Burma/Myanmar, provisional edition, http://www.europarl.europa.eu/sides/get Doc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0196+0+DOC+XML+V0//EN.

102 Council of the European Union, 2958th Council meeting, General Affairs and External Relations: General Affairs, 12354/09 Council Conclusions on Somalia, Brussels (July 27,2009).

103 Council of the European Union, Press Release, Extraordinary meeting, General Affairs and External Relations, 12453/08 Conclusions on the situation in Georgia (Brussels, Aug. 13,2008).

104 For declaratory statements issued prior to the adoption of the Guidelines, see Ferraro, Tristan, Le Droit International Humanitaire dans la Politique Étrangère et de Sécurité Commune de l'Union Européenne, 84 Int'l Rev. Red Cross 435 (2002)CrossRefGoogle Scholar.

105 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(d).

106 TEU, supra note 10, art. 21.

107 “The Council is committed to using sanctions as part of an integrated, comprehensive policy approach which should include political dialogue, incentives, conditionality and could even involve, as a last resort, the use of coercive measures in accordance with the UN Charter”: Council of the European Union, Basic Principles on the Use of Restrictive Measures (Sanctions) 10198/1/04 REV 1, Brussels (June 7, 2004) para. 5.

108 Id. para. 6.

109 European Commission, External Relations: Sanctions, http://ec.europa.eu/external_relations/cfsp/sanctions/docs/index_en.pdf#1.

110 Types of sanctions the EU can apply include diplomatic sanctions, suspension of cooperation with a third country, boycotts of sport or cultural events, trade sanctions, financial sanctions, flight bans, and restrictions on admission. See Council of the European Union, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 15114/05, Brussels (Dec. 2,2005).

111 European Commission, Restrictive Measures (sanctions) in Force, http://ec.europa.eu/ external_relations/cfsp/sanctions/index_en.htm.

112 Although the study was published prior to the adoption of the EU Guidelines: Kreutz, Joakim, Hard Measures by a Soft Power? Sanctionspolicy of the European Union 1981-2004, Paper 45 Bonn International Center for Conversion 40 (2005)Google Scholar.

113 See Manners, Ian, Normative Power Europe: A Contradiction in Terms?, 40 J. Commom Market Stud. 235,245 (2002)Google Scholar. Sri Lanka, for example, was suspended from the GSP+ preferential trade scheme as a result of overreliance on emergency legislation and extensive restrictions on human rights, see Human Rights and Democracy in the World: Report on EU action July 2008 to December 2009 165 (May 2010)Google Scholar.

114 See, e.g., EU's Position on the Middle East Peace Process: Key Inconsistencies (September 2009), www.amnesty-eu.org/static/.../2009/EU_position_on_MEPP_-_paper.pdf.

115 In terms of the effectiveness of various forms of economic pressure on human rights compliance, see Hafner-Burton, Emilie M., Trading Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 Int'l Org. (2005)CrossRefGoogle Scholar; and Hazelet, Hadewych, Suspension of Development Cooperation: An Instrument to Promote Human Rights and Democracy?, 64B European Centre for Development Policy Management (Aug. 2005)Google Scholar.

116 For example the human rights conditionality associated with the process of accession to the EU, certain EU agreements, and in terms of the EU neighborhood policy.

117 See, e.g., Cohen, Amichai, Economic Sanctions in IHL – Suggested Principles, 42 Isr. L. Rev. 117 (2009)CrossRefGoogle Scholar; Kreutz, supra note 113; Reinisch, August, Developing Human Rights and Humanitarian Law Accountability of the Security Council for Imposition of Economic Sanctions, 95 Am. J. Int'l L. (2001)Google Scholar.

118 W. De Vries, Anthonius & Hazelzet, Hadewych, The EU as a New Actor on the Sanctions Scene, in International Sanctions: between words and wars in the global system (Wallensteen, Peter & Staibano, Carina eds., 2005)Google Scholar.

119 Updated EU Guidelines on promoting compliance with IHL, supra note 77, para. 16(e).

120 Id. para. 16(f).

121 As noted in an online guide to the human rights and humanitarian guidelines of the EU http://www.deluga.ec.europa.eu /en/policies.

122 See Exchange of Information, in the Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, art. 7,2006, O.J. L 115/50.

123 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(g).

124 Council Decision 2002/494/JHA, setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes, of June 13, 2002 O.J. L 167/1; Council Framework Decision 2002/584/JHA, on the European arrest warrant and the surrender procedures between Member States, of June 13. 2002, O.J. L 190 (July 18, 2002); and Council Decision 2003/335/JHA, concerning the investigation and prosecution of genocide, crimes against humanity and war crimes, of May 8, 2003, O.J. L 118/12. As the focus of this contribution is on external promotion and enforcement, violations committed by EU Member States' forces will not be addressed here. In relation to responsibility for violations committed in the context of EU missions, see Zwanenburg, Marten, Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations, in The European Union and Crisis Management: Policy and Legal Aspects (Blockmans, Steven ed., 2008)Google Scholar.

125 Council of the European Union, “EU Priorities for the 64th GA of the UN” 10809/09, Brussels (June 9, 2009) para. 26.

126 Id.

127 Whose duty is to advise COJUR on legal issues relating to the work of the ICC, see Groenleer, Martijn & Rijks, David, The European Union and the International Criminal Court: The Politics of International Criminal Justice, in The European Union and International Organizations 178 (Jorgensen, Knud Erik ed., 2009)Google Scholar.

128 See Groenleer, Martijn & Van Schaik, Louise, United We Stand? The European Union's International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol, 45 J. Common Market Stud. 969,982 (2007)CrossRefGoogle Scholar.

129 Although the support of the EU for the exercise of universal jurisdiction and alternate means of ensuring accountability may prove to be more important, bearing in mind that the ICC “is not and should not be regarded as a panacea”: Ronen, Yaël, ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities, 8 J. Intl Crim. Just. 3, 27 (2010)Google Scholar.

130 Also noted in an online guide to the guidelines of the EU, http://www.deluga.ec.europa.eu/en/policies/. For more detailed discussion relating to the support of the EU for the ICC and for the exercise of universal jurisdiction, see Ryngaert, Cedric, Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the Support of the European Union, 14 Eur. J. Crime, Crim. L. & Crim. Just. 46 (2006)CrossRefGoogle Scholar; Antoniadis, Antonis & Bekou, Olympia, The European Union and the International Criminal Court: An Awkward Symbiosis in Interesting Times, 7 Int'l Crim. L. Rev. 621 (2007)Google Scholar; Groenleer, Martin L.P. & Van Schaik, Louise G., United We Stand? The European Union's International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol, 45 J. Common Market Stud. 969 (2007)CrossRefGoogle Scholar; Geneuss, Julia, Universal Jurisdiction Reloaded? Fostering a Better Understanding of Universal Jurisdiction: A Comment on the AU- EU Expert Report on the Principle of Universal Jurisdiction, 7 J. Int'l Crim. Just. 945 (2009)CrossRefGoogle Scholar; and Wouters, Jan & Basu, Sudeshna, The Creation of a Global Criminal Justice System: The European Union and the International Criminal Court, Working Paper No. 26 Leuven Centre for Global Governance Studies (June 2009)Google Scholar.

131 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(h).

132 EU training activities on IHL include: an annual in-house seminar on IHL for EU staff and member State delegations (especially working parties in the areas of the CFSP and particularly the ESDP), and ICRC speakers in the margin of relevant working parties, e.g., in COJUR, as noted by Naert, Frederik, Instruction, Dissemination and Implementation of IHL in Peace Operations. An EU Perspective, 31st Round Table on Current Problems of IHL, Sanremo, Sept. 4-6, 2008, http://www.iihl.org/iihl/Documents /9729ipop.pdfGoogle Scholar.

133 Van Hegelsom, Gert-Jan, legal advisor of the Council of the European Union, International Humanitarian Law and Operations Conducted by the European Union 31st Round Table on Current Problems of IHL, Sanremo, Sept. 4-6,2008, www.iihl.org/iihl/Documents/9729ipop.pdfGoogle Scholar.

134 Id.

135 EU Joint Pledge P088, Public Dissemination of and Training on IHL, 30th International Conference of the Red Cross and Red Crescent, Nov. 26-30,2007Google Scholar.

136 See factsheet: EU military mission to contribute to the training of the Somali Security Forces (EUTM Somalia) April 2010 EUTM/04, http://consilium.europa.eu/showPage.aspx?id=1870&lang=en. For the legal basis of the training mission, see Council Decision 2010/197/CFSP of 31 March 2010, O.J. L 87/33.

137 Updated EU Guidelines on Promoting Compliance with IHL, supra note 77, para. 16(i). On the issue of arms exports in terms of ensuring respect for international humanitarian law, see Maya' Duty to Ensure Respect for Humanitarian and Human Rights Law, 12 J. Conflict & Security L. 21 (2008)Google Scholar.

138 Council Common Position 2008/944/CFSP of 8 December 2008 Defining Common Rules Governing Control of Exports of Military Technology and Equipment, 2008, O.J. L 335, Criteria 6(b); Member States shall also “deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law,” Criteria 2(c). This Common Position replaced the European Code of Conduct on Arms Exports.

139 For specific EU activities, see Ninth Annual Report on the implementation of the Council Joint Action of July 12, 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons (2002/589/CFSP), 2010, O.J. C 198/1.

140 See European Parliament resolution of 20 November 2008 on the Convention on cluster munitions (2010/C 16 E/12), 2010, O.J. C 16 E/61; Declaration by the High Representative Catherine Ashton on behalf of the European Union on the Convention on Cluster Munitions, Brussels (Aug. 1, 2010), http://www.consilium.europa.eu/uedocs/cms_data_docs/pressdata/.../116071.pdf.

141 Council Decision 2010/336/CFSP of 14 June 2010 on EU activities in support of the Arms Trade Treaty, in the framework of the European Security Strategy, 2010, O.J. L 152/14.

142 For a reasonably positive assessment of the EU's contribution, see Yihdego, Zeray, The EU's Role in Restraining the Unrestrained Trade in Conventional Weapons, 10 Ger. L. J. (2009)Google Scholar; for less positive evaluations, see Amnesty International, Undermining Global Security: the European Union's Arms Exports, ACT 30/003/2004 (Feb. 1, 2004).

143 See, e.g., Perkins, Richard & Neumayer, Eric, The Organized Hypocrisy of Ethical Foreign Policy: Human Rights, Democracy and Western Arms Sales, 41 Geoforum 247 (2010)CrossRefGoogle Scholar.

144 Solana, Javier, Preface, in EU Guidelines Human Rights and Humanitarian Law 5 (2009)Google Scholar.

145 Id.

146 Speaking Notes of Kellenberger, Jacob, Respect for International Humanitarian Law: A Major Challenge, a Global Responsibility European Parliament, Brussels (Sept. 16, 2008), http://www.icrc.org/web/eng/siteeng0.nsf/html/ihl-statement-160808Google Scholar.

147 Id.

148 Id.

149 Press Release, ICRC, European Union: Brussels Conference Marks 60th Anniversary of Geneva Conventions, Sept. 16, 2009.

150 Hoffmeister, supra note 13, at 100.

151 See TEU, supra note 10, art. 288 for the legal bases of regulations, directives, decisions, recommendations and opinions.

152 Frances Snyder has identified European “soft law” in this manner in her work on the European Union. As paraphrased by Dawson, Mark, Soft Law and the Rule of Law in the European Union: Revision or Redundancy?, EUI Working Papers RSCAS 2009/24 (2009)Google Scholar.

153 Address by Kellenberger, Jakob Current Challenges for International Humanitarian Law: How to Enhance Respect by Non-State Actors, Brussels (Sept. 17,2009), http://www.se2009.eu/.../Discours%20Kellenberger%20Brussels%202009%2009%2017.pdfGoogle Scholar.

154 For analysis of the EU's impact on third-party countries embroiled in conflict in the EU “neighbourhood,” see Nathalie Tocci, Comparing the EU's Role in Neighbourhood Conflicts, in Developments in EU External Relations Law, supra note 36, at 216.

155 It may be that a certain degree of selectivity in responding to conflicts and reported violations of international humanitarian law is unavoidable. See, e.g., Binder, Martin, The Selective Enforcement of Human Rights? The International Response to Violent Humanitarian Crises and Gross Violations of Human Rights in the Post-Cold-War Era, Discussion Paper SP IV 2007-307, Wissenschaftszentrum Berlin für Sozialforschung (2007)Google Scholar.

156 See Tocci, supra note 154 (discussing this aspect).

157 Council of the European Union, Council Conclusions on Promoting Compliance with International Humanitarian Law, 2958th Foreign Affairs Council Meeting (Brussels, 8th December 2009). The Council has reaffirmed, in these conclusions, its support for the promotion and protection of international humanitarian law and to this end adopted an updated version of the Guidelines. The publication of the Council Conclusions, it must be noted, coincided with the 60th Anniversary of the Geneva Conventions, and while adoption of the updated Guidelines represents a symbolic gesture of their continuing relevance, they contain no substantive improvements or additions.

158 Patten, Chris, “Sudan's Crimes against Humanity Need Real EU Action, Not Empty Words” The Irish Times, Mar. 28,2007, www.crisisgroup.org/en/regions/africa/horn-of-africa/sudan/sudans-crimes-against-humanity-need-real-eu-action-not-empty-words.aspxGoogle Scholar. The former commissioner also called the existing arms embargo “weak and ineffective,” and recommended a call for sanctions, travel bans and asset freezes on all the individuals named in the UN Commission of Inquiry and Panel of Experts Reports.

159 This individual was Riina Kionka, former Personal Representative of Javier Solana. See Human Rights and Democracy in the World: Report on EU action July 2008 to December 2009 26 (May 2010)Google Scholar.