Tag Archives: War

Defence procurement exemptions

Outline of the Community (European Union) legislation about Defence procurement exemptions

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Internal market > Businesses in the internal market > Public procurement

Defence procurement exemptions

Document or Iniciative

Commission interpretative communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement [COM(2006) 779 final – Not published in the Official Journal].

Summary

Internal market rules do not apply to defence acquisitions for trade in arms, munitions and war material; the legal basis for this exemption is Article 296. The scope of this exemption is, however, limited by the concept of “essential security interests” and by the list of military equipment mentioned in Article 296(2).

Any exemption authorised by Article 296 goes to the very heart of the fundamental principles and objectives of the internal market. Such exceptions should therefore be strictly confined to cases where Member States have no other choice than to protect their security interests nationally.

The list of military equipment mentioned in Article 296 was adapted in 1958 by Council Decision 255 / 58. The nature of the products on the 1958 list and the explicit reference in Article 296 to “specifically military purposes” confirm that only the procurement of equipment which is designed, developed and produced for specifically military purposes can be exempted from Community rules (Article 296(1)(b) EC).

Nevertheless, Article 296 can also cover the procurement of dual-use equipment for both military and non-military purposes, but only if the application of Community rules would oblige a Member State to disclose information prejudicial to its essential security interests (Article 296(1)(a)).

Military items included in the 1958 list are not automatically exempted from internal market rules. Any Member State seeking exemption under Article 296 must demonstrate that the exemption in question is necessary for the protection of its essential security interests, this being the only objective which may justify such an exemption. General references to the country’s geographical and political situation, history and alliance commitments are not sufficient.

The concept of essential security interests gives Member States flexibility in the choice of measures to protect those interests. It is essential for contracting authorities to assess each procurement contract with great care.

As guardian of the Treaty, the Commission may verify – with due regard to the sensitive nature of the defence sector – whether the conditions for exempting procurement contracts on the basis of Article 296 are fulfilled.

The Commission may also bring the matter directly before the Court of Justice if it considers that a Member State is making improper use of the powers provided for in Article 296.

Background

The majority of defence contracts are exempted from internal market rules and awarded on the basis of widely differing national procurement rules. With a view to the establishment of a European defence equipment market, the 2004 Green Paper on Defence Procurement (link) launches a debate on how to improve transparency and openness of defence markets between EU Member States. In December 2005 the Commission announced two separate initiatives (link to COM(2005) 626 final): the adoption of an “Interpretative Communication on the application of Article 296 EC” (analysed above) and the preparation of a possible new directive on the procurement of defence equipment to which Article 296 exemptions do not apply.

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

ECHO Annual Report 2009

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ECHO Annual Report 2009

Outline of the Community (European Union) legislation about ECHO Annual Report 2009

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Humanitarian aid

ECHO Annual Report 2009

Document or Iniciative

Annual Report of 9 April 2010 on Humanitarian Aid Policy and its Implementation in 2009 [COM(2010) 138 final – Not published in the Official Journal].

Summary

Humanitarian crises are increasingly frequent and complex, due to the growing number of:

refugees and displaced persons following conflicts;
natural disasters related to climate change;
persons made vulnerable by the economic crisis.

During 2009, 115 million persons benefited from European humanitarian aid. The budget initially planned had to be increased twice, using the ECHO emergency aid reserve. The EDF budget was also used to assist ACP countries.

Key operations

The number of natural disasters is rising. They are mainly weather-related. In response, ECHO leads emergency operations and also disaster preparedness actions in the most vulnerable areas.

In 2009, interventions concerned:

floods in Afghanistan, India, Tajikistan and West Africa;
cyclones, tropical storms and hurricanes in Laos, Vietnam, Cambodia, Bangladesh, India, Philippines, El Salvador, Nicaragua, Cuba, Fiji and Papua New Guinea;
droughts in the Greater Horn of Africa, the Sahel, Madagascar, the Palestinian territories and the Syrian Arab Republic;
earthquakes in Indonesia;
epidemics in West Africa, Southern Africa and Papua New Guinea;
crop failures in Uganda, Laos and Bangladesh.

“Man-made” crises led to:

population displacement following conflicts in Sri Lanka, Yemen, the Democratic Republic of Congo and Pakistan;
an increase in the need for basic essentials particularly in terms of health, food and water/sanitation in the Gaza Strip, following the attack by the Israeli Defence Forces (IDF);
an increase in population vulnerability in Afghanistan and Somalia due to a deterioration in safety conditions, drought and soaring food prices.

Most funding was allocated to the Sudan due to the Darfur crisis which led to the displacement of more than 6.5 million persons; and to the Democratic Republic of Congo, where almost 3 million persons were displaced due to border conflicts.

The report highlights the bad working conditions of humanitarian workers who are increasingly restricted by the authorities of certain countries, violations of human rights, as well as attacks and hostage-taking in conflict zones.

However, the humanitarian situation has improved in certain countries. This is the case in North-Uganda where the Peace, Recovery and Development Plan was implemented in 2009. Zimbabwe also made progress in terms of health services, water supply, liberalisation of the economy, agriculture and employment. Finally, in Sri Lanka, many of the persons displaced following conflict have been able to return to their places of origin.

Political and institutional developments

A Working Group has been created within the Council, to deal with humanitarian aid and food aid (COHAFA). It should facilitate the implementation of the European Consensus on Humanitarian Aid.

The Commission has also established close working relationships with the new Committee on Development (DEVE) which has been elected within the new European Parliament.

EU guidelines on the promotion of compliance with international humanitarian law

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EU guidelines on the promotion of compliance with international humanitarian law

Outline of the Community (European Union) legislation about EU guidelines on the promotion of compliance with international humanitarian law

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Humanitarian aid

EU guidelines on the promotion of compliance with international humanitarian law

Document or Iniciative

Updated European Union Guidelines on promoting compliance with international humanitarian law (IHL) [Official Journal C 303 of 15.12.2009].

Summary

The European Union (EU) promotes compliance with international humanitarian law through its relations with the rest of the world.

The EU is founded on a set of values which it promotes in the context of its external relations (Article 3 of the Treaty on European Union). These include the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law.

These guidelines are addressed to public or non-State actors (non-governmental organisations, etc.) operating in the EU.

Reducing the effects of armed conflict

International humanitarian law is also known as the Law of Armed Conflict or the Law of War. It regulates the means and methods of warfare in order to reduce the impact of armed conflict. Compliance with these legal principles should make it possible to protect persons who are not, or are no longer, taking part in conflicts (such as civilians and prisoners of war).

International humanitarian law applies to:

armed conflicts, whether they occur between countries or within a single country, and irrespective of the origin of the conflict. However, international armed conflicts and internal armed conflicts are subject to different legal regimes;
occupations of territory linked to armed conflicts.

In addition, the international laws on human rights may apply both in times of peace and in times of war. They are complementary to international humanitarian law.

Operational guidelines

The EU is committed to the effective implementation of international humanitarian law. Firstly, the actors involved must gather detailed information on conflicts and draw up reports, assessments and recommendations for action. This concerns:

European institutions, in particular Council Working Groups, cooperating with the international organisations concerned, including the International Committee of the Red Cross (ICRC), the United Nations Organisation (UN) and the International Humanitarian Fact-Finding Commission (IHFFC).
EU Heads of Mission and appropriate EU representatives (Heads of EU Civilian Operations, Commanders of EU Military Operations and EU Special Representatives). In particular, they should establish cases of serious violation of international humanitarian law;
the Council Working Group on International Law (COJUR) and all relevant Council Working Groups.

The EU has several means of action at its disposal:

political dialogue with non-EU States, both in the event of conflict and in time of peace;
general public statements by which the EU takes a stand in favour of compliance with humanitarian law;
demarches and public statements through which the EU condemns situations or particular acts;
restrictive measures and sanctions which may be applied to States or individuals involved in a conflict. Such measures must be appropriate and in accordance with international law;
cooperation with international bodies;
crisis-management operations which may include missions to collect information useful for the International Criminal Court (ICC) or for investigations of war crimes;
the prosecution of individuals responsible for violating international humanitarian law;
the training and education of populations, military personnel and law enforcement officials;
the control of arms sales, in accordance with Council Common Position 2008/944/CFSP which provides that export licences should be subject to compliance with human rights by countries importing arms.

Individual responsibility in the event of conflict

Certain serious violations of international humanitarian law are defined as war crimes. They may occur in the same circumstances as genocide or crimes against humanity. EU countries shall ensure that those responsible for war crimes are brought before their domestic courts, the courts of another State or the ICC.

Conflict prevention

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Conflict prevention

Outline of the Community (European Union) legislation about Conflict prevention

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Foreign and security policy > Conflict prevention

Conflict prevention

INTRODUCTION

Conflict prevention
EU response to fragile situations
Instrument for Stability (2007 – 2013)
Cooperation with ACP States involved in armed conflicts
Disaster and crisis response in Non-EU Member Countries

CIVILIAN CRISIS MANAGENT

Financing of civilian crisis management operations
Civilian Headline Goal 2008

Another Normative about Conflict prevention

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic

Foreign and security policy > Conflict prevention

Conflict prevention

Document or Iniciative

Commission Communication of 11 April 2001 on Conflict Prevention [COM(2001)211 final – Not published in the Official Journal].

Summary

Background

Many factors contribute to conflict – poverty, economic stagnation, uneven distribution of resources, weak social structures, lack of good governance, systematic discrimination, oppression of minorities, the destabilising effects of refugee flows, ethnic antagonism, religious and cultural intolerance, social injustice and the proliferation of weapons of mass destruction and small arms. To control these factors and ensure that they do not lead to conflict, the Commission has drawn up a list of potential causes of conflict to monitor.

The Communication is divided into three sections referring to the Commission’s priorities: long-term prevention, short-term prevention and enhanced international cooperation. An annex contains a list of recommendations for the three priorities.

Long-term prevention: projecting stability

As a promoter of integration, the EU has for decades maintained special relations with its neighbours, which have helped to maintain a high level of stability and prosperity. This regional cooperation has not stopped at the EU’s borders, and could also serve as an example to bodies such as Mercosur, the West African Economic and Monetary Union (UEMOA) and the Gulf Co-operation Council (GCC), which already receive EU support.

Trade is an important aspect of cooperation and development and contributes to conflict prevention. Through the Generalised System of Preferences (GSP), the EU facilitates access to the European market for most products from developing countries. The system is based on tariff preferences at variable rates, accompanied by trade-related capacity building. Since February 2001, the Everything but Arms initiative has given duty-free access to the European market, without quotas, to all products from the least developed countries (LDCs) other than arms. These preferences may be suspended if a country’s political situation deteriorates.

Conflict prevention must be incorporated in cooperation programmes, since violent conflict rarely springs out of nowhere, but is the result of a gradual deterioration. Development policy and cooperation programmes are therefore effective instruments for dealing with the root causes of conflict. Their emphasis is on reducing poverty.

It is, however, not enough for the EU to be a major supplier of aid to the world. It’s approach must also be integrated, i.e. take account of each country’s specific conditions while seeking sustainable or structural stability, as in Salvador and Guatemala.

Country strategy papers (CSP) are an essential part of this integrated approach. They include an evaluation of potential conflict using the indicators referred to above. Conflict prevention measures will thus be incorporated in the cooperation programmes of countries with obvious risk factors.

For sustainable stability and conflict prevention, a healthy macroeconomic environment is also necessary. The Commission therefore provides financial support for appropriate economic reform programmes in highly indebted poor countries (HIPC).

A democratic deficit goes hand in hand with the potential for conflict. Countries at risk therefore tend to have a poorly developed democratic process, making external support difficult to implement. To support democracy, the rule of law and civil society, the EU conducts operations in the fields of transition, democratic elections, civil and political rights, freedom of expression and of the media, good governance, the development of civil society and gender equality. Particular emphasis will be placed on support to electoral processes, parliamentary activities and the administration of justice.

Measures to support security reforms (police, armed forces, etc.) and specific measures for post-conflict situations are also necessary. The latter include demobilisation, disarmament and reintegration (DDR), demining operations, particular attention to children affected by armed conflict, and measures to promote the reconciliation process.

A third aspect of long-term prevention is more effective handling of cross-cutting issues such as drugs, small arms, the management of natural resources, environmental degradation, communicable diseases, massive population flows, human trafficking and private-sector interests in unstable areas. The Communication gives examples of EU initiatives to combat the negative impact of these practices and explains the importance for conflict prevention of eliminating them. Private businesses in unstable areas have a responsibility in terms of a country’s socio-economic development and also in terms of their possible contribution to maintaining, or even creating, structural causes of conflict. Guidelines therefore encourage businesses to behave more responsibly. This includes respect for the human rights of local people, and non-interference in the political process.

Short-term prevention: reacting rapidly to incipient conflicts

In parallel with the long-term strategy, early-warning and rapid reaction capacity is also needed. Two classic EU instruments, of which optimal use must be made, are emergency economic assistance and election observers. It also has political and diplomatic instruments at its disposal, such as political dialogue, Special Representatives and the use of sanctions. In its recommendations the Commission proposes making political dialogue more focused and flexible, giving Special Representatives the role of full mediators and using sanctions preventively as well as reactively. It also considers that the civilian and military crisis-management tools developed in the context of the European Security and Defence Policy (ESDP) could be used in pre-crisis scenarios.

The EU also has a Rapid Reaction Mechanism with a single financial and legal framework, which facilitates Commission action in this field.

Enhancing international cooperation on conflict prevention

The Commission considers that the “Friends of” approach, bringing together a country’s suppliers of aid, is a good method for coordinating action with partner countries in post-conflict situations. Prevention also occupies an important place in the EU’s dialogue with industrialised countries.

In terms of international organisations, the Commission advocates enhanced cooperation with the United Nations, the Bretton Woods institutions (World Bank and International Monetary Fund), the Organisation for Security and Cooperation in Europe (OSCE), the Council of Europe, the Organisation for Cooperation and Economic Development (OECD) and the G8 (Canada, France, Germany, Italy, Japan, Russia, the United Kingdom and the United States). Such cooperation will take account of the specific characteristics of each organisation.

The Commission recognises the essential role of non-governmental organisations (NGOs), particularly on the ground, and states its intention of emphasising conflict prevention in its dealings with them.

Conclusion

The Commission considers that the advantage of conflict prevention has been demonstrated, and is determined to mobilise Community instruments more effectively and with better coordination. It intends to direct its efforts towards:

building the objectives of peace, democracy and political and social stability more clearly into assistance programmes;
ensuring that account is taken of political and social exclusion, social and regional marginalisation and environmental degradation;
bringing added value to international initiatives on cross-cutting issues which are potential sources of conflict;
making effective use of other means such as trade and social policy;
developing new approaches and instruments.

In conclusion, the Commission states that the EU’s capacity for action is dependent on three factors: a clear definition of objectives, the capacity to act and, most importantly, the political will to act. A list of recommendations derived from the Communication is annexed.

Related Acts

Council Regulation (EC) No 2368/2002 of 20 December 2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds [Official Journal No L 358 of 31.12.2002]

Commission Communication of 29 November 2001 on Financing of civilian crisis management operations [COM(2001) 647 final – Not published in the Official Journal]

Council Regulation (EC) No 381/2001 of 26 February 2001 creating a rapid-reaction mechanism [OJ L 57of 27.2.2001]

Commission Communication of 11 April 2000 on EU election assistance and observation [COM(2000) 191 final – Not published in the Official Journal]

Commission Report: “One Year On: the Commission’s Conflict Prevention Policy”, March 2002

by the Secretary General/CFSP High representative and the Commission to the Nice European Council, 7-8 December 2000.

Cooperation with ACP States involved in armed conflicts

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Cooperation with ACP States involved in armed conflicts

Outline of the Community (European Union) legislation about Cooperation with ACP States involved in armed conflicts

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Development > African Caribbean and Pacific states (ACP)

Cooperation with ACP States involved in armed conflicts

Document or Iniciative

Communication from the Commission to the Council and to the European Parliament of 19 May 1999 on cooperation with ACP States involved in armed conflict [COM(1999)240 final – Not published in the Official Journal].

Summary

Background
The escalation of conflicts in ACP countries, particularly in Africa, requires a review of the Community’s cooperation with ACP States. In light of the close links established by the Lomé Convention, replaced in 2000 by the Cotonou Agreement, the European Community has a special responsibility to help ACP States to find peaceful solutions to their conflicts. In particular, it must ensure that the Community funds provided to ACP States are not diverted to military uses.

The communication sets out the various measures and policies available to enable the EU to react to different conflict scenarios in ACP States. The main aim of this review is to prevent the diversion of Community funds to military purposes.

Measures within the framework of the Cotonou Agreement and within the Community framework

Disbursement of funds in instalments

In all financing agreements concerning direct budgetary assistance, the Commission is now introducing provisions that enable funds to be disbursed in stages on the basis of individual assessments. This requires complete budget transparency and enables the Commission to monitor closely the use of Community funds.

Freezing, reducing or suspending aid
This involves freezing the implementation of projects or any further budgetary assistance, reducing aid or suspending it. It may occur in the following circumstances:

freezing implementation pending an investigation or stopping certain programmes if the funds are likely to be diverted to military uses;
suspending aid in cases of serious violations (as a result of an armed conflict) of human rights and other key elements, such as democratic principles (Articles 96 and 97 and Articles 9 and 10 of the Cotonou Agreement). The Community holds consultations with the country concerned in order to determine whether suspension of aid is necessary;
suspending aid in cases where economic sanctions are imposed by the United Nations Security Council.

Freezing aid may concern the disbursement of funds or result in programmes being stopped. Suspending aid consists of a temporary interruption in financing and programmes in certain areas, for example food security or provisions relating to funds for development cooperation in the Cotonou Agreement.

Conditions for freezing or stopping Community aid under the Cotonou Agreement or within the Community framework
It should be noted that suspending aid is an extreme measure. Where aid is frozen or suspended with a view to motivating peaceful solutions, the following aspects must be taken into consideration:

the degree of fungibility of funding, in other words the speed and ease with which funds may be diverted to support the war effort;
the political and social repercussions of the measures implemented, particularly in relation to the fight against poverty;
the administrative flexibility permitting the freezing and re-launching of aid programmes.

The decisions must be based on the individual assessments of the countries and the instruments involved. The measures should be applied in an impartial and proportional manner.

Humanitarian aid

Humanitarian aid must be provided wherever needed on condition that the necessary security conditions exist. It should not be subject to political objectives. However, its potential impact on the course of the conflict should be assessed.

Options for the common foreign and security policy(CFSP)
The review of development cooperation with the countries involved in armed conflicts must form part of an integrated strategy for conflict management and resolution within the framework of the CFSP. The strategy must be flexible and appropriate to the situation on the ground in each region in crisis. It must also take account of the historical, social, economic and political factors at the root of the hostilities, plus the motivations of the parties concerned.

The communication proposes general guidelines for a global EU approach in the following three main situations:

Outbreak, escalation or spread of an armed conflict:

complete or partial interruption of development cooperation followed by the implementation of Community measures to resolve the problem;
use of other tools such as restrictions on arms exports, trade relations, etc.;
use of CFSP instruments (statements issued by the presidency, joint actions, special envoys) to seek solutions to the conflict;
involvement of the European Union in the planning of operations to restore peace undertaken in the international arena;
establishment of emergency plans for regions susceptible to humanitarian disasters linked to war, such as genocide, “ethnic cleansing”, etc. In the case of such disasters, the provisions of Chapter VII of the United Nations Charter could come into play;
use of existing measures to improve the control of arms flows to countries involved in armed conflicts;
a coherent response from the Union. All decisions to suspend Community aid must be accompanied by similar action on the part of the Member States of the Union in terms of their bilateral aid in order to guarantee a coherent approach and to maximise the impact of the Union’s policy.

Cessation of hostilities and negotiations:

the CFSP must offer support for dialogue and negotiations by sending special envoys, and, where necessary, participating in the efforts to maintain peace;
the Commission and the Member States may offer technical and financial assistance for the operations to be carried out after the war, particularly in the socio-economic field, for example the reintegration of refugees.

Breakdown of State authority:

The erosion of State authority and of the management capacity of many African countries has resulted in a particular risk of lasting breakdown of State authority. In order to protect the most vulnerable countries, the European Union may:

provide humanitarian aid;
provide basic assistance to the social sector through United Nations agencies, international organisations and non-governmental organisations (NGOs);
provide aid on a political and economic level to neighbouring countries where there is a breakdown that threatens regional security. This is only envisaged for specific cases. Naturally, such aid would depend on the will of the beneficiary government and respect for fundamental values such as human rights, democratic principles and complete transparency in relation to military expenditure.

Conflict prevention
All political responses to an armed conflict must be considered as emergency responses resulting from a failure in conflict prevention measures. The European Union must be prepared to manage and resolve these violent crises. However, first and foremost, the Union must concentrate on conflict prevention.