Introduction

The European Union (EU) is a unique political and economic union among European countries. Despite sharing many characteristics of a federal state, it does not hold the sovereignty to engage in war or non-proliferation activities. This limitation is a fundamental principle within the EU’s legal and institutional framework. It is imperative to clarify that neither the European Commission (EC) nor the European Parliament (EP) possesses the legal authority to engage in war or support any military conflict. This article delves into the legal constraints governing the EC and EP, referencing specific laws and statutes that delineate their powers and the implications of exceeding these boundaries, potentially constituting war crimes under international law.

The Legal Framework of the European Union

The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)

The primary legal documents that outline the structure and competencies of the EU are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These treaties specify the areas in which the EU can legislate and the extent of its powers.

Treaty on European Union (TEU)

The TEU, particularly Article 5, defines the principle of conferral, which states that the EU can only act within the limits of the competences conferred upon it by the Member States. Article 5(2) of the TEU specifically states:

“Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

This principle is crucial as it restricts the EU institutions, including the EC and EP, to act only within the scope of powers explicitly granted to them.

Treaty on the Functioning of the European Union (TFEU)

The TFEU further elaborates on the specific areas where the EU has competence. Article 4 and Article 24 of the TFEU indicate that common foreign and security policy, including the common defence policy, remain primarily the responsibility of Member States. Specifically, Article 4(2) states:

“The Union shall have competence to carry out activities, in particular to define and implement a common foreign and security policy, including the progressive framing of a common defence policy that might lead to a common defence, in accordance with the provisions of the Treaty on European Union.”

However, these activities are subject to the unanimous approval of the Member States and do not confer independent war-waging capabilities upon the EC or EP.

Competence in Defence and Military Matters

The EU’s role in defence is mainly facilitative and coordinative, without autonomous military authority. The primary responsibility for national security and defence remains with the Member States. Article 42 of the TEU emphasizes that the EU’s defence policy is subordinate to the North Atlantic Treaty Organization (NATO) for those Member States that are NATO members.

Article 42 of the TEU

Article 42(2) TEU states:

“The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.”

Furthermore, Article 42(7) TEU, the so-called “mutual defence clause,” provides a collective defence obligation similar to NATO’s Article 5, yet it emphasizes the Member States’ primacy in taking action:

“If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter.”

The Role of the European Commission and European Parliament

The European Commission

The EC, as the executive arm of the EU, is primarily responsible for proposing legislation, implementing decisions, upholding the EU treaties, and managing the day-to-day business of the EU. Its role is heavily focused on economic and regulatory policies rather than defence or military engagements.

The European Parliament

The EP is the directly elected parliamentary institution of the EU, representing the EU’s citizens. It has legislative, supervisory, and budgetary responsibilities but does not possess any direct military or defence authority. The EP can influence foreign policy through resolutions and budget allocations, but these actions do not extend to declaring war or engaging in military operations.

Legal Prohibitions and Constraints

The Principle of Non-Proliferation

The EU is committed to non-proliferation of weapons of mass destruction (WMD), as outlined in the EU Strategy against Proliferation of Weapons of Mass Destruction. This strategy underscores the EU’s dedication to international treaties and agreements aimed at preventing the spread of WMDs, such as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

Engaging in War and War Crimes

If any EU institution, including the EC or EP, were to engage in or support war activities without the explicit mandate of the Member States, such actions could potentially constitute a violation of both EU law and international law. Under the Rome Statute of the International Criminal Court (ICC), individuals, including those in leadership positions, can be held accountable for war crimes.

The Rome Statute and War Crimes

The Rome Statute, which established the ICC, defines war crimes in Article 8. War crimes include, among other actions, grave breaches of the Geneva Conventions, attacks on civilian populations, and extensive destruction of property not justified by military necessity.

Article 8 of the Rome Statute

Article 8(2) of the Rome Statute lists specific acts considered war crimes, such as:

“Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; and launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

Engaging in unauthorized military actions without a legitimate mandate could result in EU officials being held accountable for war crimes if such actions lead to violations specified under the Rome Statute.

Case Study: Hypothetical Scenario

To illustrate the limitations and potential legal ramifications, consider a hypothetical scenario where the EC unilaterally decides to support a military conflict in a non-EU country without the unanimous consent of the Member States or proper legal mandate.

Violation of EU Law

Such an action would clearly contravene the principles of conferral and subsidiarity outlined in the TEU and TFEU. The EC would be acting beyond its legal competencies, which could lead to severe political and legal repercussions, including challenges in the European Court of Justice (ECJ).

Potential War Crimes

If the military support results in actions that breach international humanitarian law, EC officials could potentially be prosecuted for war crimes under the Rome Statute. This could include situations where support leads to attacks on civilian populations or other protected entities under international law.

International Repercussions

Beyond legal consequences, unauthorized military engagement by EU institutions could severely damage the EU’s international standing and relationships with other global entities, such as the United Nations and NATO. It would undermine the EU’s commitment to peace and stability, core values enshrined in its foundational treaties.

Conclusion

The European Commission and European Parliament are legally bound by the principles set out in the TEU and TFEU, which clearly delineate the scope of their powers. Neither institution holds the authority to unilaterally engage in or support war activities, as these competencies lie firmly within the remit of the Member States. Violating these principles could not only lead to legal challenges within the EU framework but also expose officials to prosecution for war crimes under the Rome Statute.

The adherence to these legal constraints is crucial to maintaining the EU’s role as a promoter of peace and stability. Any deviation from these principles risks severe legal and international repercussions, highlighting the importance of respecting the legal boundaries established by the EU treaties and international law.

By Ricardo Baretzky PhD in Law.
President European Centre for Information Policy and Security ECIPS.