* By: Evan Harley Janssens
The European Union (“EU”) behaves as a unitary military power in international relations. It exercises material capabilities in various ways. One way is training states to kill insurgents who seek their destruction. Operations that bolster the state’s ability to maintain a monopoly of violence in its territory (“EU Training Missions” or “EUTM”) typically involve military capacity building, which is the practice of increasing a state’s military technology and knowledge. The EU’s goal in these operations is to systematically prepare state military forces to “assum[e] responsibility for countering internal security challenges, supporting and gradually replacing [the EU’s] external armed interventions.” This goal usually requires instruction on certain international laws.
Some scholars are worried about the disproportionate weight on military capacity building in EU Training Missions. Empirical research suggests that security sector reform (“SSR”) is undermined when capacity building dominates the mission calculus. Achieving “longterm SSR efforts,” such as “[e]stablishing the normative values of democracy and civilian control of the armed forces, alongside a functioning government system that allows the assertion of such control,” becomes less likely if EU Training Missions do not “make vital contributions to such efforts.”
Capacity building is not bad in and of itself—enhancing the set of offensive possibilities for a state pursuing survival in non-international armed conflict is important. But it alone is unlikely to lead to sustainable SSR gains.Indeed, absent SSR measures that restrain the use of force in accordance with postulates of due process and means of oversight, substantial capacity growth may increase the probability of state military actors violating duties of international humanitarian law and international human rights law during hostilities. A besieged state that acquires new advantages on the battlefield may very well use them in an indiscriminate, unlawful manner.
Against this backdrop of uncertainty, the administration of EU Training Missions presents enforcement issues with respect to the UN International Law Commission’s (“ILC”) Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (“DARIO”). Generally, DARIO is the secondary law that assists fora in adjudicating whether an international organization is liable for agential conduct that purportedly violates principles of international law. DARIO is infused with complex doctrine beyond the scope of this essay.
It is clear enough that DARIO articulates a set of rules that guides the resolution of possible controversies adjudicating the alleged responsibility of the EU in connection with foreign military trainees’ unlawful acts. As suggested above, unlawful acts of such agents could be infringements of primary obligations in the law of armed conflict and international human rights law.
But how might DARIO regulate questions of EU responsibility in which there are wrongful acts assertedly committed by military trainers who are organs of the EU? Specifically, is DARIO helpful in a circumstance whereby there is a showing that a EU military trainer failed to train other agents (i.e., the trainees) on their international duties?
A lawyer may stipulate that a failure to instill in trainees the meaning of norms in substantive bodies of international law is an omission. But there is no legal implication if the omission cannot be categorized as an internationally wrongful act.
In DARIO, an international organization does an internationally wrongful act “when conduct consisting of an action or omission: (a) is attributable to that organization under international law; and (b) constitutes a breach of an international obligation of that organization.” The fundamental corollary to the above is that “every internationally wrongful act of an international organization entails the international responsibility of that organization.”
Article 10 asserts that, “[t]here is a breach of an international obligation by an international organization when an act of that international organization is not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned.” In determining blameworthiness, “the rules of the organization” matter. An international obligation “may arise” from such rules, according to Article 10. The ILC clarifies, in Commentary to Article 10, that, “to the extent that an obligation arising from the rules of the organization has to be regarded as an obligation under international law,” its breach may carry international legal significance.
No doubt, international organizations can be responsible for an agent’s omission; as mentioned above, internationally wrongful acts subsume omissions. But if ‘failure to train’ is validly understood as an omission, is it legally relevant? That is to say, does it beget a legal consequence?
There is no primary duty in international law that obliges the EU to train state militaries. There are primary rules in international humanitarian law, and there are primary rules in the international conventions, state custom, and general principles of law that make up international human rights law. Subjects of these bodies of law fail to act in legally relevant ways because there are underlying obligations they are contravening.
If it were shown that EU inactions contributed to state actors’ (willful or negligent) nonconformity with primary rules, the fact is that there is no obligation that imposes a duty on the EU to perform training in other countries. Accordingly, ‘failure to train’ cannot be inferred to be a legally comprehensible omission by reference to the primary law because there is no positive obligation in it that prescribes that the EU deliver training to fragile states.
There has been little work done to ascertain what a legally relevant omission looks like for an international organization. In the absence of a Napoleonic matrix of primary duties that hyperregulates the deeds of such legal persons, there has to be a way to trace agents’ inactions (which are untethered to primary international law) to organization responsibility. What is the foundation of responsibility in this case if it is not primary law?
Most primary obligations in international law arguably do not rest with international organizations (they traditionally govern states). This claim has led one scholar to propound a view of “role responsibility” by which “the mandate of the organization,” or its raison d'être, serves as the glue between an omission and legal responsibility “without being able to point to directly applicable [primary] obligations.” This perspective aims to identify legally relevant omissions by focusing on what the mandate of the international organization objectively is.
A lawyer might ask whether there is a “function or mandate” in the international contracts that undergird the EU’s external-action institution that would ground the ‘failure to train’ omission in some underlying obligation that “flows directly from the function” of the international organization. In this manner, an omission to train state actors on the dictates of international norms is legally attributable to the EU because the inaction breaches an obligation stemming from the organizational function or mandate, not “a separate legal obligation contained in some primary obligation.” Alternatively, it may be plausible to infer the locus of the obligation in ‘the rules of the EU’ without invoking a purported function or mandate.
In light of evidence that military capacity building, the core feature of EU Training Missions, is insufficient to achieve SSR in fragile states, policing the implementation of material capabilities in internal armed conflict is vital. Unsurprisingly, the international lawmaking process would benefit from refinements in DARIO that focus on how to identify omissions that carry legal effect.
Evan Harley Janssens is a J.D. Candidate and Heyman Scholar at Cardozo School of Law. Evan is interested in capital-raising transactions, the federal securities laws, and general commercial litigation. Evan received a B.A., with distinction, from Cornell University.
 See Common Security and Defence Policy, European Union External Action, https://eeas.europa.eu/topics/common-security-and-defence-policy-csdp/431/the-common-security-and-defence-policy-csdp_en.  The EU “has undertaken many overseas operations, using civilian and military instruments in several countries in three continents (Europe, Africa and Asia), as part of its Common Security and Defence Policy (CSDP),” the military-political framework of external action, which guides EU policymaking objectives in world politics. See Military and civilian missions and operations, European Union External Action Service, https://eeas.europa.eu/headquarters/headquarters-homepage/430/military-and-civilian-missions-and-operations_en.  For example, these activities have encompassed “support[ing] … security sector reform in Iraq”; “advising, training and mentoring [of] Libyan [security services]”; multi-year training of armed forces personnel in Bosnia-Herzegovina; multilateral “advising and mentoring … of Somali National Army (SNA) personnel”; and “contribut[ing] to the improvement of the capabilities of the Malian Armed Forces” in order to “support the restoration of state control and the rule of law throughout Mali.” EU Advisory Mission in Support of Security Sector Reform in Iraq, https://eeas.europa.eu/csdp-missions-operations/euam-iraq_en. EU Border Assistance Mission in Libya, https://eeas.europa.eu/csdp-missions-operations/eubam-libya_en. EUFOR Multinational Battalion Trains with Armed Forces of BiH, http://www.euforbih.org/eufor/index.php/eufor-news/latest-news/2815-eufor-multinational-battalion-trains-with-armed-forces-of-bih. EUTM Somalia, https://www.eutm-somalia.eu/. EUTM Mali Mission, https://eutmmali.eu/en/eutm-mali-mission/.  The Organisation for Economic Co-operation and Development (“OECD”) defines capacity as “the ability of people, organizations and society as a whole to manage their affairs successfully.” OECD/DAC, 2006. The Challenge of Capacity Development. Working Towards Good Practice. DAC Guidelines and References Series. Paris: OECD. Page 12. Accordingly, it is ordinary to think of military capacity building as an iterative process of facilitating the effective management of modern military needs.  See generally Emma Skeppström, Cecilia Hull Wiklund & Michael Jonsson, European Union Training Missions: security sector reform or counter-insurgency by proxy? 24 Eur. Security 353, 354 (2015).  See, e.g., EUTM-Somalia, https://eeas.europa.eu/archives/csdp/missions-and-operations/eutm-somalia/index_en.htm (“[M]odules on international humanitarian law and human rights, and the protection of civilians are … delivered.”). “The mandate of EUTM Mali [for example] includes training in the fields of international humanitarian law, protection of civilians, and human rights.” Council of the European Union, 2013. Council Decision 2013/34/CFSP of 17 January 2013 on a European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali). Brussels: European Union.  “Fighting terrorism by proxy” creates an array of legal risks. See, e.g., Gorm Rye Olsen, Fighting terrorism in Africa by Proxy: the USA and the European Union in Somalia and Mali, 23 Eur. Security 290 (2014).  See generally Oya Dursun-Ozkanca & Antoine Vandermoortele, The European Union and Security Sector Reform: Current Practices and Challenges of Implementation, 21 Eur. Security 139 (2012). Broadly, SSR aims to “create a secure environment which is conducive to development, poverty reduction and democracy.” OECD/DAC, 2005. Security System Reform and Governance. DAC Guidelines and Reference Series. Paris: OECD. Page 5. According to the United Nations (“UN”), “security, human rights and development are interdependent and mutually reinforcing conditions for sustainable peace”; SSR endeavors to craft “effective, inclusive and accountable security institutions so as to contribute to [these conditions].” United Nations, Securing Peace and Development: The Role of the United Nations in Supporting Security Sector Reform, Report of the Secretary-General, A/62/659-S/2008/39, Jan. 23, 2008, 6. SSR policymaking usually resembles “measures aimed at rebuilding, restructuring and reforming the security apparatus and the relevant justice institutions” and “measures aimed at strengthening civilian management and democratic oversight of the security apparatus and the relevant justice institutions.” See Heiner Hanggi, Security Sector Reform, in Lexicon on Post-conflict Peacebuilding (Vincent Chetail, ed. 2007). These measures emphasize that, “[o]ne of the cornerstones of SSR is that security forces should not only be effective but also accountable and under civilian control, in consistence with democratic norms.” Supra note 5, at 358. No doubt, “[t]he mere act of ‘building’ military capacity does not guarantee that it is utilized in consistent with democratic norms.” Id. at 355.  For a study on unintended effects of military capacity building that hurt SSR causes, see generally Claes Nilsson & Kristina Zetterlund, Arming The Peace: The Sensitive Business of Capacity Building, Swedish Defence Research Agency, Sept. 2011, https://www.foi.se/rest-api/report/FOI-R--3269--SE. Unintended effects may include: ineffective civilian control; defection of military trainees; stubborn loyalty to warlords; and erosion in norms of accountability. See Ludovic Hood, Security Sector Reform in East Timor, 1999–2004, 13 Int’l Peacekeeping 60 (2006); Mark Sedra, Security Sector Reform in Afghanistan: The Slide Towards Expediency, 13 Int’l Peacekeeping 94 (2006); Eirin Mobekk, Security Sector Reform and the UN Mission in the Democratic Republic of Congo: Protecting Civilians in the East, 16 Int’l Peacekeeping 273 (2009); and Morten Bøås & Karianne Stig, Security Sector Reform in Liberia: An Uneven Partnership without Local Ownership, 4 J. Intervention & Statebuilding 285 (2010).  See supra note 5, at 359. Even though comprehensive SSR measures “lie outside the scope of” the EU Training Mission, and other EU operations focus more heavily on SSR aims, the experts argue that EU Training Missions ought to buttress SSR objects. Id.  Supra note 5, at 354-55. “In contrast [to SSR], capacity building missions targeting the defence sector remain more controversial. While the EU seeks to promote SSR through its foreign policy, previous research indicates that the type of military capacity building carried out by the EUTM missions under the common defence and security policy might potentially have damaging consequences for SSR (Nilsson and Zetterlund 2011). This is because the annals of external support to national militaries are rife with examples of unintended negative side effects, which tend to manifest themselves over the medium term to long term.” Id. For the above study, see Nilsson & Zetterlund supra note 9.  See Skeppström et al. supra note 11, at 358-59. “Within the specific mandate of the EUTM missions [which revolves around modern military management and capacity building], the activities focusing on accountability and civilian control therefore seem to be limited. Previous research shows that the lack of civilian control can have dire consequences.” Id.  Draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts, adopted by the International Law Commission, at its sixty-third session, at Geneva, Switzerland, from 26 April to 3 June and 4 July to 12 August 2011 in accordance with General Assembly Resolution 65/26 of 6 December 2010 [hereinafter DARIO]. “The adoption of the DARIO represents an enterprise of revolutionary implications for public international law and the future development of both international law and global relations and governance.” See Noemi Gal-Or & Cedric Ryngaert, From Theory to Practice: Exploring the Relevance of the Draft Articles on the Responsibility of Int’l Organizations (DARIO)—The Responsibility of the WTO and the UN, 13 German L. J. 511, 511 (2012).  In Hartian nomenclature, primary rules of international law “establish obligations” whereas secondary rules “consider the existence of a breach of an international obligation and its consequences.” See supra note 13, in General Commentary (3) of DARIO. The ILC claims that, “nothing in the draft articles should be read as implying the existence or otherwise of any particular primary rule binding on international organizations.” Id.  The vast majority of doctrinal underpinnings is not discussed here. For a scholarly view that the idea of international responsibility possesses a foundation in customary international law, see Moshe Hirsch, The Responsibility of Int’l Organizations Toward Third Parties: Some Basic Principles 8 (1995). For a persuasive argument that international responsibility is a general principle of law, see Mahnoush H. Arsanjani, Claims Against International Organizations, 7 Yale J. of World Pub. Or. 131 (1981).  For instance, the embrace of a liberalized ‘operational’ control test, in the Commentary to Article 7, makes it tenable to utter that the EU could be held legally responsible for state military actors’ violations of primary international obligations, if the facts and circumstances show control (“‘operational’ control would seem more significant than ‘ultimate’ control, since the latter hardly implies a role in the act in question.”). Moreover, even if control is unproven, DARIO clearly welcomes, in Article 8, the possibility of liability in connection with the ultra vires acts of an international organization’s organs or agents (“The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions.”). Article 2 defines “‘organ of an international organization’ [to] mean any person or entity which has that status in accordance with the rules of the organization,” irrespective of what it is formally named, and the term, “‘agent of an international organization’ means an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.” When we think of state military actors as being organs or agents, their commission of internationally wrongful acts is, in principle, traceable to organizational responsibility for the above reasons.  Article 4, DARIO.  Article 3, DARIO.  Article 10, DARIO.  “‘Rules of the organization’ means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization.” Article 2, DARIO. As per Article 6, agential conduct is presumptively attributable to the international organization if the organ or agent acts “in the performance of functions of that organ or agent” (which are normally understood in reference to the rules of the organization (“The rules of the organization apply in the determination of the functions of its organs and agents”)), notwithstanding circumstances that preclude wrongfulness (i.e., consent, self-defense, countermeasures, force majeure, distress, and necessity); Expectedly, there is no circumstance that precludes the wrongfulness of agential conduct that allegedly stems from noncompliance with a jus cogens, ‘non-derogable’ principle, or “an obligation arising under a peremptory norm of general international law.” See Articles 20-26, DARIO. For an introductory account of such norms, see David Wippman, Jeffrey Dunoff, Monica Hakimi & Steven Ratner, Int’l Law Norms, Actors, Process: A Problem-Oriented Approach 48.  Specifically, Article 10 expressly “includes the breach of any international obligation that may arise for an international organization towards its members under the rules of the organization.”  See Commentary to Article 10 of DARIO.  See Jan Klabbers, Reflections on Role Responsibility: The Responsibility of International Organizations for Failing to Act, 28 Eur. J. Int’l Law1133, 1134 (2017).  Klabbers demonstrates the point as follows: “Surely not all omissions are relevant; a refusal by the United Nations (UN) to organize the next soccer World Cup is probably not best seen as the sort of omission for which it could incur responsibility … but, in other situations, one may legitimately wonder. Can failure by the UN to intervene against climate change be seen as a legally relevant omission on its part? Can failure by the International Labour Organization (ILO) to address the plight of migrant workers be construed as a legally relevant omission? Since the UN Charter does not contain an obligation on the UN to address climate change, and the ILO Constitution likewise does not contain an obligation on the ILO to address migrant labour, the answer cannot be found by the simple deontological exercise of pointing to a positive obligation.” Id. at 1134.  See, e.g., Additional Protocol II to the Geneva Convention of 12 August 1949.  For an introductory overview on the various sources of international human rights law, see United Nations Human Rights: Office of the High Commissioner, https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx.  Supra note 24, at 1135.  Id. at 1135. “Specific legal literature on the notion of ‘omission’ in the law of responsibility is very rare, and discussions in the ILC when preparing the various sets of articles on responsibility are neither rich in detail nor in conceptualization.” Id.  “[W]hen primary rules offer no relief, one cannot simply look to the secondary rules for relief. See H.L.A. Hart, The Concept of Law (1961).” Id.at 1136.  Id.  Id. “ … [Holding organizations responsible by reason of their mandates] is not unique – individuals in high positions sometimes incur responsibility by virtue of their position (‘command responsibility’), and sometimes organizations benefit from their mandates in the absence of any directly applicable rights.” Klabbers sketches a preliminary analytic framework that posits, “an organization can be held responsible for not living up to its mandate, and that mandate will be defined in terms of the general (or main) function assigned to the organization. This is broad but not overly broad in light of the dominant approach to the law of international organizations. If the organization’s function or mandate can play a role in delimiting powers, or delimiting privileges and immunities, as is commonly thought, then it must also be deemed to have some analytical rigour in delimiting the relevant from the irrelevant omission for purposes of assigning responsibility.” Id. at 1137 (italics added).  Supra note 31.  This is the Common Security and Defence Policy. See supra note 2. Decades of formative treaty making following the conclusion of the Second World War birthed supranational innovations in military policymaking that cultivated the legal and political foundations of the Common Security and Defence Policy. For a general historicl understanding of international treaty commitments, see Shaping of a Common Security and Defence Policy, European Union External Action, https://eeas.europa.eu/topics/common-security-and-defence-policy-csdp/5388/shaping-common-security-and-defence-policy_en. The Common Security and Defence Policy mediates the international organization’s action and co-action as an integrated military power, or “global security actor,” in world politics. Supra note 1.  Supra note 31, at 1135.  Id. at 1137. If, assuming arguendo, a main purpose of the EU is to “take a leading role in peace-keeping operations, conflict prevention and in the strengthening of the international security,” role responsibility analysis could conceivably support the claim that ‘failure to train’ is a legally relevant omission. Supra note 1. In this way, the function or mandate of the EU could “form a useful yardstick.” Klabbers supra note 35, at 1138. The author “claim[s] that it might add clarity [to the problem of distinguishing legally relevant omissions from irrelevant ones] to think along the lines suggested in … [role responsibility analysis].” Id. at 1134.  Id. at 1135.  Recall that Article 10 says that a breach of an international obligation generally happens when an international organization is “not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned” (italics added). Additionally, the Commentary to Article 10 explains that international organization-created legal rules may become binding as a matter of international law on a case-by-case basis. Whether an obligation arising from the rules of the organization is ‘regarded’ as an international legal obligation is not so crucial as the point that a binding obligation exists from which a legally relevant omission is derived. This mirrors Klabber’s idea of role responsibility by which an obligation is inferable from the objective mandate of the organization (and that inference suffices for purposes of determining responsibility despite there being no primary obligation to speak of). But certainly if the organizational obligation ‘has to be regarded’ as an international obligation for some reason, Article 10 suggests that the consequence of its breach resides in the domain of international law. If a lawyer may permissibly argue that some obligation anchored in the ‘rules of the EU’ imposes a positive duty in, say, effecting conscientious training relations with state military actors in the broader maintenance of security objectives in destabilized countries, then, the ‘failure to train’ omission becomes, in principle, legally intelligible.