The European Union (EU) is a unique political and economic union between European countries. Despite sharing many characteristics of a federal state, it does not have the sovereignty to engage in war or non-proliferation activities. This limitation is a fundamental principle in the legal and institutional framework of the EU. It is imperative to clarify that neither the European Commission (EC) nor the European Parliament (EP) have the legal authority to engage in war or support any military conflict. This article examines the legal constraints governing the EC and the EP, referring to specific laws and statutes that delimit their powers and the implications of exceeding these limits, potentially constituting war crimes under international law.
The legal framework of the European Union
Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU)
The primary legal documents outlining the structure and powers 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, in particular Article 5, defines the principle of delegation, which states that the EU can act only within the limits of the powers conferred on it by the Member States. Article 5 paragraph (2) of the TEU expressly provides:
“Within the principle of attribution, the Union acts only within the limits of the powers conferred on it by the member states through the treaties in order to achieve the objectives established therein. Competences not conferred on the Union by the Treaties remain the responsibility of the Member States.”
This principle is essential because it limits the EU institutions, including the EC and the EP, to act only within the scope of powers that have been explicitly granted to them.
Treaty on the Functioning of the European Union (TFEU)
The TFEU further details the specific areas in which the EU has competence. Article 4 and Article 24 of the TFEU indicate that the common foreign and security policy, including the common defense policy, remains primarily the responsibility of the Member States. More specifically, Article 4 paragraph (2) provides:
“The Union has the competence to carry out activities, in particular to define and implement a common foreign and security policy, including the progressive development of a common defense policy which could lead to a common defence, in accordance with the provisions of the Treaty on European union.”
However, these activities are subject to unanimous approval by member states and do not confer independent EC or EP warfare capabilities.
Defense and military expertise
The EU’s role in defense is mainly facilitator and coordinator, with no autonomous military authority. Primary responsibility for national security and defense rests with member states. Article 42 of the TEU emphasizes that EU defense policy is subordinated to the North Atlantic Treaty Organization (NATO) for those member states that are NATO members.
Article 42 of the TEU
Article 42 paragraph (2) TEU provides:
“The common security and defense policy includes the progressive framing of a common defense policy of the Union. This will lead to a common defence, when the European Council, acting unanimously, so decides. In that case, it recommends to Member States to adopt such a decision in accordance with their respective constitutional requirements.”
In addition, Article 42(7) TEU, the so-called “mutual defense clause”, provides for a collective defense obligation similar to Article 5 of NATO, but emphasizes the primacy of member states in action:
“If a member state is the victim of armed aggression on its territory, the other member states have an obligation to aid and assist it by all means within their power, in accordance with Article 51 of the United Nations Charter.”
The role of the European Commission and the European Parliament
The European Commission
The EC, as the executive arm of the EU, is primarily responsible for proposing legislation, implementing decisions, upholding EU treaties and managing the EU’s day-to-day activities. Its role is largely focused on economic and regulatory policies rather than military or defense engagements.
European Parliament
The EP is the directly elected parliamentary institution of the EU, representing EU citizens. It has legislative, oversight, and budgetary responsibilities, but no direct military or defense 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 restrictions
The principle of non-proliferation
The EU is committed to the non-proliferation of weapons of mass destruction (WMD), as outlined in the EU Strategy against the proliferation of weapons of mass destruction. This strategy underlines the EU’s commitment to international treaties and agreements aimed at preventing the spread of WMD, such as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
Engagement in war and war crimes
If any EU institution, including the EC or the EP, were to engage in or support war activities without the explicit mandate of member states, such actions could constitute a breach of both EU 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.
Rome Statute and War Crimes
The Rome Statute, which established the ICC, defines war crimes in Article 8. War crimes include, among other actions, serious violations 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:
“Deliberately directing attacks against the civilian population as such or against individual civilians not directly participating in hostilities; and launching an attack knowing that such attack will cause accidental loss of life or injury to civilians or damage to civilian property which would be manifestly excessive in relation to the concrete and directly anticipated general military advantage.”
Engaging in unauthorized military action without a legitimate mandate could render EU officials liable for war crimes if such actions lead to violations specified in 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 member states or adequate legal mandate.
Breach of EU law
Such an action would clearly contravene the principles of attribution and subsidiarity enshrined in the TEU and the TFEU. The EC would be acting beyond its legal powers, which could lead to serious political and legal repercussions, including challenges at the European Court of Justice (ECJ).
Potential war crimes
If military support results in actions that violate international humanitarian law, EC officials could be prosecuted for war crimes under the Rome Statute. This could include situations where support leads to attacks on civilian populations or other entities protected under international law.
International repercussions
Beyond the legal consequences, unauthorized military engagement by the EU institutions could seriously damage the EU’s international status and relations 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 founding treaties.
Conclusion
The European Commission and the European Parliament are legally bound by the principles set out in the TEU and the TFEU, which clearly delineate the scope of their powers. Neither institution has the authority to unilaterally engage in or support war activities, as these powers are firmly within the purview of member states. Violation of these principles could not only lead to legal challenges within the EU, but could also expose officials to war crimes prosecution under the Rome Statute.
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 serious legal and international repercussions, underscoring the importance of respecting the legal limits established by EU treaties and international law.
By Ricardo Baretzky Ph.D.
President European Center for Information Policy and Security ECIPS.
