Duty of Care of the EU and Its Member States towards Their Personnel Deployed in International Missions

• Author: Andrea de Guttry
• Pages: 263-294

263

Studi sull’integrazione europea, VII (2012), pp. 263-294

Andrea de Guttry*

Duty of Care of the EU

and Its Member States

towards eir Personnel Deployed

in International Missions

S: 1. Introduction. – 2. The notion of “duty of care” in domestic and international law: a

few general remarks. – 3. A better definition of the scope and content of the “duty of care”

through international case-law and selected soft law documents. – 4. The “duty of care” as a

corollary of the obligation of States (and of IOs) to protect the life of those within their juris-

diction or control. – 5. Who bears the consequences of the violation of the “duty of care”,

and what are they. – 6. What have the EU Institutions done so far to fulfill their “duty of care”

towards the personnel deployed in the field and what still needs to be done? – 7. Conclusions.

1. Over the last three decades, man-made, natural and technological disasters

have been increasing in terms of frequency, severity and material damage

caused. The number of those affected by these phenomena – i.e. individuals

requiring immediate emergency assistance such as protection, provision of food,

water, shelter, sanitation and immediate medical assistance – is worrying. This

has inevitably brought a proliferation of new actors ready to deploy multipur-

pose field missions: among them, the EU has undoubtedly become a major

provider of security and post-conflict reconstruction (mainly through CSDP

Missions)1, an active partner in delivering civil protection operations after natu-

* Ordinario di Diritto internazionale nella Scuola Superiore di Studi Universitari e Perfeziona-

mento “Sant’Anna” di Pisa.

1 EU’s role in providing security outside its borders in post-war and post-disaster settings is

rapidly expanding: in 2001, at the meeting of the European Council in Feira, Portugal, the Union

decided to develop the civilian aspects of crisis management in four priority areas: policing;

strengthening the rule of law; strengthening civilian administration; and civil protection. The spe-

cic capabilities in these four elds could be used in the context of EU-led autonomous missions,

or in the context of operations conducted by lead organizations, such as the UN or OSCE. The

emphasis on the active involvement of the EU in these operations was formally conrmed in the

consolidated version of the Treaty on European Union (2010). Article 42(1) of this Treaty states

that “The common security and defence policy shall be an integral part of the common foreign and

security policy. It shall provide the Union with an operational capacity drawing on civilian and

military assets. The Union may use them on missions outside the Union for peace-keeping, con-

Andrea de Guttry

264

ral or man-made disasters (EU Civil Protection Mechanism)2, and a major pro-

vider of humanitarian aid (through ECHO)3. The number of international per-

sonnel deployed in these missions has become impressive.

Regardless of a particular mission’s mandate, these operations are deployed

more and more often in countries which present serious security problems owing

to their instability, their political and economic situation or major health-related

risks. The issue of protecting the security, safety and health of the persons

deployed has become a key concern for the Organisation/State deploying them,

and not only for the hosting State, which in any case bears the main responsibil-

ity to protect international officers legally deployed on its territory4.

The concept of “duty of care” (sometimes also called “duty of protection”,

“due diligence”, “duty to safeguard the lives and the well being of the employ-

ees”, “framework for accountability”) has gained increasing interest among prac-

titioners, International (both universal and regional) Organizations as well as

ict prevention and strengthening international security in accordance with the principles of the

United Nations Charter. The performance of these tasks shall be undertaken using capabilities

provided by the Member States (…)”. The following Article 43(1) claries that “The tasks re-

ferred to in Article 42(1), in the course of which the Union may use civilian and military means,

shall include joint disarmament operations, humanitarian and rescue tasks, military advice and

assistance tasks, conict prevention and peace-keeping tasks, tasks of combat forces in crisis

management, including peace-making and post-conict stabilization (…)”. As of spring 2012, the

EU has 14 deployed missions in 3 continents: the number of personnel directly involved in these

eld operations is about 6,000. The purely civilian missions are 10 employing about 1800 person-

nel seconded by EU Member States and third States, about 500 contracted personnel, a limited

number of EU ofcers temporarily assigned to a mission, plus local staff. Very often the EU-led

missions are deployed in countries or regions with major security risks. See more on www.con-

silium.europa.eu/.

2 The EU Civil Protection Mechanism is made up of 32 States (27 EU Member States plus

Croatia, former Yugoslav Republic of Macedonia, Iceland, Liechtenstein and Norway) which co-

operate in the eld of civil protection to better protect people, their environment, property and

cultural heritage in the event of major natural or man-made disasters occurring both inside and

outside Europe. The cooperation can take the form of in-kind assistance, equipment and teams, or

involve sending experts to carry out assessments. It relies on government resources and, if assis-

tance is required in third countries, usually works in parallel with humanitarian aid.

3 The European Community Humanitarian Ofce (ECHO) was created in 1992 as an expression

of European solidarity with people all around the world. In 2004 it became the Directorate-General

for Humanitarian Aid before integrating Civil Protection in 2010 for better coordination and disaster

response inside and outside Europe. In 2010, Kristalina Georgieva was appointed as the rst dedi-

cated Commissioner for international cooperation, humanitarian aid and crisis response.

4 The concept that the hosting State has the primary responsibility to protect the members of

the international mission deployed in its territory is clearly stated in the “Convention on the Safe-

ty of United Nations and Associated Personnel”, 9 December 1994 (General Assembly resolution

49/59). The “2005 Optional Protocol” to this Convention further expands the scope of “opera-

tions” and thus makes it applicable to a larger number of staff. Article II(1) of the Optional Proto-

col expands the scope of the Convention to the following operations: “(a) Delivering humanitari-

an, political or development assistance in peace-building, or (b) Delivering emergency

humanitarian assistance”. See M. H. A, Convention on the Safety of U.N. and Associated

Personnel, United Nations Audiovisual Library of International Law, available at untreaty.un.org.

Duty of Care towards Personnel Deployed in International Missions

265

States involved in deploying personnel (civilian, police and military) to interna-

tional field operations (peace-keeping, peace-building missions, crisis-manage-

ment operations, humanitarian assistance, election observation, civil protection,

technical assistance, etc.). The specific duties associated with this concept

(regardless of the expression used in international practice to refer to it) are very

often described in a detailed manner in the legislation of several nations, although

mainly to address situations occurring within national borders or related to mul-

tinational companies deploying their personnel abroad. In UN or EU regulations

the concept has been, especially in the past, formulated in generic terms, if at all5.

More recently, the situation has changed significantly, owing to the continuous

effort to substantiate it and also to the contribution of case-law.

In Europe, the issue at stake poses some additional problems, owing to the

differentiated employment status of the personnel sent on mission (staff of the

General Secretariat of the Council and other EU Officials; national experts sec-

onded to European Institutions; personnel seconded by contributing Member

States or third States to a crisis management operation or to an EU Special

Representative – EUSR; and international and local staff contracted under the

authority of a Head of Mission, Operation and Force Commanders or EUSR)6.

It seems evident however that both EU Institutions in Brussels and Member

States share the same problem of enacting their “duty of care” protecting the

personnel sent into or to the field through proper mission planning which

includes preparation for any potential threats, sharing of information, protection

activities, risk minimising measures and appropriate training.

In this article, the author examines the current interpretation of the “duty of

care” and the obligation to protect life in the international legal system. He

defines the precise obligations of EU and its Member States at this regard, points

out what has been done so far to implement them and highlights the potential

consequences of violating these obligations. As most of the problems associated

with the notion of the “duty of care” are similar both for EU and its Member

States, and as they are intrinsically connected and sometimes difficult to address

separately, this investigation will take into account both situations.

2. According to a legal dictionary, “duty of care” is “[a] requirement that a

person acts toward others and the public with watchfulness, attention, caution,

and prudence that a reasonable person in the circumstances would. If a person’s

5 C. F. A, The Law of the International Civil Service: As Applied by International

Administrative Tribunals, I and II, Oxford, 1994.

6 The issue of proper protection of local staff by the recruiting Organization or State has at-

tracted increasing attention in practice and in the literature. According to a recent study, related

mainly to aid workers “[d]espite the fact that local staff make up over 90% of all eld workers they

tend not to gure highly in agencies’ security policies. The study found a signicant discrepancy

between local staff and internationals in their access to security-related training, brieng and

equipment”: see K. H, Duty of care? Local staff and aid worker security, in Forced Migration

Review, 2007, p. 10 ff., available at www.fmreview.org.