EU’s plans to militarize aid face legal scrutiny in Parliament

Members of the European Parliament will decide Thursday if it is legal for the Commission to spend “peace-building” funds on strengthening the military in countries like Mali and Somalia, despite conflicting legal advice from the EU’s own lawyers.

Changes to the Instrument contributing to Stability and Peace (IcSP) — an EU fund worth €2.3 billion that disburses money for peace-building activities in conflict-ridden developing countries — are part of what the Commission says is an attempt to strengthen the EU’s ability to shore up the institutions of countries whose development has been hindered by violence.

To its critics, it’s a naked attempt to funnel scarce financial resources away from traditional aid projects to support the EU’s increasingly stretched military operations in sub-Saharan Africa.

EU governments and MEPs on the European Parliament’s Foreign Affairs Committee have already signed off on the content of the proposals, despite resistance from many left-wing politicians and member countries like Sweden.

The whole initiative may nevertheless be torpedoed if MEPs on the Legal Affairs Committee decide on Thursday that the proposal’s legal basis is faulty, an argument lawyers in both the Council of the EU and the European Parliament had made not long after the proposal was presented last year.

“The proposed regulation pursues objectives that predominantly fall within the scope of the [Common Foreign and Security Policy],” reads Parliament’s original confidential legal opinion, obtained by POLITICO. According to the opinion, the regulation “may therefore not be adopted under the legal basis [of development policy.]”

Council lawyers made a similar point, arguing in a separate legal opinion that “the proposal as it stands primarily pursues a security objective and not a development … objective.”

Within five months of the Parliament’s first legal opinion, however, the body’s lawyers had adjusted their position, arguing the proposal could fly because the military spending “can be seen, given the exceptional circumstances under which assistance is provided, as incidental and necessary for development.”

Despite the legal uncertainties, MEPs in the Foreign Affairs Committee voted 47 to 14 in favor of the proposal on Tuesday. “It is imperative to give the possibility to finance ‘civilian’ actions of the armed forces in fragile countries,” said French center-right MEP Arnaud Danjean after the vote, describing it as “the missing link” in the EU’s foreign policy.

‘Exceptional circumstances’

The draft law, which would also see an extra €100 million boost to the IcSP up to 2020, is at the heart of the Commission’s “capacity building in support of security and development” initiative.

“The link between security and development is a key underlying principle of the EU’s comprehensive approach to external conflicts and crises,” said a Commission document in 2015, citing EU missions involving military capacity-building in countries like Mali, Somalia and the Central African Republic.

Because the Lisbon Treaty bans EU funds from being spent on military operations, these missions are funded through the so-called Athena mechanism, a financing agreement struck up between EU governments in 2004.

Last year, a group of 10 EU countries, including France, Germany, Italy and Spain, demanded the Commission speed up its work to boost capacity building, describing in a paper obtained by POLITICO “the urgent need for action to develop the EU’s ability to work with partners to strengthen their civilian and military security sector.”

In the end, the Commission opted to allow IcSP funds to be spent on military actors “in exceptional circumstances,” despite concerns expressed by its own legal services about the legality of the move a year earlier in another confidential legal opinion obtained by POLITICO.

The decision followed an agreement in 2016 by the world’s largest aid donors at the Organization for Economic Cooperation and Development (OECD) over a new definition that said funds could be counted as development aid only if there weren’t any civilian actors able to do the same job or if the military actor in question was delivering humanitarian aid.

The Commission’s proposal goes further, however, by allowing financial assistance to be provided “if a consensus exists between the country concerned and the international community and/or the European Union that the security sector … are key for stability, peace and development.” There are some limitations: IcSP funds would not be spent on arms or ammunition or on combat training for soldiers.

Hilde Vautmans, a Belgian Liberal MEP who backed the proposal in the vote Tuesday, pointed to the initiative as a means to further the EU’s development goals. “We are not equipping third countries’ armies,” she said. “The EU will, within very strict and extraordinary situations, introduce a security and defense layer to the EU’s development missions.”

Aid overhaul

The link between ensuring security and poverty eradication — the primary objective of the EU’s development aid policy — has been hotly contested for years.

At the beginning of 2016, the U.N.’s Sustainable Development Goals came into force, updating the existing Millenium Development Goals (MDGs) agreed in 2000. “Without peace, stability, human rights and effective governance, based on the rule of law, we cannot hope for sustainable development,” reads the 16th goal on “peace, justice and strong institutions,” cited by the Commission as justification for the changes to the Instrument contributing to Stability and Peace.

“Sustainable development and poverty eradication require peace and security, and without sustainable development there will be no sustainable peace,” said Commissioner for International Cooperation and Development Neven Mimica when the draft law was launched last year.

Nevertheless, some policymakers disagree with how the peace goal is being used to justify spending aid on militaries. “When the [Sustainable Development Goals were] being negotiated, what was referred to in discussions over the nexus of security and development was very different from today’s discussions,” said Heidi Hautala, a Green MEP who was Finland’s international development minister when the new goals were being discussed. “Military capacities were hardly mentioned.”

Hautala, as well as many development NGOs, worry that the Commission, under pressure from EU governments, is increasingly linking its aid goals to other policy priorities, like migration management.

“Poverty reduction and sustainable development should drive European development cooperation, not domestic political and security priorities,” said Alexandra Rosén, a policy expert at CONCORD, a network of development NGOs.

MEPs on the Foreign Affairs Committee ultimately agreed to the Commission’s proposal, while stipulating that the new IcSP funds would not come from the EU’s development aid budget. They must now reach an agreement with EU governments before the changes come into force, something the Estonian presidency of the Council of the EU hopes to achieve before the end of the year.

CORRECTION: This story has been updated to correct the title of Neven Mimica.

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