House of Commons - Documents considered by the Committee on 9 December 2009

Documents considered by the Committee on 9 December 2009 - European Scrutiny Committee Contents

20 The EU and Serbia

(a) (29213) 15616/07 + ADDs 1-2 COM(07) 743 (b) (29214) 15690/07 + ADDs 1-2 COM(07) 744 (c) (29427) — —	Draft Council Decisions on the signing and on the conclusion of the Stabilisation and Association Agreement between the European Communities and its Member States and the Republic of Serbia Draft Council Decision concerning the signing and conclusion of the Interim Agreement on trade and trade-related matters between the European Community and the Republic of Serbia Interim Political Agreement on Co-operation between the European Union and its Member States and the Republic of Serbia
Legal base		(a) and (b) Articles 300 and 310 EC; unanimity (c) —
Department		Foreign and Commonwealth Office
Basis of consideration		Minister's letter of 1December 2009
Previous Committee Reports		HC 19-xxvi (2008-09), chapter 21 (10 September 2009); HC 19-xxiii (2008-09), chapter 8 (8 July 2009); HC 19-ix (2008-09), chapter 11 (4 March 2009); HC 19-v (2008-09), chapter 16 (28 January 2009);HC 19-i (2008-09), chapter 17 (10 December 2008); HC16-xxiv (2007-08), chapter 15 (18 June 2008), HC16-xxi (2007-08), chapter 17 (14 May 2008), HC16-xii (2007-08), chapter 1 (20 February 2008) HC16-x (2007-08), chapter 4 (30 January 2008) and HC16-viii (2007-08), chapter 5 (16 January 2008); also see (26575) 8884/05: HC 34-i (2005-06), chapter 48 (4 July 2005); and (29103): 14999/07; (29104):15001/07; (29100):14995/07; (29099): 14993/07; (29101):14996/07; (29102):14997/07: HC 16-v (2007-08), chapter 1 (5 December 2007)
Discussed in Council		8 December 2009 General Affairs and External Relations Council
Committee's assessment		Politically important
Committee's decision		Cleared (debate on 29 April 2008); further information requested

Background

20.1 The Stabilisation and Association Process is the process devised by the EU to bring the countries of the Western Balkans closer to the EU and to help prepare them for eventual membership. The Stabilisation and Association Agreement (SAA) is a key step on the path to EU membership. It establishes a far-reaching legal relationship between the EU and the country concerned, entailing mutual rights and obligations; the gradual implementation of a free trade area; reforms designed to achieve the adoption of EU standards in areas such as justice, freedom and security, accompanied by formalised political dialogue; enhanced regional co-operation; and a Stabilisation and Association Council to supervise implementation.

20.2 The Commission completed negotiations for an SAA with Serbia on 10 September 2007. On 7 November 2007 Serbia and the Commission initialled the text of the Agreement.

The Council Decisions

20.3 The purpose of the first Council Decision is obtain Council approval to the text of the Stabilisation and Association Agreement and "to engage the procedures for the signature and final conclusion" of the Agreement.

20.4 The purpose of the second Council Decision is to authorise signature of an Interim Agreement (IA), comprising the Community competence elements (trade, agriculture, industrial and competition provisions of the SAA) at the same time as the SAA, to come into force as soon as possible after signature, to take account of the fact that ratification of the SAA may take up to a year following signature.

Previous consideration

20.5 Our previous consideration is detailed in our previous Reports. In brief, the Committee has been engaged in prolonged discussion with successive Ministers for Europe since January 2008 about signature of these Council Decisions and, given differences then obtaining among Member States on the signing of the Interim Agreement, an Interim Political Agreement. In the event, they were resolved among Member States in such a way that the 29 April 2008 GAERC approved the Council Decisions, whereupon the two agreements were signed. On the same day, European Committee B debated these documents and a collection of annual progress reports on the Western Balkan EU aspirants.[64]

20.6 As we have noted, we have had no concerns over the nature of the SAA or of its conclusion with Serbia per se: on the contrary; however, what had bedevilled this process all along was the behaviour of the Serbian authorities with respect to the International Criminal Tribunal for (former) Yugoslavia (ICTY). Although the ICTY had been prepared to indicate to the Commission and Council that cooperation had improved sufficiently to warrant continued negotiation and, latterly, initialling of a text, it was plainly not yet able to certify that "full cooperation" obtained. The Committee's concern has thus revolved around this associated ICTY Conditionality.

20.7 Our three most recent Reports summarise our discussion with the previous Ministers for Europe Caroline Flint and Baroness Kinnock of Holyhead, and in particular the former's letters of 4 December 2008 and of 16 and 18 February 2009 and the latter's letter of 30 June 2009. In essence, the Committee sought to understand the process whereby the Government shifted its position — first abandoning the requirement for full cooperation prior to signature of the SAA, and then abandoning it prior to implementation of the IA — and the then Minister sought to explain how this had happened. Following the 23 February 2009 GAERC meeting, the then Minister said that:

"There was an inconclusive discussion on the possibility of implementing Serbia's 'Interim Agreement' with the EU. I confirmed that, while the UK would be ready for the EU to recognise Serbia's significantly improved co-operation with the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague by allowing entry into force of Serbia's 'Interim Agreement', full co-operation with ICTY remains the condition set by the EU for ratification of Serbia's Stabilisation and Association Agreement with the EU."

20.8 The Government's position on this matter now being finally made clear, we looked forward to hearing more from the Minister as and when the situation changed — either within the confines of the Council or in the degree of cooperation by the Serbian authorities — and, in the meantime, given the degree of interest in the House in the western Balkans and in the degree of cooperation with the ICTY on the part of both prospective and aspiring Candidate countries there, we reported these further exchanges to the House.[65]

20.9 In her 30 June 2009 letter, the Minister (Baroness Kinnock of Holyhead) wrote about the discussions on Serbia's co-operation with ICTY at the General Affairs and External Relations Council (GAERC) on 15/16 June, as follows:

full

we envisage that the IA will be unblocked in due course by revisiting the existing GAERC conclusions on ICTY conditionality, rather than by a Council Decision

Our assessment

20.10 In her letter of 4 December last, the then Minister said that "Implementation of the Interim Agreement involves a further Council Decision, and is therefore subject to Parliamentary scrutiny". We therefore asked the Minister to explain why, and on what basis, it had now been decided to that "revisiting the existing GAERC conclusions" was an appropriate way to "unblock it". And why the Minister had underlined this sentence. All in all, the impression given was that, contrary to the assurances that we had received hitherto, the Government was seeking to move to the next stage and then announce the fact, so as to avoid having to explain the decision to do so ahead of time.

20.11 Given that the interim SAA contains all the Community competence elements (i.e., trade, agriculture, industrial and competition provisions) of the SAA, we also asked the Minister to explain what further Serbia would gain from the full SAA, i.e., what incentives would the Serbian authorities then have to make them move with greater determination — exercising "100 percent effort and political will" — towards full cooperation, as defined above, including locating and transferring remaining indictees, and in particular Ratko Mladic.

The then Minister's letter of 15 August 2009

20.12 In response to paragraph 20.10 above, the then Minister said:

"As you are aware, the April 2008 GAERC approved both Serbia's Stabilisation and Association Agreement (SAA) and its Interim Agreement (IA) through Council Conclusions. It adopted Council Decisions on the signing of the SAA and on the signing and conclusion of the IA.

"The minutes of the same GAERC record two further decisions accompanying its Conclusions. These are (i) that the ratification procedures of the SAA will begin as soon as the Council decides unanimously that Serbia fully co-operates with ICTY; and (ii) that Serbia's IA will be implemented as soon as the Council decides unanimously that Serbia fully co-operates with ICTY.

"I understand from discussions between my officials and the Community Institutions that unblocking the entry into force of the IA would take the same form as the original block imposed by the April 2008 GAERC Conclusions and minutes described above. It follows that, to unblock Serbia's IA, the Council would need to:

i) agree a set of Conclusions confirming its political will to unblock the IA; and

ii) take a unanimous decision, recorded in minutes, declaring that the IA should now be implemented. This would unblock the entry into force of the IA (the decision to conclude already having been taken, as set out above).

"I have taken note of the Committee's strong interest in this issue and will continue to keep it updated on developments."

20.13 In response to paragraph 20.11 above, the then Minister said:

"As you are aware, at Thessaloniki in 2003 the European Council agreed a 'membership perspective' for all the countries of the Western Balkans and confirmed that 'the pace of further movement of the Western Balkans countries towards the EU lies in their own hands and will depend on each country's performance in implementing reforms, thus respecting the criteria set by the Copenhagen European Council of 1993 and the Stabilisation and Association Process (SAP) conditionality'.

"In the context of the Western Balkans there is a clear expectation that aspirant members will conclude an SAA before applying for membership and that their track record in implementation will be taken into account when considering whether to open negotiations. The SAA has therefore become a key political stepping stone on the path to eventual accession to the EU.

"There are also substantive and technical advantages of the full SAA over the IA. The IA only covers specific (trade and trade- related) issues that fall within Community competence. The SAA will establish a comprehensive framework for the relationship between the EU and Serbia, entailing mutual rights and obligations. The SAA aims to support stability and the development of a market economy, regional cooperation and preparation for membership of the EU. It will thus focus on respect for key democratic principles and the core elements which are at the heart of the EU single market. SA Council and Committee meetings are designed to check the relevant country's progress in a wide range of areas and to help prepare the country, its institutions and legislation, to be better aligned with the acquis once accession negotiations are opened."

Our assessment

20.14 We found the Minister's response unconvincing. We had asked her to explain why her predecessor's view — that a further Council Decision would be required — was wrong; instead, we were again presented with an argument that, as we observed earlier, seemed designed to enable the Government to move to the next stage and then announce the fact, so as to avoid having to explain the decision ahead of time. In a nutshell, draft Council Decisions are subject to scrutiny: whereas, in spite of the Committee's efforts to persuade the Foreign Secretary to the contrary, draft Council Conclusions (presently) are not. We accordingly found it difficult to avoid the conclusion that the Minister was thus seeking to avoid prior scrutiny of an important decision by the Council.

20.15 We were equally unconvinced about the second part of the Minister's response. Most of it was cast in well-known terms, and otherwise failed to address at all the Committee's doubts as to what incentives the Serbian authorities would then have to move with greater determination, exercising "100 percent effort and political will", towards full cooperation — this having been defined as including locating and transferring remaining indictees, which most observers would expect to include Ratko Mladic. Given the way in which the Government's position had shifted (c.f. paragraph 20.7 above), a question mark thus continued in our view to hang over the commitment to the conditionality to which the Minister referred.

20.16 In our view, the House's interest is in being informed of what the Government proposes to do, and why, ahead of any decision, and not being "updated on developments" after the event. We therefore called upon the Minister to write to the Committee — before any "unblocking" Conclusions were agreed — to explain why such Conclusions were in prospect.

The Minister's letter of 1 December 2009

20.17 The Minister for Europe at the Foreign and Commonwealth Office (Chris Bryant) says that, as noted by his predecessor:

— "the Government's policy until now has been that the UK would be content to implement Serbia's Interim Agreement, on the basis of Serbia's significantly improved co-operation with the ICTY, while keeping ratification of the SAA conditional on Serbia's full co-operation with the ICTY;

— "the Government's view is that 'full co-operation' means committed and sustained activity from the Serbian Government, demonstrating 100 percent effort and political will in co-operating with ICTY — and that that co-operation covers efforts in a wide range of areas including: tackling support networks; meeting requests for documents; allowing access to archives; ensuring protection of witnesses; as well as in locating and transferring the remaining indictees."

20.18 The Minister notes that ICTY Prosecutor Brammertz was scheduled to deliver his next report on ICTY's completion strategy to the UN Security Council on 3 December, "just days before the 7/8 December GAERC (at which we expect Serbia's relationship with the EU, including in relation to progress on ICTY co-operation, to be discussed)." The Minister says that this report will include an annex on the co-operation of regional states with his office, including Serbia. It is, the Minister says, "Brammertz's most positive report on Serbia to date", assessing that:

— Serbia's co-operation has continued to improve and develop;

— the Serbian authorities are providing timely responses to requests arising during trials at The Hague for access to documents and archives, with no requests outstanding;

— they have responded quickly to facilitate the appearance of witnesses before the tribunal and made the necessary arrangements to safeguard them;

— they are actively conducting search operations for the two remaining indictees.

20.19 With regard to the central issue of cooperation, the Minister says that the report concludes that Brammertz is "satisfied" with the current level of efforts undertaken by the Serbian authorities.

20.20 Turning to the Committee's request in our Report of 10 September to be informed of any decisions ahead of any GAERC where Serbia's progress along the EU path may be discussed, the Minister says:

"The decision of whether or not Serbia is fully co-operating with the ICTY is one for individual member states to take. However as you are aware a unanimous decision is required by all EU Member State to implement the IA and ratify the SAA.

"Given the very short window between Brammertz's formal report to the UNSC on 3 December and EU discussion at the GAERC on 7-8 December, I wanted to inform the Committee that, provided Brammertz' report to the UNSC confirms his draft assessment, the Government will assess that Serbia is now fully co-operating with ICTY and therefore would be ready in principle to support an EU decision both to implement Serbia's Interim Agreement and also to start the process of SAA ratification. Our judgement is that this would [be] the right way to incentivise further sustained co-operation by Serbia. In doing so, we shall make clear to the Serbian Government, EU partners and Chief Prosecutor Brammertz that, should Serbia fail to maintain full co-operation at any stage during its EU accession process, we would be ready to support appropriate measures in response."

20.21 Subsequently, on 7 December 2009, the Government issued the Written Ministerial Statement that is reproduced at Annex 2 of this chapter of our Report.

20.22 Then, on 8 December, the Council adopted the following Conclusions:

Conclusion

20.23 We thank the Minister for this further information, which we are reporting to the House because of the widespread interest in the accession process in the western Balkans.

20.24 Only time will tell if the right decisions have been taken. And the Government has made it clear that, if thus "incentivised", the Serbian authorities fail to respond, it will respond appropriately.

20.25 We look forward to hearing further from the Minister in six month's time, which will presumably be after the ICTY Chief Prosecutor's next report.

Annex 1

"Report of Serge Brammertz, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia — May 2009

"Cooperation of Serbia

"30. Serbia has made additional progress in its cooperation with the Office of the Prosecutor.

"31. In the past six months, Serbia's assistance in terms of access to archives and the provision of documents continued to improve. Serbia provided timely responses to the large majority of requests for assistance from the Office of the Prosecutor and has addressed nearly all important outstanding requests. Serbia's National Council for Cooperation with the Tribunal successfully led these efforts. The Office of the Prosecutor encourages Serbian authorities to ensure that this trend remains stable and irreversible. Their assistance in this regard will remain of paramount importance during the upcoming senior leadership trials, including the Karadžiæ case.

"32. The Serbian authorities have responded adequately and in a timely manner to specific requests for assistance, particularly in facilitating the appearance of witnesses before the Tribunal. In specific cases, the Office of the Serbian War Crimes Prosecutor and Serbian security agencies promptly responded to requests to secure the safety of threatened witnesses by taking certain measures. As witness interference remains a serious problem and a matter of serious concern to the Office of the Prosecutor, it will continue to work closely with and rely upon the Serbian authorities when such cases are identified.

"33. The most critical area of concern regarding cooperation from Serbia remains the apprehension of fugitives Ratko Mladiæ and Goran Hadžiæ. Based on currently available information, the Office of the Prosecutor believes that both fugitives are within the reach of Serbian authorities.

"34. In this regard, the Office of the Prosecutor continues to follow closely the efforts of Serbian authorities to locate these fugitives and is regularly represented in coordination meetings of the Action Team in charge of tracking fugitives. During the Prosecutor's visits to Belgrade in April and May 2009, Serbian authorities fully briefed him on the security services' tracking efforts.

"35. Since the arrest of Radovan Karadžiæ, further progress has been made at the operational level. Serbia's National Security Council and the Action Team have taken steps to ameliorate the efficacy of ongoing operations and coordination between the different government services. These services appear determined and capable to locate and arrest the remaining fugitives. Complex and widespread search operations against fugitives and their support networks are taking place. Notwithstanding certain deficiencies in recent search and seizure operations, the professionalism of the government services in charge of tracking has generally improved. Along with ground operations, a thorough review and analysis of available information is now under way. Under the previous leadership of the security and intelligence services, crucial information that could have led to the apprehension of fugitives was not acted upon. As a result, the authorities are re-analysing all information previously available and verifying all possible leads.

"36. In order to achieve additional concrete positive results in the near future, the Serbian authorities must continue to provide all necessary support to the professional work done at the operational level. Therefore, the Government, its members and key officials should foster an atmosphere conducive to improved cooperation with the Office of the Prosecutor. Negative and unjustified statements calling into question the integrity of the International Tribunal are in this regard counterproductive and could have an adverse impact on Serbia's cooperation with the Tribunal."

Annex 2

7 December 2009: Written Ministerial Statement on Serbia's co-operation with the International War Crimes Tribunal for Former Yugoslavia (ICTY).

"The International War Crimes Tribunal for Former Yugoslavia (ICTY) Chief Prosecutor, Serge Brammertz, delivered his latest report on the ICTY completion strategy to the UN Security Council on 3 December. One of his key judgements was his very positive assessment of Serbia's co-operation with the ICTY. The Government warmly welcomes this assessment.

"The Government has long been amongst the strongest supporters of the ICTY, and of a clear policy of conditionality underpinning EU integration. It is important that all countries wishing to join the EU show their commitment to the rule of law and fully accept their responsibility to deal with the past, in particular by ensuring that all those indicted for the most serious of crimes face justice. EU member states have made it consistently clear that achieving and maintaining full cooperation with the ICTY is essential for progress towards EU membership.

"We have had many discussions with the Serbian authorities about this over recent years. We have not been slow, when we thought they were not doing enough, to make our views known.

"When the new Serbian Government took office last year, under President Tadic's leadership, we were encouraged by their public commitment to do everything necessary to conclude this process successfully. We have maintained close contact since then with those responsible for the investigations.

"I have previously made clear to this House that our assessment of full co-operation would be based on committed and sustained activity from the Serbian Government, demonstrating 100 per cent effort and political will in co-operating with ICTY. That co-operation should cover efforts in a wide range of areas including: tackling support networks; meeting requests for documents; allowing access to archives; ensuring protection of witnesses; as well as in locating and transferring the remaining indictees. The Government's assessment is that Prosecutor Brammertz's report shows this to be the case.

"We congratulate the Serbian authorities on this significant achievement. We are discussing with our EU partners how the EU should recognise this. We will remain in close touch with the authorities in Serbia to underline the importance of maintaining this sustained effort, including to track down and deliver the two remaining ICTY indictees, Ratko Mladic and Goran Hadzic."

64 See http://www.publications.parliament.uk/pa/cm200708/cmgeneral/euro/080429/80429s01.htm. for the record of that debate. Back

65 HC 19-ix (2008-09), chapter 11 (4 March 2009); see headnote. Back

66 Reproduced at Annex 1 to this chapter of our Report. Back

67 Part of the full "Council conclusions on enlargement/stabilisation and association process", available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/genaff/111830.pdf . Back