17 EU relations with Belarus
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| Council Decision concerning restrictive measures against certain officials of Belarus
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| Legal base | Articles 29 EU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 8 October 2010
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| Previous Committee Report | None; but see (31171) —: HC 5-iii (2009-10), chapter 17 (9 December 2009) ; also see (30507) — : HC 19-xiii (2008-09), chapter 10 (1 April 2009); also see (30076) —: HC 16-xxxiii ( 2007-08), chapter 5 (29 October 2008); and (27458) 8836/06 and (27459) — : HC 34-xxviii (2005-06), chapter 15 (10 May 2006)
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| To be discussed in Council | October 2010
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| Committee's assessment | Politically important
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| Committee's decision | Cleared; further information requested
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Background
17.1 The Belarus "Country Profile" on the Foreign and
Commonwealth Office website continues to catalogue a litany of
repressive and undemocratic behaviour since Alyaksandr Lukashenko
won the first Presidential elections in July 1994.[62]
The first three paragraphs read as follows:
"Belarus's human rights record since President Lukashenko
came to power in 1994 has been poor. A September 2006 report by
Adrian Severin, the UN Special Rapporteur appointed in 2004 by
the 60th UN Commission on Human Rights, was highly critical of
the situation. This is one of many reports to cite numerous human
rights violations including persistent accounts of harassment
of NGOs, the independent media, opposition political parties,
educational institutions, religious organisations, and trade unions.
"This pattern of repression has been particularly
evident in the build up to parliamentary and presidential elections,
when opposition figures were put under intense pressure and numerous
independent media outlets were suspended or closed.
"These concerns include the disappearance of
four opponents of the regime in 1999/2000, including former Belarusian
Interior Minister Yury Zakharenko and Viktor Gonchar, a deputy
of Belarus' 13th Supreme Soviet. Despite appeals from the international
community, the Belarusian authorities have not investigated satisfactorily
these disappearances. The EU repeatedly called on the Belarusian
authorities to open a truly independent investigation, but the
Belarusians failed to act. In response, in September 2004 the
EU decided to apply travel restrictions against those Belarusian
officials named in the Pourgourides report on 'Disappeared Persons
in Belarus' as key actors in the disappearances (this report was
adopted by the Parliamentary Assembly of the Council of Europe
in April 2004). Those subject to the restrictions include the
former Head of the Presidential Administration and current Head
of the Security Council, Viktor Sheiman, the former Minister for
Sports and Tourism, Yuri Sivakov, and the Minister of the Interior,
Vladimir Naumov. Since 2005 activists have maintained public awareness
of the disappearances, including through a monthly Day of Solidarity
since 16 September 2005, the anniversary the 1999 disappearance
of Gonchar and Krasoviski.
"Further sanctions were imposed following the
Presidential elections of March 2006. These failed to meet OSCE
standards. There was an arbitrary use of state power and widespread
detentions as well as a disregard for the basic rights of freedom
of assembly, association and expression. There was also violent
suppression of protests and the detention of peaceful protesters.
In response the EU decided to adopt restrictive measures against
President Lukashenko, the Belarusian leadership and officials
personally responsible for the violations of international electoral
standards. These measures took the form of a visa ban and an asset
freeze and were adopted in addition to those taken by the EU in
September 2004."
17.2 The EU measure were renewed the following September,
given that there had been no independent investigation into the
disappearances, nor any reform of the electoral code, in line
with OSCE recommendations, nor any concrete action to respect
human rights with respect to peaceful demonstrations: on the contrary,
the situation had continued to deteriorate.
17.3 At the 7 November 2005 and 30 January 2006 GAERCs,
EU Foreign Ministers stated their readiness to take restrictive
measures against those responsible if the Presidential election
in Belarus on 19 March was not conducted in line with OSCE and
other international standards. According to the OSCE/ODIHR International
Election Observation Mission, the Belarus Presidential election
failed to meet OSCE commitments; and, following the election,
peaceful demonstrations in Minsk were again forcibly broken up,
and demonstrators and opposition leaders arrested. The 24 March
2006 European Council accordingly agreed that the EU would take
restrictive measures against those responsible for the violation
of international electoral standards, including President Lukashenko.
At the 10 April GAERC, EU Foreign Ministers agreed to impose a
travel ban on 31 officials (in addition to the original six; Common
Position 2006/276/CFSP, repealing Common Position 2004/661/CFSP).
17.4 On 10 May 2006, the previous Committee cleared
amendments to Common Position 2006/276/CFSP and an accompanying
proposed Regulation, which imposed an assets freeze on those individuals
(plus an additional five) and on any person or entity associated
with them. The amendments also made some technical amendments
to the annexes to Common Position 2006/276/CFSP. Conditions for
releasing frozen assets were set out in the instruments.
17.5 Both the travel ban and assets freeze lists
included President Lukashenko. Common Position 2006/276/CFSP was
renewed by Common Position 2007/173/CFSP on 19 March 2007. On
7 April 2008 the Council adopted Common Position 2008/288/CFSP
extending the measures by 12 further months until 10 April 2009.
17.6 In so doing, the Council agreed that the restrictive
measures provided for by Common Position 2006/276/CFSP should
be extended for a period of 12 months, but that the travel restrictions
aimed at certain officials of Belarus — with the exception
of those involved in the 1999-2000 disappearances and the President
of the Central Electoral Commission — should not apply for
a reviewable period of six months, so as to encourage dialogue
with the Belarus authorities and the adoption of measures to reinforce
democracy and respect for human rights; at the end of this six-month
period, the Council would re-examine the situation in Belarus
and evaluate the progress made by the Belarus authorities on reforming
the Electoral Code to bring it into line with OSCE commitments
and other international standards and consider any other practical
action to strengthen respect for democratic values, human rights
and fundamental freedoms, including the freedom of expression
and of the media, as well as the freedom of assembly and political
association and the rule of law.
17.7 The previous Committee's most recent Report
outlines subsequent shifts in the EU position, as differences
emerged among Member States about how best to handle Belarus,
given the EU's concerns but also its concern that an increasingly
isolated Belarus would be drawn closer to an increasingly assertive
and difficult Russia (with unspoken anxieties about the gas supply
situation, where Belarus is a key link in the chain).
17.8 As that Report notes, the then Minister for
Europe (Caroline Flint) said there had been some signs that Belarus
might be interested in increasing its contacts with Member States
and willing to adopt a more moderate stance on other issues. The
release of its last three internationally recognised political
prisoners in late August 2008 met one of the 12 conditions for
engagement set out by the EU in the Commission document 'What
the EU could offer Belarus' published in November 2006.[63]
Meanwhile, President Lukashenko had promised that parliamentary
elections on 28 September would be free and fair. Whilst the initial
report by OSCE monitors does not support this (it said that the
elections failed to meet OSCE standards) Belarus was significantly
more co-operative in their interactions with OSCE monitors.
17.9 The then Minister said that this represented
less progress than she would have liked; but she shared the view
of other EU Member States that "isolating Belarus will not
promote further positive progress but rather focus the leadership
on strengthening their ties with Russia whilst failing to deliver
on EU demands." She therefore supported the EU consensus
in favour of suspending the visa ban for six months whilst renewing
the restrictive measures for a further 12 months, "backed
up by a strong statement from Council Members", as "the
approach most likely to encourage the Belarusians to make further
progress on the road toward human rights and democracy."
17.10 The then Minister went on to say that:
"We will continue to follow a path of critical
engagement ensuring Belarus understands that the process begun
by the General Affairs and External Relations Council (GAERC)[64]
must be sustained by further Belarusian steps. Whilst it is unlikely
that all 12 conditions for engagement will be met over the next
six months we expect to see some positive progress, particularly
in the areas of freedom of the media, civil society and elections.
In addition to pushing for the EU to set down clear modalities
measuring progress we will continue to deliver clear and firm
messages basing our demands explicitly on the EU's '12 Propositions.'[65]
"The lifting of the visa ban will enable us
to engage at senior levels and create personal incentives for
senior officials in Belarus, who will be keen to ensure that the
ban is not imposed again.
"The proposal gives Belarus a six month window
in which to demonstrate concrete improvements in human rights
and democracy. We hope that Belarus will make the most of this
opportunity to rebuild the relationship with the EU. If Belarus
fails to move toward the necessary reforms, it ensures that the
restrictions will be automatically re-imposed at the end of that
six month period. A unanimous decision will be required to extend
the decision by another six months."
The previous Committee's assessment
17.11 The previous Committee said that it was clear
from its examination in chapter 4 of the same Report of a similar
process, and change of approach, regarding another repressive
regime — in that case Uzbekistan[66]
— why it was somewhat sceptical of the notion of a "probationary
period" during which progress in relation to clear benchmarks
would determine whether or not a temporary suspension is made
permanent.
17.12 As with the revisions to the Common Position
on Uzbekistan, it was also concerned that it was effectively being
presented, not with a proposal to be scrutinised, but with a fait
accompli — a decision announced in the 13 October GAERC
Conclusions, followed by changes to the Common Position to give
it effect. So it asked the then Minister to explain the position
she had taken, and why she had handled the process in this way.
The first part of that evidence session (held on 4 February 2009)[67]
was devoted to a discussion out of which the Minister, in referring
to the six-month deadline, suggested "a conversation about
that before we get to the final stage of renewal or extension
of that package."[68]
The then Minister's letter of 9 March 2009
17.13 In a subsequent letter of 9 March 2009, the
then Minister reported that the EU had made clear its five priorities
— no new political prisoners, freer media, reform of electoral
code, liberalisation of NGO environment, and freedom of assembly
— and that the Belarusians had "refrained from flagrant
human rights abuses" and introduced "a number of small
reforms." But progress against the five priorities had been
mixed, the positive changes had not been systemic and could be
reversed and she was concerned by some negative steps in the immediately
preceding couple of weeks — including the arrest of three
human rights activists, two of whom had been recognised as political
prisoners by the international community during previous periods
of detention.
17.14 The then Minister went on to say that, while
some Member States shared her concerns, most were leaning towards
renewal of the suspension on the grounds that there had been some
progress; though renewal could demonstrate the EU's commitment
to engagement with Belarus, and "tie them closer to international
organisations and internationally accepted standards through the
Eastern Partnership and the Council of Europe, so encouraging
further reform", renewal on the basis of the limited reforms
so far, the Minister said, "risks suggesting that we were
satisfied with progress, weakening an important lever for further
reform" and "could lead them to believe that sanctions
would be lifted altogether when they come up for renewal in October."
Conversely, the Minister said, re-imposition could be interpreted
negatively by international bodies other than the IMF and jeopardise
the additional assistance that their $2.5bn loan in January assumed,
and make Belarus vulnerable to Russian influence, which would
in turn be unlikely to help the reform process.
17.15 Overall, the Minister concluded, her judgement
on whether to support renewal of the suspension would be based
on the most effective way of supporting reform; the Belarusian
reaction to whichever step the EU took was unpredictable, with
neither option providing guarantees of improved performance; an
important part of the effectiveness of her approach would be achieving
EU unity, "so Belarus was left in no doubt about our messages",
which unity would be needed when the Common Position was due for
renewal in October, without which the sanctions would lapse. Given
"these challenges", the Minister said her position would
"continue to evolve in the run up to the GAERC", and
she would "inform the committee in the usual way of the outcome
of the Council."
The then Minister's letter of 30 March 2009
17.16 In a further letter of 30 March 2009, the then
Minister responded to issues raised in the previous Committee's
follow up letter of 25 March 2009 as follows:
"Nikolay Avtukhovich, Yuri Leonov and Vladimir
Asipenka have been arrested for arson, and are currently in pre-trial
detention. We have serious concerns about the independence of
the Belarusian justice system and may in the future come to categorise
these individuals as human rights defenders or political prisoners,
but it is currently too early to make that conclusion. This view
is shared by the Belarus Helsinki Commission who were consulted
by officials at our Embassy in Minsk earlier this week. The Belarus
Helsinki Commission are following the case especially closely
because Nikolay Avtukhovich and Yuri Leonov have previously been
recognised as political prisoners.
"Until the three individuals are released, or
until the Belarus Helsinki Commission consider them political
prisoners, we will work with our EU colleagues to continue to
urge the Belarusian authorities to ensure that their case is dealt
with promptly and fairly.
"We will make clear to the Belarusian authorities
that any action that results in the Belarusian Helsinki Commission
considering these individuals as political prisoners will have
a significant impact on Belarus's relationship with the EU.
"The EU undertook to review the provisions of
Common Position 2008/844/CFSP before 13 April 2009. If the current
draft Common Position is not adopted by that date, the EU will
be unable to review those provisions and EU colleagues may feel
that the UK is not serious about its obligations under EU legislation.
Furthermore, it may send a signal to the Belarus authorities that
the EU is not united on this issue — a position it will
exploit to undermine the effectiveness of the sanctions measures.
It is possible, therefore, that we will seek to override scrutiny
in order for the Common Position to be adopted on 6 April 2009."
The previous Committee's further assessment
17.17 Given the clear differences of view between
Member States that the Minister herself discussed, the previous
Committee thought that it would be odd if the Belarus authorities
had not already concluded that the EU was not united on this issue
— especially since she had again failed to state that, should
the individuals in question be classified as political prisoners,
the travel ban would be reimposed.
17.18 The previous Committee also found it disturbing
that she should use the possibility of something that the Belarus
authorities must know was lacking as a basis upon which to threaten
to over-ride scrutiny.
17.19 The previous Committee left it to the House
to judge whether or not this was "a good outcome", particularly
as had been said that it would be developments in this area of
"common values" and governance that would determine
what place Belarus would have in the then proposed new Eastern
Partnership between the EU and six Eastern neighbours —
Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine[69]
(which proposal was debated in the European Committee on 27 April
2009.)[70]
17.20 The previous Committee looked forward to further
information from the Minister as the situation developed, particularly
with regard to the arrested individuals and in the run-up to the
proposed review.
17.21 In the meantime, it cleared the document.[71]
17.22 Common Position 2009/314/CFSP was adopted on
6 April 2009 and extended the restrictive measures until 15 March
2010, with a partial suspension of the travel restrictions until
15 December 2009.
17.23 On 9 December 2009, the previous Committee
considered a subsequent Council Decision that superseded, and
therefore repealed Common Position 2009/314/CFSP. It extended
the restrictive measures provided for by Common Position 2006/276/CFSP
until 31 October 2010. At the same time the travel restrictions
imposed on certain leading figures in Belarus, with the exception
of those involved in the disappearances which occurred in 1999
and 2000 and of the President of the Central Electoral Commission,
were to be further suspended. As before, the Council reserved
the right, at any time, to decide by unanimity to re-apply the
travel restrictions, if necessary in the light of actions by Belarusian
authorities in the sphere of democracy and human rights. In any
event, in October 2010, the Council would review of the restrictive
measures, taking into account the situation in Belarus.
17.24 In his accompanying Explanatory Memorandum
of 25 November 2009, the then Minister for Europe (Chris Bryant)
says that the 17 November GAERC agreed that, "due to an absence
of tangible progress in areas identified in the Council Conclusions
of 13 October 2008, the restrictive measures in place on Belarus
should be extended until 31 October 2010, but to encourage further
reform, the suspension of the travel restrictions were also extended
for the same period." He professed himself:
"disappointed that Belarus has not made more
progress since March, and remain concerned about the cases of
Nikolay Avtukhovich, Yuri Leonov and Vladimir Asipenka, activists
who were arrested for arson earlier this year. Neither Amnesty
International nor the Belarusian Helsinki Committee consider these
activists political prisoners. In May 2009, Amnesty International
announced that they recognised as political prisoners 11 people
arrested for taking part in an unauthorised demonstration against
regulations on small businesses in January 2008. Since then, three
of the activists have been released.
"However, we believe that the Council Conclusions[72]
recognise the mixed progress made by Belarus over the past year,
and reflect the balance of views between EU Member States. This
outcome sends a united message to the Belarusian authorities that
we are not yet satisfied with their progress. This extension enables
the EU to maintain leverage whilst still promoting engagement.
Appetite for sanctions within the EU has diminished so the Belarusian
authorities may have believed they could sit sanctions out and
wait for the measures to lapse. This renewal makes it clear that
the EU is not yet convinced of the Belarus authorities' commitment
to reform."
The previous Committee's assessment
17.25 In clearing the Council Decision, the previous
Committee said that it was reporting this further extension so
fully because of the degree of interest in the House in EU relations
with both the EU and Russia's "near neighbours", and
in EU sanctions policy around the globe. They again left it to
others in the House to judge the effectiveness of the EU's policy,
and its shifts since 2006, in relation to its avowed objectives
(which it set out in Annexes 1-3 of its Report).[73]
17.26 Council Decision 2009/969/CFSP extended the
restrictive measures until October 2010, whilst suspending the
travel restrictions imposed on certain leading figures in Belarus,
with the exception of those involved in the disappearances which
occurred in 1999 and 2000 and of the President of the Central
Electoral Commission.
The proposed Council Decision
17.27 This draft Council Decision extends the restrictive
measures (asset freeze and travel ban) provided for by Common
Position 2006/276/CFSP until 31 October 2011. At the same time
the application of the travel restrictions imposed on certain
leading figures in Belarus, with the exception of those involved
in the disappearances which occurred in 1999 and 2000 and of the
President of the Central Electoral Commission, will be further
suspended.
17.28 Article 4(1) of the draft Council Decision has
been amended to bring the language into line with article
30 of the Lisbon Treaty. Articles 4(2) and 4(3) reflect recent
best practice concerning the requirement to notify those individuals
subject to restrictive measures of the reasons for their listing,
in order to allow such persons the opportunity to present observations
to the Council.
17.29 As before, the Council may, at any time, decide
by unanimity to re-apply the travel restrictions, if necessary,
in the light of actions by the Belarusian authorities in the sphere
of democracy and human rights.
The Government's view
17.30 In his Explanatory Memorandum of 8 October
2010, the Minister for Europe (David Lidington) says that the
procedures for designating individuals under the EU visa ban are
fully compliant with fundamental rights: individuals may only
be listed where evidence exists that they are engaged in the activities
listed under Article 1 of Council Common Position, and would be
entitled to challenge the implementation or application of such
a ban in the Member State's courts; and, as previously, Member
States may grant exemptions from the travel ban for specified
reasons including, inter alia, where travel is justified on the
grounds of urgent humanitarian need.
17.31 After briefly reviewing the history of the
EU's engagement with Belarus in the same terms as did his predecessors,
the Minister says:
"Over the last year greater EU engagement has
not delivered improvements in human rights or democracy. The Belarus
authorities have taken a few, mostly cosmetic, steps but progress
has stalled, and in some areas deteriorated. Already, in the run
up to the Presidential elections, signs of progress are not encouraging.
Repressive tactics are being employed in order to discredit opposition
parties, whilst intimidating the limited independent media sector.
In addition, the President's rhetoric on relations with the EU
over the last few months continues to be negative.
"Under these circumstances, lifting the sanctions
would send the wrong signal to Belarus and the wider public. It
would suggest that we do not consider human rights a priority.
And lifting the sanctions before elections that we expect will
fail to meet international standards would be particularly unfortunate
timing.
"But re-imposing sanctions could actually be
counterproductive for our broader policy of engagement and for
our specific need to maintain a dialogue with the authorities
ahead of the Presidential elections."
Conclusion
17.32 We are reporting this Council Decision to
the House for the same reasons as did the previous Committee.
17.33 In so doing, we note that the Minister comments
in only very general terms about what has happened over the past
ten months, particularly in relation to the EU's benchmarks. He
also makes no mention of the detained individuals referred to
in previous discussion with his predecessors.
17.34 The Presidential elections will be the next
test. Though the Minister makes no mention of the date, they are
to be held on 19 December. President Lukashenko will run for a
fourth term. According to press reports, his closest challenger,
Alyaksandr Milinkevich, pulled
out last month, saying he believed
the poll would be rigged.
17.35 We presume that the EU will review the outcome.
Bearing in mind the Council's proviso (c.f. paragraph 0.29 above),
we would like the Minister to write to us then about that review
and with his views on the best way forward, and to include information
about progress against the EU's Twelve Points and the detained
individuals mentioned above.
17.36 We now clear the document.
62 See Belarus Country Profile at
http://www.fco.gov.uk/en/about-the-fco/country-profiles/europe/belarus?profile=politics&pg=7. Back
63
See http://ec.europa.eu/external_relations/belarus/intro/non_paper_1106.pdf
for the full text of the paper. Back
64
The previous Committee took this to be a reference to the Council
Conclusions on Belarus, which are available at http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/gena/103299.pdf
and at Annex 1 of this chapter of our Report. Back
65
These are set out in the Council Non-Paper to which the Minister
referred, and which were reproduced at Annex 2 of the relevant
chapter of the previous Committee's most recent Report - see headnote. Back
66
See (30048) -: HC 16-xxxiii (2007-08), chapter 4 (29 October 2008). Back
67
Published on 2 March 2009 as HC 231. Back
68
Ibid, Ev 4. Back
69
See (30248) 16940/08 and (30249) 16941/08: HC 19-xi (2008-09),
chapter 5 (18 March 2009). Back
70
For the record of that debate, see http://www.publications.parliament.uk/pa/cm200809/cmgeneral/euro/090427/90427s01.htm. Back
71
See headnote: (30507) - : HC 19- xii (2008-09), chapter 10 (1
April 2009). Back
72
The previous Committee took these to be those adopted by the 17
November GAERC and reproduced at Annex 3 of of its most recent
Report (and also available at http://register.consilium.europa.eu/pdf/en/09/st15/st15593.en09.pdf)
Back
73
See headnote: HC 5-iii (2009-10), chapter 17 (9 December 2009). Back
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