House of Commons - Documents considered by the Committee on 19 January 2011

Documents considered by the Committee on 19 January 2011 - European Scrutiny Committee Contents

15 The EU and Guinea-Bissau

(a)

(32381)

18202/10

COM(10) 766

(b)

(32403)

5048/11

COM(10) 806

Commission Communication: Opening of consultations with Guinea-Bissau under Article 96 of the Cotonou Agreement

Council Regulation: Restrictive measures directed against certain persons, entities and bodies threatening the peace, security or stability of the Republic of Guinea-Bissau

Legal base (a)  Article 9 and Article 96 of the Cotonou Agreement and Article 3 of the Internal Agreement on its implementation; —
(b)  Article 215 TFEU; QMV.

Department Foreign and Commonwealth Office

Document originated (a)  20 December 2010
(b)  21 December 2010

Document deposited (a)  22 December 2010
(b)  7 January 2011

Basis of consideration (a)  EM of 11 January 2011
(b)  EM of 17 January 2011

Previous Committee Report None; but see HC 428-v (2010-11), chapter 11 (27 October 2010)

To be discussed in Council To be determined

Committee's assessment Politically important

Committee's decision (a)  Cleared, but further information requested
(b)  Cleared

Background

15.1 The Foreign and Commonwealth Office website paints a troubled and unhappy picture of Guinea-Bissau's move to independence, via a protracted guerrilla war and then Portugal's own 1974 "carnation revolution": firstly, one-party rule, then a coup in 1980 which "began a pattern of military coups and instability, which has persisted until quite recently". That coup was led by Joao Bernardo "Nino" Vieira, who became the first directly-elected President in 1994, after the acceptance of multi-party democracy in 1991 (a directly-elected president and an elected national assembly).

15.2 The period from 1998 to 2004 was notable for a further coup attempt; protracted stalemate between loyalist and rebel forces; the intervention of troops from neighbouring Senegal and Guinea, as well as from the regional peacekeeping force, ECOMOG;[57] elections in December 1999 and January 2000; and the eventual election of opposition leader Kumba Yala in February 2000.

15.3 The first half of this present decade then consisted of further manifestations of unresolved tensions between the government and the military hierarchy: a further attempted military rebellion; subsequent rule by President Yala "characterised by chronic political instability"; his eventual deposition in a bloodless coup in September 2003 supported by all political parties, including Yala's own; the installation of a businessman as interim President; and legislative elections in March 2004 in which no party came out with an overall majority.

15.4 A further period of political turmoil followed the June 2005 presidential elections, following which ex-President Vieira eventually emerged as the winner in a close finish, and was sworn in as President on 1 October; including ex-president Yala's return from exile in late 2006; and culminating in the collapse of the government coalition in March 2007. After a stand-off the opposition leader Martinho N'Dafa Kabi became Prime Minister in April, and the political situation in the country steadied. The mandate of the legislature ended on April 21st 2008. The President then passed a temporary constitutional amendment allowing the continuation of the legislature until further elections could take place. These occurred on 16 November 2008 and resulted in a new Prime Minister, Carlos Gomez Junior, being appointed in January 2009. Following the March 2009 assassination of President Viera, presidential elections were held in June 2009 and resulted in the election of the currently serving President, Malam Bacai Sanhá. The entry (which was last reviewed on 1 July 2010) closes as follows:

15.5 The Committee's most recent Report concerning the EU and Guinea-Bissau relates the history of the EU's Security Sector Reform (EU SSR) in Guinea-Bissau, which was launched May 2008 and was to last for 12 months. The preamble noted that the promotion of peace, security and stability in Africa and Europe was a key strategic priority of the Joint Africa-EU Strategy adopted in December 2007, and that security sector reform (SSR) in Guinea-Bissau was essential for the country's stability and sustainable development. The Mission's tasks included:

advising and contributing to the development of detailed resizing/restructuring plans for the armed forces;
assisting in the development of an underpinning doctrine for employment of the Armed Forces, including mainstreaming the counter narcotics effort;
supporting the development of detailed plans for the restructuring of police bodies; and
advising on the planning and development of an effective criminal investigations capacity.

15.6 In April 2009, the then Committee cleared a "no cost" six-month extension until 30 November 2009; and a further, very-low-cost six-month extension until 31 May 2010. There had continued to be political distractions, but also the election of a new President and an indication (as the then Minister for Europe put it) that the Mission would receive the necessary political support over the next six months to complete the tasks set out in its mandate. The then Minister for Europe supported the extension: it stemmed, he explained, from a recent review and would enable the EU to: "reach a better understanding of plans by the wider International Community (notably the Economic Community of West African States and the UN) to increase their presence in Guinea-Bissau; conclude the mission's existing work; and "build bridges towards further implementation in the future." The extension "should be used by the Mission to complete the tasks of its current mandate (without taking on any additional ones) and to prepare the conditions for engagement by another SSR actor in the future." There was to be a strategic review on the future of EU engagement in Guinea-Bissau, which would be submitted to the Political and Security Committee[59] by the end of January 2010. The review would focus on "where, amongst other International Community interventions, the EU can add most value to stabilisation efforts in Guinea-Bissau in the future [and] … form the basis for making an informed judgement about any subsequent EU engagement in Guinea-Bissau after the end of the mandate of the Mission."

15.7 Three years after the first commitment by the then Guinea-Bissau authorities to SSR, there was a strong sense of disillusionment running through the then Minister's comments, and of this being the last chance for the latest President and government. But the EU had yet to lose patience with an ESDP mission and cut its losses. In clearing that latest extension, the then Committee therefore asked the then Minister to write with information about the outcome of the review and the PSC's assessment and recommendations, ahead of any final determination about what form any further EU involvement might or might not take.

15.8 Nothing was heard from him. Instead, in an Explanatory Memorandum of 21 May 2010, the Minister for Europe (Mr David Lidington) said that a further four-month extension had been proposed in response to a military mutiny that took place in Guinea-Bissau on 1 April. It was, he explained, intended to demonstrate strong EU support to the weakened civilian government of Guinea-Bissau, allow the government time to reassert its authority over the military, while allowing time for the EU to reach a decision on whether the conditions exist for longer term CSDP engagement. This further extension would add €630,000 to the total expenditure of €7.13 million so far. One measure of progress would be the extent to which the Guinea-Bissau government met the demands set out in an EU démarche following the 1 April military mutiny, viz:

the immediate and unconditional liberation of the Armed Forces Chief and all of the other personnel detained in violation of the law;
the establishment of the legal responsibility of and disciplinary measures against those found to be responsible for the incidents of 1 April and the putting into place of a framework for the continuation of the reforms;
the affirmation of the primacy of the civilian authorities and the legitimate democratic authorities; and
a guarantee of the respect for all parts of the Vienna Convention and diplomatic immunity.

15.9 The Minister seemed not to hold great hopes for a positive outcome. The size of the mission would be reduced, which was an explicit acknowledgement that, until the current situation was resolved, there was little chance of the Mission achieving success, but this approach maintained a CSDP foothold in-country. Guinea-Bissau's own development, security and stability would, he judged, be damaged if the Mission were pulled out immediately. But there would be a period of reflection in order to re-assess conditions on the ground before making a more informed decision on the future of CSDP engagement. If conditions on the ground had not improved and made serious Security Sector Reform unlikely, then the Minister believed the EU should consider closing the mission.

15.10 Subsequently, in a letter to the Committee of 4 October 2010, the Minister explained that it had now been decided to close the mission. An earlier review had concluded that the illegal drug trafficking and organised crime in West Africa and Guinea-Bissau made it of strategic importance to continue the SSR effort through a CSDP mission. However, Member States were clear that the mission could only continue and have a chance of success if the Guinea-Bissau authorities demonstrated tangible and clear commitment to SSR, specifically by the adoption of the organic laws by the Guinea-Bissau Parliament which the mission had helped to draft. On this basis, the EU had begun planning for a new CSDP mission to be deployed from 1 June 2010. The new mission was to be smaller than EUSSR Guinea-Bissau, have a greater emphasis on military reform and a more direct coordination with the UN. However, the Minister noted, planning for the new CSDP mission was brought to a halt by a military mutiny in Guinea-Bissau.

15.11 He continued as follows:

"On 1 April 2010, rogue elements of the Guinea-Bissau military, led by the Deputy Chief of Defence (Major General Indjai), unlawfully detained the Chief of Defence (CHOD) Captain Jose Zamora Induta and Prime Minister Carlos Gomes Junior. The Prime Minister was later released but Major General Indjai remains CHOD and no assurances been provided regarding the safety of Captain José Zamora Induta who remains under detention.

"In order to encourage a return to democratic oversight after the mutiny, the EU issued a demarche to the Guinea-Bissau Government which set out the conditions that would need to be met in order for CSDP engagement to continue. These conditions included the unconditional release of the detained CHOD and the prosecution of those responsible for the events of 1 April. Regretfully the Guinea-Bissau Government was unable to meet these conditions and the former Deputy Chief of Defence has since been appointed formally by the Guinea-Bissau President as CHOD."

15.12 As a result, the Minister then said, a second strategic review was undertaken and concluded that conditions in country would not enable the new CSDP mission to take real steps towards SSR and recommended that EUSSR Guinea-Bissau be closed from 30 September. He supported the decision. Deployment of a new mission would have meant EU personnel working with individuals who had engaged in unconstitutional activity, which would have cast doubt on the credibility of any SSR work undertaken. Crucially, the events of 1 April brought into question the commitment of the local authorities to meaningful SSR, without which a new mission would have struggled to have the necessary impact. Although EUSSR Guinea-Bissau would be closed, the EU would be exploring alternative ways of remaining engaged in Guinea-Bissau in order to avoid abandoning Guinea-Bissau at a critical time. The UK position in any future discussions on this issue would be to ensure that continued engagement would be effective and represent good value for money.

Our assessment

15.13 The Committee felt that there could be little doubt that this was the right course of action, and once again left it to others to judge the utility of this exercise hitherto.

15.14 The Committee also looked forward to hearing from the Minister in due course, should ways of remaining engaged in Guinea-Bissau be proposed.

15.15 In the meantime, we reported the ending of this chapter because of the interest in the House in European Security and Defence Policy and in security developments in Africa.[60]

15.16 Then, on 3 November, we cleared a separate Council Decision consisting of a travel ban and an asset freeze directed against what the Minister for Europe described as instigators of the April 2010 mutiny—current Chief of the Armed Forces, Antonio Indjai, and the recently re-appointed Head of the Navy, Bubo Natchuto—whom he believed had taken active steps to prevent a peaceful political process and who continued to undermine stability in the Republic of Guinea-Bissau; these targeted EU restrictive measures were designed to send a clear signal to both the ruling military and political groups in Guinea-Bissau that the current status quo was unacceptable, and that change needed to happen in the country. Beyond their symbolic value, the Minister said the measures could catalyse tougher regional political measures; and would also make clear to other countries in the region that the EU was committed to peaceful civilian rule—West Africa having recently had a number of elections in which violence and undemocratic behaviour were real concerns. There was therefore, he said, a wider benefit to the region of the EU imposing restrictive measures on these individuals in Guinea-Bissau at this time.

15.17 Having so recently reported to the House the decision, finally, to close the ESDP SSR mission—that decision being in response to the circumstances the Minister described—we concluded that, the proposed measures against the two main culprits being both not surprising and in all respects standard, this consequential Council Decision was not, in and of itself, of sufficient political interest to warrant a substantive Report to the House, and should be cleared accordingly.

The Cotonou Agreement

15.18 Guinea-Bissau is a signatory of the African Caribbean and Pacific-European Community (ACP-EC) Partnership Agreement, signed in Cotonou on 23 June 2000, and known as the Cotonou Agreement. This provides a framework for relations between the EU and 77 ACP countries. It has been revised in 2005 and 2010. According to the Commission, compared to preceding development cooperation agreements and conventions, the Cotonou Agreement is designed to establish a comprehensive partnership, based on three complementary pillars:

— development cooperation;

— economic and trade cooperation; and

— the political dimension.

15.19 It is the last of these three elements that has been developed most in the two revisions. Article 96 allows for consultations between the EU and an ACP state where a breach of any of the "essential elements" set out in Article 9—respect for human rights, democratic principles or the rule of law—is perceived to have taken place.

The Commission Communication

15.20 It is against the unhappy political background outlined above that, in this Communication, the Commission proposes that such consultations should begin. In his Explanatory Memorandum of 10 January 2010, Minister for Europe (Mr David Lidington) says:

"Real power lies with the overly large military which acts with impunity—no-one has as yet been indicted for the murder of the previous President—and entirely in its own interests. The EU is now looking to use the formal consultations afforded by Article 96 of the revised Cotonou Agreement to further engage in constructive dialogue with the civilian leadership of Guinea-Bissau. The attached Communication from the Commission to the Council is the start of this process."

15.21 In line with normal procedure, attached to the Communication is a draft letter, addressed to the Guinea-Bissau authorities and copied to the ACP Council of Ministers, from the Development Commissioner and the High Representative. The Commission "finds that there has been a particularly serious and clear violation of these essential principles ... deems the situation to be a case of special urgency within the meaning of Article 96(2)(b) of the Agreement [and] therefore considers it necessary to open consultations with the authorities in power in Guinea-Bissau in order to examine possible solutions to the crisis which would re-establish democratic order." It says that the main aim of these consultations will be to discuss a list of undertakings with the authorities, including:

— an end to the illegal detention of Vice Admiral Zamora Induta and others arrested during the events of 1 April;

— the opening and conclusion of fully independent investigations into the events that took place between 1 March 2009 and 1 April 2010;

— the appointment of persons of integrity not implicated in acts of violence and unconstitutional conduct to lead Guinea-Bissau's armed forces; the acceptance by the authorities of any experts' mission and civil and military support that may be proposed by ECOWAS/the CPLP and/or other partners to supervise and support the reform of the security sector and protect political staff;

— adoption, enactment and publication of the SSR legislative package;

— adoption by the government of an operational programme to implement the SSR package; and

— any other undertaking likely to improve the country's democratic governance and security-sector reform.

15.22 The Commission says that such dialogue will give the authorities in Guinea-Bissau an opportunity to take steps to end the crisis and enable the EU to judge whether and how it could, on the basis of this dialogue, support initiatives directed at compliance with the principles of the Cotonou Agreement.

15.23 The Commission therefore proposes that the Council invite Guinea-Bissau to hold consultations under Article 96 of the revised Cotonou Agreement. Pending the outcome, the Commission will adopt precautionary measures in respect of development cooperation operations under way in Guinea-Bissau, with the exception of payments for contracts already under way, humanitarian measures or measures that directly benefit the local population, regional projects and projects to combat transnational crime, and preparatory measures for the implementation of future projects, as long as the specific conditions of the relevant instruments and agreements are adhered to.

15.24 The Minister says that there are no direct financial implications for the UK, the EU having allocated €120 million up to 2013 through the European Development Fund and EU Budget; that these funds are intended to support the country in strengthening the rule of law and democracy, to facilitate the population's access to basic services and utilities, and to support macroeconomic stabilisation; and that the UK's assessed contribution to the EU Budget means that about 14% of this total sum will be UK money.

The Government's view

15.25 The Minister says that the EU—and the rest of the international community—has tried to deal with the three key issues that Guinea-Bissau faces: "narcotics trafficking (the effect of which permeates almost every level of society); security sector reform (SSR) work; and development." He notes that there has been little, if any, progress on counter-narcotics and reform of the military to date, "in large part due to the impunity with which leading members of the Bissau-Guinean military act." He reviews the events of 1 April 2010, when Antonio Indjai and Bubo Natchuto led a military mutiny that saw the Prime Minister briefly imprisoned and the then CHOD detained; the subsequent appointment of Indjai to the role of CHOD and reappointment of Natchuto to the role of Navy Chief; and the consequential EU cancellation of its SSR mission and the US statement that it would no longer engage on SSR.

15.26 More recently, the Minister says:

"There have been some small indications that the military in Guinea-Bissau might be willing to change: by changing the circumstances of Vice Admiral Zamora Induta's detention from imprisonment to house arrest—one of the undertakings requested in the Commission's Communication—and their lack of active opposition to the principle of a small ECOWAS/Angolan military stabilisation force. But these are only small steps in the right direction against a negative trend and we should be careful about reading too much into them at present."

15.27 The Minister supports consultations under Article 96 in principle as one of the few formal options the EU has at its disposal to try to influence the actions of the military and Government of Guinea-Bissau, and therefore the situation in the country. He says that the Government will work in the EU and in Bissau to try to ensure that:

"the results of these consultations (the "appropriate measures" that the EU can take, including the cessation of EU development funding into Guinea-Bissau, if the consultations do not lead to an acceptable solution) do not affect the most vulnerable amongst the population in that country; but rather influence their leaders into acting in the best interests of their citizens."

15.28 Looking ahead, the Minister says that the draft letter first has to be discussed in the ACP Working Group (ACPWG) on 11 January 2011:

"The Commission has not given us any firm timelines for action beyond this. Once agreed by the ACPWG, the issue will need to be approved by COREPER and the Council of Ministers following that. The Council will then send the letter to Guinea-Bissau inviting them to hold consultations. Consultations should begin no later than 30 days after the invitation and last for a maximum 120 days. They are closed by a Council Decision. If Guinea-Bissau does not fulfil the commitments it agreed the EU can decide to take appropriate measures such as the partial or total suspension of development cooperation. This would require another Council Decision."

The Council Regulation

15.29 In his Explanatory Memorandum of 17 January 2011, the Minister for Europe (Mr David Lidington) explains that, though the Council Decision on restrictive measures was agreed by the Foreign Affairs Council in November 2010, its adoption was put on hold until a Council Regulation could be circulated and then subsequently agreed, enabling the (policy-making) Decision and (implementing) Regulation to be agreed together (the Council Regulation being required to allow EU Member States' relevant competent authorities—HM Treasury in the UK's case—to implement the asset freeze).

15.30 The Minister also explains that, the Commission/High Representative having circulated Council Regulation 5048/11 for discussion on 5 January 2011, and following comments from Member States, a revised Council Regulation was drafted and circulated on 11 January 2011; that the revisions amend language to ensure this is standard and consistent with other Regulations and also introduces Article 10 which allows the Commission to amend Annex II on the basis of information supplied by Member States; and that he supports the revised Council Regulation.

15.31 The Minister goes on to explains that:

— the procedures for designating individuals are compliant with fundamental rights: those subject to a travel ban would be entitled to challenge the implementation or application of such a ban in the domestic courts of a Member State and to challenge the EU Regulation before the General Court; and Member States may grant exemptions from the travel ban for specified reasons including, inter alia, where travel is justified on the grounds of humanitarian need;

— the UK Border Agency will incorporate the travel ban element in the UK's domestic legislation by amending the Schedule to the Immigration (Designation of Travel Bans) Order 2000, which will enable any applications the named individuals may make for visas or for leave to enter the UK to be refused automatically;

— HM Treasury will make an order under the European Communities Act to put in place criminal penalties with respect to the asset freezes implemented by the Council Regulation.

The Government's view

15.32 The Minister says that the measures are designed "to send a clear signal to both the ruling military and political groups in Guinea-Bissau that the current status quo is unacceptable, and that change needs to happen in the country". He again argues that, beyond their symbolic value, these measures could catalyse tougher regional political measures; and that, with West Africa having recently had a number of elections in which violence and undemocratic behaviour are a real concern, there is a wider benefit to the region of the EU imposing restrictive measures on individuals in Guinea-Bissau at this time by making it clear to them that the EU is committed to peaceful civilian rule.

15.33 Finally, the Minister says that it is likely that the EU will adopt the Council Regulation at the 31 January Foreign Affairs Council.

Conclusion

15.34 We are puzzled as to why the Commission Communication has been submitted for scrutiny at this stage, when a Council Decision is required on opening Article 96 consultations and, as the Minister points out, the draft letter that is their basis has yet to complete the normal official-led preparations. So, although we clear the Communication, we also expect a further Council Decision and Explanatory Memorandum before the Council goes ahead with the proposal.

15.35 We clear the Council Regulation.

15.36 We are again drawing the situation to the House's attention because of the degree of interest in political developments in West Africa.

57 Economic Community of West African States Monitoring Group. Back

58 See FCO Country Profile at http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-country/country-profile/sub-saharan-africa/guinea-bissau?profile=politics&pg=7. Back

59 The committee of ambassador-level officials from national delegations who, by virtue of article 38 TEU, under the authority of the High Representative for Foreign Affairs and Security Policy (HR) and the Council, monitor the international situation in areas covered by the CFSP and exercise political control and strategic direction of crisis management operations, as set out in article 43 TEU.

Back

60 See headnote: HC 428-v (2010-11), chapter 11 (27 October 2010). Back



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