EU Afghanistan Cooperation Agreement on Partnership and Development - European Scrutiny Contents


15 Restrictive measures against Belarus

Committee's assessment Politically important
Committee's decisionCleared from scrutiny (decision reported on 18 November 2015); further information provided
Document details(a) Council Decision; (b) Council Implementing Regulation; (c) Council Regulation regarding restrictive measures against Belarus
Legal base(a) Article 29 TEU; unanimity (b) Article 215 TFEU; QMV (c) Article 8a(1) of Council Regulation (EC) 765/2006; QMV
DepartmentForeign and Commonwealth Office
Document Numbers(a) (37240), —; (b) (37242), —; (c) (37241), —

Summary and Committee's conclusions

15.1 EU sanctions were first imposed on Belarus in 2004 because of the disappearance of four political activists in 1999 and 2000. Then, in 2006, following the fraudulent presidential election and the subsequent crackdown on protesters, the EU imposed an asset freeze and travel restrictions on 41 individuals, including President Lukashenko, as well as embargoes on arms and related material, and equipment which could be used for internal repression. Following a period of suspension, sanctions were re-imposed in January 2011 following the Presidential election of 19 December 2010; and, a year later, in January 2012, the listing criteria were expanded to target those responsible for serious human rights abuses (not directly linked to presidential elections) and beneficiaries and supporters of the Lukashenko regime.[87]

15.2 Latterly, the EU has wrestled with what it describes as its policy of "critical engagement". Last autumn, the Minister for Europe (Mr David Lidington) told the Committee that the latest manifestation — prolonging the "asset freeze and travel ban" measures for four months, until 29 February 2016, and, at the same time, suspending them for 170 persons and three entities — though signalling continuing EU concerns about democracy, human rights and the rule of law, also responded to the release of political prisoners last August and, then, the peaceful conduct in October of the latest presidential election (which was again won by President Lukashenko), and was "to be coupled with the implementation of additional concrete measures to deepen the EU's policy of critical engagement with Belarus".

15.3 Then, in January, the Minister explained that, at the beginning of 2015, the Council had "agreed a list of measures for the EU to use to deepen critical engagement with Belarus". But all that he said was that they "included increased cooperation, particularly technical information sharing, removing quotas imposed on Belarusian goods and the negotiation of a new EU-Belarus visa facilitation agreement". The measures were "designed to be used progressively should relations with Belarus improve, and in particular should the human rights situation in Belarus improve". He also told us that the full OSCE/ODIHR report on the October presidential elections would not now be available until later that month; and that it and the latest local Heads of Mission' assessment would then inform decision-making in February, prior to the end-month deadline.

15.4 In its most recent Report, the Committee noted that the Minister had still said nothing about what was going on in Belarus and what the EU should be doing about it. In particular, we had no information, let alone comment, on the human rights situation, e.g., on the use of the death penalty and the behaviour of the judicial authorities in general, or whether the political prisoners released last August now enjoyed the full civil and political rights for which the EU High Representative and the Enlargement Commissioner had called at that time.[88] The Committee therefore sought clarification as to: what had been happening on the "human rights" front; which of the "engagement-deepening" measures had been implemented in 2015, and what the circumstances were; and how, beyond generalities, ways in which this now decade-long process had changed and was changing governance in Belarus for the better (see "Background" for full details).

15.5 In the meantime, the 15 February Foreign Affairs Council has taken the political decision not to extend restrictive measures for the 170 individuals and three companies whose listings were currently suspended, and adopted substantive Conclusions explaining the Council's underlying rationale and its aspirations for the future development of EU-Belarus relations. HR/VP Mogherini described this as a process of "critical engagement" in which "some [were] more focused on the critical, others on the engagement"; noting that the EU was "not recognizing a situation that turns from black to pink overnight", but "we have seen over the last couple of years some steps that are encouraging and that we want to try to support and encourage further".[89]

15.6 All of this was followed on 17 February by an EU statement condemning the announcement of a further death sentence handed down on 16 February 2016 by the Belarus judicial authorities (see "Background" and the Annex for full details).

15.7 The Minister now says that the decision of the Council "is the best outcome given differing opinions amongst Member States", as "[f]ailure to come to a consensus view would have seen the restrictive measures against Belarus expire".

15.8 The Minister has also responded fully to our request (see paragraph 15.21 below for details). On the human rights front, he says that concerns remain. He notes that the Government of Belarus has agreed to participate in an FCO-funded UN Development Programme conference on the death penalty, and also "reached out to the Council of Europe to request consultations on the use of the death penalty" — but a "new death sentence was handed down on 5 January", two people "are now on death row", the political prisoners released last August "have not been fully rehabilitated", changes in human rights "have not been systemic", and "many of the actions taken by the Government and authorities in Belarus can be easily and quickly reversed". In sum: "Too little time has passed to judge Belarus' long-term commitment to open and democratic governance".

15.9 We are grateful to the Minister for his full and thoughtful response. We leave it to interested Members and others to judge how much constitutes "too little time", given that President Lukashenko has now been in office since July 1994, and to pursue these matters further, should they so wish, via the many means at their disposal.

Full details of the documents: (a) Council Decision (CFSP) 2015/1957 of 29 October 2015 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus: (37240), —; (b) Council Implementing Regulation (EU) 2015/1949 of 29 October 2015 implementing Article 8a (1) of Regulation (EC) No. 765/2006 concerning restrictive measures in respect of Belarus: (37242), —; (c) Council Regulation (EU) 2015/1948 of 29 October 2015 amending Regulation (EC) No. 765/2006 concerning restrictive measures in respect of Belarus: (37241), —.

Background

15.10 When we cleared these documents last November, we noted that the release of the political prisoners and, then, the peaceful conduct of the presidential election were clearly developments with respect to which the EU needed to respond positively. On the other hand, it was equally clear that there was still a long way to go, not just in the electoral process — where there were to be parliamentary elections in 2016 — but more widely; as the Minister noted, there had been no other changes in the human rights situation on the ground or in the respect for democratic principles. The period between October 2015 and February 2016 would thus be crucial, and the final OSCE ODIHR (Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights) election report due at the end of November and any other developments within Belarus were to be taken into account before deciding the next move. The EU was also due to bring forth as-yet-unspecified "additional concrete measures to deepen the EU's policy of critical engagement with Belarus".

15.11 It was now nearly ten years since the EU embarked on this process, of using "critical engagement" and "smarter sanctions", including imposition/suspension/re-imposition, in its long-standing tussle with President Lukashenko and his closest allies, in line with the fundamental bases of its European Neighbourhood Policy and in support of those who seek, at great personal cost, to create a proper, law-based democratic process. However, given that, under President Lukashenko, Belarus had turned its face evermore eastwards, towards Russia, it was debatable as to how successful this had been. We therefore asked the Minister to write to us by mid-January 2016, explaining what additional concrete measures had been taken "to deepen the EU's policy of critical engagement with Belarus" and outlining what his thinking then was about the review process, in the light of the final OSCE ODIHR election report and developments within Belarus since the elections.[90]

15.12 In his response of 14 January 2016, the Minister looked back to the beginning of 2015, at which point, he said, the Council "agreed a list of measures for the EU to use to deepen critical engagement with Belarus". But, as this document was classified as EU Restricted, all he could say was that they "included increased cooperation, particularly technical information sharing, removing quotas imposed on Belarusian goods and the negotiation of a new EU-Belarus visa facilitation agreement". The measures were "designed to be used progressively should relations with Belarus improve, and in particular should the human rights situation in Belarus improve". The Council also agreed "that further measures, such as the suspension and even removal of sanctions, could be introduced once further improvements were seen". In the meantime, he revealed that last October's PSC[91] meeting had also agreed — at the instigation of Belarus — resumption of a Belarus/EU human rights dialogue. The 29 October 2015 measures "aimed at supporting constructive steps without losing sight of continued human rights violations in Belarus". Going forward, the EU would "continue to monitor events on the ground and, if appropriate, pursue further measures to deepen engagement", and also consider "additional ways in which Belarus can increase its engagement with the Eastern Partnership", including the offer of technical assistance "should Belarus wish to accede to the WTO". More immediately, the final OSCE ODIHR election report was not now expected until "the second half of January"; along with the Minsk EU Heads of Mission' assessment of the situation on the ground, the PSC would "need to act quickly to assess how the results affect decisions about the restrictive measures" when it next discussed them in February. Whilst the Minister could not "comment on internal EU discussions", he could "assure [the Committee] that the UK will continue to work to ensure the EU maintains a strong focus on human rights whilst signalling its commitment to improving relations with Belarus".

Our assessment

15.13 We noted that we had been given no information, let alone comment, on the human rights situation, e.g., on the use of the death penalty and the behaviour of the judicial authorities in general, or whether the political prisoners released last August now enjoyed the full civil and political rights for which the EU High Representative and the Enlargement Commissioner had called at that time. Nor was it possible to discern from the little the Minister had to say as to whether the EU had used any of its "measures" to "deepen critical engagement with Belarus"; or, therefore, when and why, and with what positive benefit.

15.14 We therefore asked the Minister:

·  to clarify what had been happening on the "human rights" front;

·  to know which of the "engagement-deepening" measures agreed a year ago by the Council had been implemented in the meantime, and what the circumstances were; and

·  to illustrate, beyond generalities, ways in which this now decade-long process had changed and was changing governance in Belarus for the better.[92]

15.15 On 15 February 2016, the Foreign Affairs Council reached a political decision not to extend restrictive measures for 170 individuals and three companies whose listings were currently suspended; and to extend the arms embargo on Belarus and restrictive measures related to four individuals listed in connection with the unresolved disappearances of two opposition politicians, one businessman and one journalist, for a period of 12 months.

15.16 The Council also agreed Conclusions in which they explained the rationale underlying this decision — highlighting the importance attached to relations with the Republic of Belarus and its people; noting its ongoing concerns with the human rights situation; recalling that EU-Belarus relations should be based on common values, especially respect for human rights, democracy and the rule of law; acknowledging the steps taken by Belarus over the last two years that have contributed to improving EU-Belarus relations; and recognising "that there is an opportunity for EU-Belarus relations to develop on a more positive agenda and that progress in a variety of fields can better be achieved through enhanced channels of communication".[93]

15.17 After the Foreign Affairs Council meeting, HR/VP told the media that Belarus was "showing a positive trend which we want to encourage", and that:

    "It is not a rosy or perfect picture, that was the general assessment, but we agreed on a critical engagement; some more focused on the critical, others on the engagement."[94]

15.18 On 17 February 2016, the EU issued a further statement:

    "A death sentence was handed down on 16 February 2016 to Sergei Khmelevsky by a Minsk Regional Court. Mr. Khmelevsky's legal right to appeal should be fully guaranteed.

    "Mr. Khmelevsky was convicted of a serious crime and we extend our deepest sympathy to the family and friends of the victims.

    "The EU opposes the use of death penalty, a cruel punishment, which fails to act as a deterrent. We call on Belarus, the only country in Europe still applying capital punishment, to join a global moratorium as a first step towards the abolition of death penalty. Commuting the sentences of persons sentenced to death and launching a public debate on the death penalty with Belarusian society would be an important move in this regard."[95]

The Minister's letter of 18 February 2016

15.19 The Minister responds to the Committee's latest queries thus:

WHAT HAS BEEN HAPPENING ON THE HUMAN RIGHTS FRONT?

"The Committee is already aware of the release of political prisoners and the conduct of elections resulting in the suspension of the majority of listings under the EU restrictive measures against Belarus. There have been further small but positive steps on human rights, which are set out below.

"The Belarusian authorities have signalled their acceptance of the OSCE ODIHR final report on the conduct of the 2015 Presidential elections. The report highlights that there are still significant steps needed to bring election practices in Belarus into line with international standards. The Central Election Commission has confirmed they will work with ODIHR to implement some of the recommendations. The EU will monitor closely the progress of this and review what steps are taken before the Parliamentary Elections due in September 2016.

"Protests since the elections have been allowed to take place peacefully. Organisers have been fined, but no arrests have been made.

"The Government of Belarus has agreed to discuss further the possibility of a National Human Rights Institute or similar body, and has accepted 158 out of 265 recommendations from the UN Universal Periodic Review process, which will serve as the basis for a National Human Rights Action Plan.

"The willingness of the Government of Belarus to engage more with the EU and international institutions has noticeably increased, including issuing an open invitation to the EU Special Rapporteur on Human Rights, Mr Stavros Lambrinidis. Mr Lambrinidis is looking to visit Belarus in March.

"The Government of Belarus has agreed to participate in an FCO-funded UN Development Programme conference on the death penalty. The Belarusian authorities have also reached out to the Council of Europe to request consultations on the use of the death penalty.

"Concerns about the human rights situation remain. A new death sentence was handed down on 5 January. Two people are now on death row. The political prisoners released on 22 August 2015 have not been fully rehabilitated. They remain under administrative conditions requiring them, for example, to register on a regular basis with local police. The changes we have seen in human rights have not been systemic, and many of the actions taken by the Government and authorities in Belarus can be easily and quickly reversed. Too little time has passed to judge Belarus' long-term commitment to open and democratic governance.

IMPLEMENTATION OF "ENGAGEMENT-DEEPENING" MEASURES AGREED A YEAR AGO BY THE COUNCIL

"The EEAS and Commission have taken forward implementation of a number of the measures agreed at the Political and Security Council in January 2015.

"The EU has taken steps to improve its visibility in Belarus by raising its profile in the Belarusian media and through direct contact with Belarusian citizens. One strand of this was to secure more high-level EU visitors to Minsk, such as the EEAS Deputy Secretary-General Helga Schmid and Neighbourhood Commissioner Johannes Hahn, in order to create a sustained forum for dialogue on all issues of interest to Belarus and the EU. We have sought to engage civil society in this dialogue.

"Further short term measures included signing a Memorandum of Understanding on an Early Warning Mechanism in case of emergency or threat to energy supplies and/or energy transit. The EU is also negotiating a Mobility Partnership and a Visa Facilitation and Readmission Agreement, though neither has been completed yet.

"Belarusian involvement within the Eastern Partnership framework has increased. With the European Neighbourhood Review completed, the EU will now look at what differentiation means for Belarus and how we can engage further in a carefully calibrated way.

"Other measures that have been implemented include helping Belarus to become a member of the Bologna Process (the European Higher Education Area). Belarus is following a roadmap of reforms for its higher education to bring it in to line with other countries in the Process. The EU has also offered technical assistance to help Belarus reform its economy to meet WTO accession requirements.

"Further measures are envisaged once Belarus meets the criteria of concrete and long-term progress in improving human rights and democracy. These measures continue to be developed in more detail.

HOW THIS DECADE-LONG PROCESS HAS CHANGED AND IS CHANGING GOVERNANCE IN BELARUS FOR THE BETTER?

"We do not expect significant changes in the governance of Belarus to take place rapidly. It continues to be dominated by President Lukashenka. However, Belarus has in the last two years demonstrated an increased willingness to engage with the international community and take seriously our recommendations with regard to elections, political prisoners, and other key issues.

"Restrictive measures are one of the tools we have used to effect change over a long period of time. To be successful, they must be used as part of a broader political and diplomatic strategy which includes both carrots and sticks. We must also be willing to adjust sanctions when the situation allows in order to maintain the legitimacy of restrictive measures as a foreign policy tool. The incentive to change behaviour is increased where individuals and entities can see that restrictive measures are lifted in response to positive changes in behaviour.

EXPECTATIONS FOR THE FUTURE OF THE EU RESTRICTIVE MEASURES ON BELARUS

"The restrictive measures are due to expire on 29 February unless renewed. Given the demand from many Member States to respond to recent signs of positive engagement by Belarus, the Foreign Affairs Council (FAC) was asked to take a political decision on next steps when it met on 15 February. Many Member States pointed to improvements that had been made in respect of human rights, Belarus' constructive role in the region, as well as the changing regional context and the openness of the Government of Belarus to dialogue, as signs that this was an opportunity to further relations that the EU should not pass up.

"The UK Government, among others, continues to advocate a cautious approach to EU-Belarus relations. We believe instability in the region and economic difficulties are significant factors driving Belarus to improve its relations with the EU. However, we have seen improvements followed by backwards steps in the past and, as you have noted, for too long the EU's relationship with Belarus has followed a boom and bust cycle. Dialogue and engagement will be important, but we remain clear-eyed in our assessment of the human rights situation and attentive to any government efforts to crack down on civil society. The progress Belarus makes in improving the human rights situation should be met with steps from the EU to encourage further progress and a mutually beneficial relationship.

"In order to achieve the consensus necessary for maintaining any restrictive measures against Belarus, we need to find a position that moves forward the EU's policy of critical engagement. We feel the proposal to de-list 170 individuals, while maintaining restrictive measures on four individuals associated with the disappearances in 1999/2000 as well as the arms embargo, is the best outcome given differing opinions amongst Member States. Failure to come to a consensus view would have seen the restrictive measures against Belarus expire."

Previous Committee Reports

Twenty-second Report HC 342-xxi (2015-16), chapter 9 (3 February 2016) and Ninth Report HC 342-ix (2015-16), chapter 24 (18 November 2015); also see (36431), —, and (36432), —: Sixteenth Report HC 219-xvi (2014-15), chapter 11 (29 October 2014).


87   See EU relations with Belarus for the EEAS's summary of the EU's overall relations with Belarus. Back

88   On 22 August 2015, the EU High Representative/Vice President (Federica Mogherini) and Commissioner for European Neighbourhood Policy and Enlargement Negotiations (Johannes Hahn) issued a statement on the release of political prisoners in Belarus, which they described as "important progress in the efforts towards the improvement of relations between the EU and Belarus" and in which they said that they "now expect the authorities of Belarus to remove all restrictions on the enjoyment of full civil and political rights of the released". See Statement. Back

89   See EU lifts almost all sanctions against Belarus in Euractiv of 16 February 2016. There is also a wide range of comment in the 17 February 2016 Washington Post, from which the HR's remarks are taken: see EU warms to Belarus despite its 'dismal' human rights record. Back

90   Ninth Report HC 342-ix (2015-6), chapter 24 (18 November 2015). Back

91   Political and Security Committee: the committee of senior officials from Member State delegations who, under article 25 TEU, monitor the international situation in areas covered by the CFSP and, under the general responsibility of the Council, exercise political control and strategic direction of policy issues and crisis management operations. Back

92   See Twenty-second Report HC 342-xxi (2015-16), chapter 9 (3 February 2016). Back

93   See the Annex to this chapter of our Report for the full Council Conclusions. Back

94   See EU lifts almost all sanctions against Belarus in Euractiv of 16 February 2016. There is also a wide range of comment in the 17 February 2016 Washington Post: see EU warms to Belarus despite its 'dismal' human rights record. Back

95   See Statement. Back


 
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