22 March 2019

Time for A Decade of Rule of Law and Independent Justice

The Eastern Partnership approaches its tenth anniversary in May 2019. On 26 February, in Brussels, the Eastern Partnership Civil Society Forum launched the latest Eastern Partnership Index, edited by New Diplomacy Chair Jeff Lovitt.

In the introduction to the Index, Jeff Lovitt set out some of the big policy challenges facing the EU and the Eastern Partnership countries in 2019 and beyond, noting that the Association Agreement signatory countries are now implementing Deep and Comprehensive Free Trade Area agreements with the EU, and have all secured visa-free short-term travel to the Schengen countries, but that "their aspirations of closer alignment with the EU are far from assured".

The following encapsulates some of the main points of the introduction to the Index. Although the Index data covers 2017, the narrative also covers developments to the very end of 2018, and the recommendations (see the Top Challenges for 2019 below) look forward to 2019.

The parliamentary elections in Moldova on 24 February 2019 resulted in a stalemate, and there is evident concern that the ruling Democratic Party (PDM) will connive to continue in power, and to perpetuate its leader's stranglehold over the economy and the judiciary. We now face first presidential, then parliamentary, elections in Ukraine, a country where substantial reforms have been implemented (not least local government reform), but where the fight against corruption continues to face entrenched interests of powerful business interests. On the other hand, the Velvet Revolution in Armenia has raised hopes that civil society and new political forces can turn the tide against entrenched interests.

Below, after the Top Challenges for 2019 listed in the Index, some of the introduction's main points on justice reform and conflict de-escalation are shared in abridged form.

From the Eastern Partnership Index 2017:

  • The governments of the Eastern Partnership countries must focus on the professionalisation and independence of the justice system, and the EU should make financial support to the respective governments strictly conditional on prompt and comprehensive reforms of the judiciary and prosecution service, and genuinely independent anti-corruption agencies. The freezing of EU assistance to the government of Moldova should continue until a government emerges that shows a commitment to tackling this challenge with integrity.
  • Where financial assistance to government is frozen, support to civil society should continue, indeed be strengthened, in the EU’s new multi-annual financial framework. There is an urgent need for strong EU support for civil society and independent media in all six countries, including Belarus and Azerbaijan, where the media are least free.
  • The EU and NATO should build on the decisions of the Warsaw NATO 2016 Summit to restore confidence in Europe’s security architecture. The EU can also take a lead on easing tensions and launching dialogue to resolve the territorial disputes in the region and the conflict in eastern Ukraine.
  • The democratic progress made in Georgia and Ukraine is far from complete, and the energy of the Velvet Revolution in Armenia must be sustained. The EU and international donors can empower civil society to not only monitor the implementation of policies, including the spending of EU financial support, but to become an active partner in shaping EU programme assistance priorities. EU support is also essential to enable civil society to undertake comprehensive, country-wide monitoring of elections to ensure that there is no democratic slippage.

Justice Reforms and Conditionality of Financial Support

All six EaP countries face challenges in addressing corruption and political cronyism, not least the “state capture” that has become entrenched in Moldova. The lack of progressin forging an independent judiciary and prosecution service has also stood in the way of effective anti-corruption reforms in Ukraine. The urgency of effective anti-corruption agencies, backed up by independent prosecutors and judges of the highest integrity, must be embraced by the EU as the top priority in the region. The absence of comprehensive justice reform undermines democratic development and entrenches corrupt elites (there is nothing pro-EU about the abuse of power for the private gain of political leaders, whether they are in office or steering those in office from behind the scenes)....

... Until the respective governments embark on credible, comprehensive reforms that will inspire citizens with confidence that they will experience a fair trial in the justice system, where bribes are not extracted for acquittals, and where the rule of law is not applied arbitrarily to serve the interests of
powerful groups, the EU should apply strict conditionality and freeze all financial support to those governments.

Hard choices must be made, but in the end strict conditionality will be necessary, and it is unacceptable for both EU taxpayers and for the citizens of the EaP countries if EU financial support goes to governments where the state has been “captured” by corrupt business groups.

Different models of support might include long-term engagement of experts who have directly turned around justice systems in other countries rather than secondment of experts to review the existing or planned legislation and processes.

The EU and other donors need to recognise that such reforms need to be hard-hitting. Where there is political resistance from entrenched interests, the money would be better spent on supporting democratic actors working to hold the authorities to account rather than supporting reforms where the political will is lacking.

EU Can Lead on Dialogue to De-Escalate Regional Tensions

The conflict in Ukraine needs a comprehensive approach, including the stabilisation of economic and democratic development, and a pre-emptive approach to guarding Ukraine against external economic risks, primarily from Russia. The EU can help in these security areas, just as it can in Georgia to equip the government to resist the Russian military’s constant extensions of the territory of the secessionist-held Tskhinvali (South Ossetia) region further into Georgia-controlled territory. Diplomatic efforts should be intensified to enable the EU Monitoring Mission in Georgia to be given access to Abkhazia and South Ossetia.

The increase in contacts between the governments of Armenia and Azerbaijan, including a communications hotline that has been accompanied by a reduction of the number of incidents around Nagorno-Karabakh, are an important development. While this progress emerged after the emergence of the new government in Yerevan, the democratic changes in Armenia do not mean a solution to the conflict with Azerbaijan will be found quickly.

The resolution of the competing rights and demands of the Armenian and Azerbaijani communities that both lived in the autonomous territory before the war of 1988-1994 will require an ambitious, sustained mediation effort to open up dialogue and facilitate reconciliation. However, the scope for a de-escalation of tensions is now a realistic objective, and the window of opportunity should be embraced.

The EU is well placed to take a lead on launching such a dialogue, with a view to at least de-escalation of tensions in the case of Nagorno-Karabakh and the other territorial disputes in the region. With France as one of the co-chairs of the OSCE Minsk Group (the others are Russia and the US), the EU already has a place at the table, and should maximise its diplomatic engagement to build on the recently improved communications between the two countries.

The EU should strengthen its presence in the region and improve its in-country intelligence-gathering so that it is better prepared when both internal and external shocks materialise. Better staffed delegations should be combined with more resources and mandates for EU Special Representatives, such as the Special Representative for the South Caucasus and the crisis in Georgia.

The EU Global Strategy needs to be complemented by clear objectives and a Common Security and Defence Policy (CSDP) strategy that intensifies co-operation with partners in the EaP countries and builds adequately resourced early warning systems.

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