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EU’s Decision on a Border Assistance Mission to Rafah

Council of the European Union

Establishing a European Union Border Assistance Mission for the Rafah Crossing Point

(EU BAM Rafah)

Brussels, 12 December 2005

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 14 and the third subparagraph of Article 25 thereof,

Whereas:

(1) The European Union, as part of the Quartet, is committed to assisting and facilitating the implementation of the Roadmap, which lays out reciprocal steps by the Israeli Government and the Palestinian Authority in the political, security, economic, humanitarian, and institution-building fields, that will result in the emergence of an independent, democratic, and viable Palestinian state living side by side in peace and security with Israel and its other neighbours.

(2) Following Israel’s unilateral disengagement from Gaza, the Government of Israel is no longer present at the Rafah Crossing Point and the terminal is closed apart from exceptional cases.

(3) The European Council of 17 and 18 June 2004 reaffirmed the readiness of the EU to support the Palestinian Authority in taking responsibility for law and order, and in particular, in improving its civil police and law enforcement capacity.

(4) The Council of 7 November 2005 reiterated the EU’s support for the work of the Quartet Special Envoy for Disengagement, and welcomed his recent report to members of the Quartet. The Council also noted his letter of 2 November 2005 in which he requested on behalf of the parties that the EU consider playing a Third Party monitoring role at the Rafah Crossing Point on the Gaza-Egypt border. The Council noted the EU’s willingness in principle to provide assistance with the operation of crossings at Gaza’s border on the basis of an agreement between the parties.

(5) The opening of the Rafah Crossing Point has economic, security and humanitarian implications.

(6) The EU has identified as a priority the building up of a Palestinian customs administration in EC-Palestinian cooperation. The Community has provided assistance to the Palestinian border management and has an established tripartite dialogue on customs issues with the Government of Israel and the Palestinian Authority. The Palestinian Authority is engaged in developing detailed plans for border security procedures with the support of the USA and Israel.

(7) On 24 October 2005 the Palestinian Prime Minister sent a letter to the European Commissioner for External Relations and European Neighbourhood Policy in which he requested the EC’s assistance in such areas as capacity building of Palestinian personnel at the Rafah crossing point, the development and installation of needed systems and equipment, and providing advice and support of Palestinian officials on duty at the Rafah Crossing Point.

(8) On 15 November 2005 the Government of Israel and the Palestinian Authority concluded an Agreement on Movement and Access at border crossing points with Gaza, which, inter alia, indicated the role of the EU as a third party regarding the operation of the relevant crossing points.

(9) In letters of invitation, on 20 November 2005 and on 23 November 2005 respectively, the Palestinian Authority and the Government of Israel invited the EU to establish a European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah).

(10) The European Union mission will be complementary and will bring added value to current international efforts, as well as develop synergies with ongoing European Community and Member States efforts. The mission will seek coherence and coordination with the capacity-building actions of the Community, notably in the domain of customs administration.

(11) The mission will be set in the wider context of the EU and of the international community’s effort to support the Palestinian Authority in taking responsibility for law and order, and in particular, in improving its civil police and law enforcement capacity.

(12) Appropriate liaison with the European Union Police Mission for the Palestinian Territories, referred to as the European Union Coordinating Office for Palestinian Police Support (EUPOL COPPS) (1), should be ensured.

(13) The mission will implement its mandate in the context of a situation which poses a threat to law and order, the security and safety of individuals, and to the stability of the area and which could harm the objectives of the Common Foreign and Security Policy as set out in Article 11 of the Treaty.

(14) Security is a prime and continuing concern and appropriate arrangements to ensure security should be adopted.

(15) In conformity with the guidelines of the European Council meeting in Nice on 7 to 9 December 2000, this Joint Action should determine the role of the Secretary-General/High Representative, in accordance with Articles 18 and 26 of the Treaty.

(16) Article 14(1) of the Treaty calls for the indication of a financial reference amount for the whole period of implementation of the Joint Action. The indication of amounts to be financed by the Community budget illustrates the will of the political authority and is subject to the availability of commitment appropriations during the respective budget year,

HAS ADOPTED THIS JOINT ACTION:

Article 1

Mission

1.   A European Union Border Assistance Mission for the Rafah Crossing Point (EU BAM Rafah) is hereby established, with an operational phase beginning on 25 November 2005.

2.   EU BAM Rafah shall operate in accordance with the mission statement as set out in Article 2.

Article 2

Mission statement

The aim of EU BAM Rafah is to provide a Third Party presence at the Rafah Crossing Point in order to contribute, in cooperation with the Community’s institution-building efforts, to the opening of the Rafah Crossing Point and to build up confidence between the Government of Israel and the Palestinian Authority.

To this end, EU BAM Rafah shall:

(a) actively monitor, verify and evaluate the Palestinian Authority’s performance with regard to the implementation of the Framework, Security and Customs Agreements concluded between the Parties on the operation of the Rafah terminal;

(b) contribute, through mentoring, to building up the Palestinian capacity in all aspects of border management at Rafah;

(c) contribute to the liaison between the Palestinian, Israeli and Egyptian authorities in all aspects regarding the management of the Rafah Crossing Point.

EU BAM Rafah shall implement the responsibilities entrusted to it in the Agreements between the Government of Israel and the Palestinian Authority regarding the management of the Rafah Crossing Point. It shall not undertake substitution tasks.

Article 3

Duration

The mission will have a duration of 12 months.

Article 4

Structure of the mission

EU BAM Rafah shall consist of the following elements:

(a) Head of Mission, assisted by an advisory staff;

(b) Monitoring and Operations Department;

(c) Administration Services Department.

These elements shall be developed in the Concept of Operations (CONOPS) and Operation Plan (OPLAN). The Council shall approve the CONOPS and the OPLAN.

Article 5

Head of Mission

1.   Major General Pietro Pistolese is hereby appointed Head of Mission of EU BAM Rafah.

2.   The Head of Mission shall exercise Operational Control over EU BAM Rafah and assume the day-to-day management of EU BAM Rafah and coordination of EU BAM Rafah activities including the management of security of EU BAM Rafah personnel, resources and information.

3.   The Head of Mission shall be responsible for disciplinary control over the EU BAM Rafah personnel. For seconded personnel, disciplinary action shall be exercised by the national or EU authority concerned.

4.   The Head of Mission shall sign a contract with the Commission.

5.   The Head of Mission shall ensure appropriate visibility of the EU presence.

Article 6

Planning phase

1.   During the planning phase of the mission, a planning team shall be established and shall comprise the Head of Mission, who shall lead the planning team, and the necessary personnel to deal with functions ensuing from established needs of the mission.

2.   A comprehensive risk assessment shall be carried out as a priority in the planning process and shall be updated as necessary.

3.   The planning team shall draw up an OPLAN and develop all technical instruments necessary to execute the mission. The OPLAN shall take into account the comprehensive risk assessment and shall include a security plan.

Article 7

EU BAM Rafah personnel

1.   The numbers and competence of EU BAM Rafah personnel shall be consistent with the mission statement set out in Article 2 and the structure set out in Article 4.

2.   EU BAM Rafah personnel shall be seconded by Member States or EU institutions. Each Member State shall bear the costs related to EU BAM Rafah personnel seconded by it, including salaries, medical coverage, travel expenses to and from the mission area, and allowances other than per diems.

3.   International and local staff shall be recruited on a contractual basis by EU BAM Rafah as required.

4.   Third States may also, as appropriate, second mission personnel. Each seconding third State shall bear the costs related to any of the personnel seconded by it, including salaries, medical coverage, allowances, high-risk insurance and travel expenses to and from the mission area.

5.   All personnel shall remain under the authority of the appropriate sending State or EU institution and shall carry out their duties and act in the interest of the mission. All personnel shall respect the security principles and minimum standards established by Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations (2).

6.   EU police officers will wear national uniforms and EU insignia as appropriate and other members of the mission will wear identification as appropriate, subject to the decision by the Head of Mission, taking into account security considerations.

Article 8

Status of EU BAM RAFAH personnel

1.   Where required, the status of EU BAM Rafah personnel, including, where appropriate, the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EU BAM Rafah shall be subject of an agreement to be concluded in accordance with the procedure laid down in Article 24 of the Treaty. The Secretary-General/High Representative, assisting the Presidency, may negotiate such arrangements on its behalf.

2.   Member State or EU institution having seconded a staff member shall be responsible for answering any claims, from or concerning the staff member, linked to the secondment. The Member State or EU institution in question shall be responsible for bringing any action against the secondee.

3.   The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts between the Head of Mission and the staff member.

Article 9

Chain of command

1.   EU BAM Rafah shall have a unified chain of command, as a crisis management operation.

2.   The Political and Security Committee (PSC) shall provide the political control and strategic direction.

3.   The Secretary-General/High Representative shall give guidance to the Head of Mission through the EU Special Representative.

4.   The Head of Mission shall lead EU BAM Rafah and assume its day-to-day management.

5.   The Head of Mission shall report to the Secretary-General/High Representative through the EU Special Representative.

6.   The EU Special Representative shall report to the Council through the Secretary-General/High Representative.

Article 10

Political control and strategic direction

1.   The PSC shall exercise, under the responsibility of the Council, the political control and strategic direction of the mission.

2.   The Council hereby authorises the PSC to take the relevant decisions in accordance with Article 25 of the Treaty. This authorisation shall include the power to amend the OPLAN and the chain of command. It shall also include powers to take subsequent decisions regarding the appointment of the Head of Mission. The Council, assisted by the Secretary-General/High Representative, shall decide on the objectives and termination of the mission.

3.   The PSC shall report to the Council at regular intervals.

4.   The PSC shall receive reports by the Head of Mission regarding contributions to and the conduct of the mission, at regular intervals. The PSC may invite the Head of Mission to its meetings, as appropriate.

Article 11

Participation of third States

1.   Without prejudice to the decision-making autonomy of the EU and its single institutional framework, acceding States shall be invited and third States may be invited to contribute to EU BAM Rafah, provided that they bear the cost of the staff seconded by them, including salaries, medical coverage, allowances, high-risk insurance and travel expenses to and from the mission area, and contribute to the running costs of EU BAM Rafah, as appropriate.

2.   Third States making contributions to EU BAM Rafah shall have the same rights and obligations in terms of day-to-day management of the mission as Member States taking part in the mission.

3.   The Council hereby authorises the PSC to take the relevant decisions regarding the participation of third States, including their proposed contributions and to establish a Committee of Contributors.

4.   Detailed arrangements regarding the participation of third States shall be subject of an agreement to be concluded in accordance with the procedures laid down in Article 24 of the Treaty. The Secretary-General/High Representative, assisting the Presidency, may negotiate such arrangements on its behalf. Where the EU and a third State have concluded an agreement establishing a framework for the participation of this third State in the EU crisis management operations, the provisions of such an agreement shall apply in the context of EU BAM Rafah.

Article 12

Security

1.   The Head of Mission shall be responsible for the security of EU BAM Rafah and shall, in consultation with the Security Office of the General Secretariat of the Council, be responsible for ensuring compliance with minimum security requirements in conformity with the Council’s security regulations.

2.   EU BAM Rafah shall have a dedicated mission Chief Security Officer, assisted by a security team, reporting to the Head of Mission.

3.   The Head of Mission shall consult with the PSC on security issues affecting the deployment of EU BAM Rafah as directed by the Secretary-General/High Representative.

4.   EU BAM Rafah staff members shall undergo mandatory security training and medical checks prior to any deployment or travel to the mission area.

Article 13

Financial arrangements

1.   The financial reference amount intended to cover the expenditure related to the mission shall be EUR 1 696 659 for 2005 and EUR 5 903 341 for 2006.

2.   The expenditure financed by the amount referred to in paragraph 1 shall be managed in accordance with the procedures and rules applicable to the general budget of the EU with the exception that any pre-financing shall not remain the property of the Community. Nationals of third States contributing financially to the mission, host parties and, if required for the operational needs of the mission, of neighbouring countries shall be allowed to tender for contracts.

3.   The Head of Mission shall report fully to, and be supervised by, the Commission on the activities undertaken in the framework of his contract.

4.   The financial arrangements shall respect the operational requirements of EU BAM Rafah, including compatibility of equipment and interoperability of its teams.

5.   Expenditure shall be eligible as of the date of entry into force of this Joint Action.

Article 14

Community action

1.   The Council and the Commission shall, each in accordance with their respective powers, ensure consistency between the implementation of this Joint Action and the external activities of the Community in accordance with the second subparagraph of Article 3 of the Treaty. The Council and the Commission shall cooperate to this end.

2.   The necessary coordination arrangements shall be put in place in the mission area, as appropriate, as well as in Brussels.

Article 15

Release of classified information

1.   The Secretary-General/High Representative is authorised to release to third States associated with this Joint Action, as appropriate and in accordance with the operational needs of the mission, EU classified information and documents up to the level ‘RESTREINT UE’ generated for the purposes of the mission, in accordance with the Council’s security regulations.

2.   In the event of a specific and immediate operational need, the Secretary-General/High Representative is also authorised to release to the local authorities EU classified information and documents up to the level ‘RESTREINT UE’ generated for the purposes of the mission, in accordance with the Council’s security regulations. In all other cases, such information and documents shall be released to the local authorities in accordance with the procedures appropriate to their level of cooperation with the EU.

3.   The Secretary-General/High Representative is authorised to release to third States associated with this Joint Action and to the local authorities EU non-classified documents related to the deliberations of the Council with regard to the mission covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council’s Rules of Procedure (3).

Article 16

Entry into force

This Joint Action shall enter into force on the date of its adoption.

It shall expire on 24 November 2006.

Article 17

Review

This Joint Action shall be reviewed by 30 September 2006 at the latest.

Article 18

Publication

This Joint Action shall be published in the Official Journal of the European Union.

Done at Brussels, 12 December 2005.

For the Council

The President

J. STRAW