European Scrutiny Committee Contents

4 European Security and Defence Policy: EULEX Kosovo


Council Decision amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO

Legal baseArticles 28 and 42(3) TEU; unanimity
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 2 June 2010
Previous Committee ReportNone; but see (30652) — HC 19-xviii (2008-09), chapter 20 (3 June 2009); (29379) — and (29380) — : HC 16-x (2007-08), chapter 10 (30 January 2008)
To be discussed in Council8 June 2010 Economic and Financial Affairs Council
Committee's assessmentPolitically important
Committee's decisionNot cleared; for debate in European Committee B


4.1 On 30 January 2008, the previous Committee cleared two Joint Actions:

—  establishing a European Security and Defence Policy crisis management operation in the field of rule of law in Kosovo; and

—  on the appointment and mandate of the European Union's Special Representative in Kosovo.

4.2 The previous Committee's report of 30 January 2008 set out the background in some detail.[15] First came the UN Mission in Kosovo (UNMIK): according to its website, a UN undertaking "unprecedented in both its scope and structural complexity", unique in that "other multilateral organizations were full partners under United Nations leadership" and based on UN Security Council in Security Council Resolution 1244 of 10 June 1999, which "authorized the Secretary-General to establish in the war-ravaged province of Kosovo an interim civilian administration led by the United Nations under which its people could progressively enjoy substantial autonomy".

4.3 Working closely with Kosovo's leaders and people, the mission performed the whole spectrum of essential administrative functions and services covering such areas as health and education, banking and finance, post and telecommunications, and law and order, grouped under four Pillars:

  • Pillar I: Police and Justice, under the direct leadership of the United Nations;
  • Pillar II: Civil Administration, under the direct leadership of the United Nations;
  • Pillar III: Democratization and Institution Building, led by the Organization for Security and Co-operation in Europe (OSCE); and
  • Pillar IV: Reconstruction and Economic Development, led by the European Union.

4.4 The head of UNMIK was the Special Representative of the Secretary-General for Kosovo; as the most senior international civilian official in Kosovo, he presided over the work of the pillars and facilitated the political process designed to determine Kosovo's future status.

4.5 In November 2005, a process to determine the future status of Kosovo, pursuant to UNSCR 1244, was launched with the appointment of the UN Status Envoy, former President of Finland Martti Ahtisaari; though the United Nations would remain fully engaged in Kosovo until the end of UNSCR 1244, it indicated that it would no longer take the lead in a post-Status presence.

4.6 In June 2005, the European Council "stressed that Kosovo would, in the medium term, continue to need a civilian and military presence to ensure security and in particular protection for minorities, to help with the continuing implementation of standards and to exercise appropriate supervision of compliance with the provisions contained in the status agreement", and its willingness to play a full part, in close cooperation with the relevant partners and international organisations.

4.7 The Stabilisation and Association Process (SAP) is the strategic framework for the EU's policy towards the Western Balkan region; its instruments are open to Kosovo, including a European Partnership, with political and technical dialogue under the SAP Tracking Mechanism regarding, inter alia, standards in the field of rule of law, and related Community assistance programmes.

4.8 In November 2007, an EU planning process got underway, based on the Council's desire to normalise the EU's relations with Kosovo as far as possible by using all the instruments available within the SAP, and which envisaged the creation and deployment of an integrated EU mission in the areas of rule of law and police.

4.9 Against this same background, the EU also established the International Civilian Office/EU Special Representative Preparation Team (ICO/EUSR Preparation Team), to contribute to preparations for the establishment of the International Civilian Mission in Kosovo.

4.10 In a letter to the previous Committee of 17 July 2007, the then Minister for Europe at the Foreign and Commonwealth Office (Mr Jim Murphy) reported that planning for the international civilian presences in Kosovo continued to proceed on the basis of the Special Envoy's proposals, "which provide for independence for Kosovo, supervised by the international community". He described the main elements of the proposed overall settlement and said that they struck "the right balance between recognising the aspirations of the vast majority of Kosovo's population who want independence, whilst providing extensive and effective safeguards and reassurances to Kosovo's non-Albanian communities, notably the Kosovo Serbs". All in all, he described the Ahtisaari proposals as "rigorous oversight and enforcement by the international civilian and military presences", consisting of:

—  an International Civilian Office, responsible for ensuring settlement implementation and headed up by an International Civilian Representative, double-hatted as the EU Special Representative;

—  a European Security and Defence Policy (ESDP) mission responsible for policing and rule of law;

—  an OSCE mission to support Kosovo's democratic transition; and

—  an international military presence provided by NATO's 16,000-strong Kosovo Force (KFOR).

4.11 To ensure the effectiveness of this complex international set-up, the International Civilian Representative (ICR) would be given an overall co-ordinating role, chairing a Co-ordination Committee comprising the Head of the International Military Presence, the Head of the ESDP mission and the Head of the OSCE mission. The ICR would be appointed by, and report to, an International Steering Group (envisaged as comprising the countries of the Balkans Contact Group — France, Germany, Italy, Russia, UK and the US); the ICR International Civilian Representative might also be required to report to the UN Security Council.

4.12 In Kosovo the ICR was to have overall responsibility for the implementation of the settlement and for upholding its provisions, and would be the final authority in Kosovo regarding interpretation of the settlement. That said, the then Minister's expectation was that the day to day business of government would be conducted by the Kosovo government, not the International Civilian Representative.

4.13 The ICR would also be double-hatted as the EU Special Representative to further enhance international coherence. The then Minister said that this arrangement would not impact on the EU's autonomy — the two roles would remain distinct even if held by the same person; the European Commission presence in Kosovo would have a separate Head of Office, distinct from the EU Special Representative. The EU Special Representative would be appointed by and accountable to the Council, reporting to it through Secretary General/High Representative Solana and receiving strategic guidance and political input from the Political and Security Committee. The EU Special Representative would have a distinct role from that of the ICR, which would include providing political guidance to the Head of the ESDP mission, offering the EU's advice and support to Kosovo's political development, ensuring the effectiveness of the EU's role in the international presence, and contributing to the development and consolidation of respect for human rights.[16]

The Joint Actions

4.14 In his first 28 January 2008 Explanatory Memorandum, the then Minister for Europe said that the role of this civilian mission would be "to assist the Kosovo authorities, judiciary and law enforcement agencies as they develop and strengthen a multi-ethnic rule of law sector that is free from political interference and adhering to international standards and European best practices." Its tasks would include:

—  "monitoring, mentoring and advising Kosovo institutions on all areas related to the rule of law, including customs, whilst holding certain executive responsibilities;

—  "ensuring the maintenance and promotion of the rule of law, public order and security;

—  "helping ensure that all Kosovo rule of law services are free from political interference;

—  "ensuring that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law; and

—  "strengthening co-operation and co-ordination throughout the whole judicial process, particularly in the area of organised crime."

4.15 The second Joint Action appointed Mr Pieter Feith as the EU Special Representative in Kosovo and set out his mandate. This was, the then Minister said in a second 28 January 2008 Explanatory Memorandum, "based on the objective of securing a stable, viable, peaceful and multi-ethnic Kosovo, which will contribute to regional stability"; his tasks would "include being the channel for the EU's advice and support to the political process, promoting EU political coordination in Kosovo, ensuring a coherent public message, and contributing to the consolidation of human rights and fundamental freedoms in Kosovo."

4.16 The then Minister said that it was important that the EU should play a leading role in strengthening stability in the Western Balkans, as agreed by the European Council on 14 December 2007, when "the Council agreed with the UN Secretary-General that the status quo in Kosovo is unsustainable, and made clear the EU's readiness to assist Kosovo on the path towards stability, including through an ESDP mission." He said that:

—  the mission would focus on local ownership and capacity building, through mentoring, monitoring and advising the Kosovars; be the largest civilian mission to date, with 2200 international civilians; and advance the goal of a stable, viable, peaceful, democratic, multi-ethnic Kosovo, contributing to regional cooperation and stability and committed to the rule of law and to the protection of minorities;

—  the requirement for a military presence to act as external security guarantor would continue to be met by NATO;

—  funding for Common Costs (Mission Headquarters, in-country transport, office equipment etc) would be met from the Common Foreign and Security Policy budget, to which the UK currently contributed approximately 17%; the estimated budget for the first 12 months was €162 million, meaning that the UK would contribute approximately €28 million; and

—  the UK would contribute up to 85 personnel, with these positions to be funded from the Whitehall Peacekeeping Budget, which was a call on the Treasury's central contingency reserve.

4.17 The then Minister also welcomed the appointment of Mr Feith and his mandate, explaining that Mr Feith had a long track record of crisis management in both NATO and the European Union; had been closely involved with Kosovo since he was a senior policy official in the NATO International Secretariat in the late 90s; had headed the successful EU-led Aceh Monitoring Mission in 2005 and 2006; and in 2007 was appointed Director of the EU's Civilian Planning and Conduct Capability and the Civilian Operation Commander for the civilian ESDP missions — he was thus very well placed to provide strategic policy leadership to the international community effort in Kosovo and to work closely with the NATO and EU missions there.

4.18 The then Minister noted that:

—  the budget of €380,000 for Common Costs will met from the Common Foreign and Security Policy budget (meaning the UK would contribute €65,000); and

—  the UK planned to contribute up to five people to the ICR's Office, the funding for which would also come from the Whitehall Peacekeeping Budget.

4.19 Finally, he said that no date had yet been set for agreement of either Joint Action.

4.20 Conscious of the sensitivities and political complexities surrounding the situation in Kosovo, the previous Committee appreciated why the then Minister had brought the Joint Actions forward for scrutiny with no date for their implementation, and accordingly cleared the documents.

4.21 The Joint Action establishing the mission in 2008 provided funding until June 2009. In June 2009, the previous Committee considered a further Joint Action providing funding until the end of mandate in June 2010.

4.22 In her accompanying 21 May 2009 Explanatory Memorandum, the then Minister for Europe (Caroline Flint) says that EULEX Kosovo assumed the lead on rule of law issues from UNMIK, became operational on 9 December 2008 and declared full operational capability on 6 April 2009.

4.23 She confirmed that EULEX Kosovo was now the largest civilian European Security and Defence Policy (ESDP) mission with over 1700 international staff deployed across Kosovo. She explained that the mission would monitor, mentor and advise Kosovo institutions on all areas related to rule of law including police, judiciary, penitentiary and customs, "with certain executive responsibilities (notably on war crimes, organised crime and terrorism)" and was supporting "the Kosovo institutions, judicial authorities, and law enforcement agencies in developing sustainability and accountability, ensuring multi-ethnic systems and services that are free from political interference." EULEX judges and prosecutors were "participating in court hearings and trials, both advising counterparts and under executive powers", and issued verdicts in two war crimes trials. She also noted that:

—  the Office of Missing Persons continued to identify and return remains;

—  EULEX Police and Customs officials were supporting Kosovan officials throughout Kosovo;

—  the customs unit had extended their presence in northern Kosovo with a 24/7 presence at Gates 1 and 31 on the border with Serbia, leading to a reduction in smuggling (particularly oil);

—  the mission was increasing the police presence in northern Kosovo and had acted successfully as second responder to the Kosovo Police Service in recent riots in North Kosovo, in co-ordination with KFOR (the NATO force in Kosovo); and

—  the mission was establishing a liaison office in Belgrade to facilitate dialogue with Serbia.

4.24 The then Minister also noted that the UK reduced its contingent from 62 to 32 seconded staff in April following a reduction in the level of funding available to second staff to European Security and Defence Policy missions in the financial year's budget (the Minister recalled a Written Ministerial Statement of 25 March 2009), but said that "the UK still retains secondees in key positions in the mission, for example the Deputy Head of Mission, Chief Reporting Officer and in the justice section."

4.25 With regard to the new financial reference amount, the then Minister said that:

—   the budget would be €100 million for 2009 and €45 million reserved for January — June from the 2010 budget, giving a total of €145 million until the expiry of the mission's mandate on 14 June 2010;

—  the UK's 17% contribution was an estimated €24.7 million (£22 million); and

—  the UK's 32 secondees in the mission would be funded through the Tri-departmental (FCO, MOD and DfID) Conflict Prevention Pool.

4.26 Finally, the Minister confirmed that the requirement for a military presence to act as external security guarantor would continue to be met by NATO.

The previous Committee's assessment

4.27 Although it had no questions on this extension per se, and accordingly cleared the document, the previous Committee reported it to the House because of the widespread interest in the House in the political context surrounding EULEX Kosovo's deployment and operation

The Council Decision

4.28 This Council Decision extends the mandate of the European Union Rule of Law Mission in Kosovo (EULEX Kosovo) for two years until 14 June 2012, including an initial technical extension until 14 October 2010 to allow time for the preparation of revised planning documents. EULEX will continue to focus on the improvement of the rule of law in Kosovo with the aim of supporting Kosovo rule of law institutions to reach EU standards, and to support the Kosovo authorities by monitoring, mentoring and advising the judiciary, police and customs, and exercising limited executive functions.

4.29 In his Explanatory Memorandum of 2 June 2010, the Minister for Europe at the Foreign and Commonwealth Office (Mr David Lidington) explains that the detailed planning documents which underpin the Council Decision have been revised to include the following minor changes:

—  to increase mission presence and visibility in the north of Kosovo;

—  to establish a Mission Analytical Capability (MAC), which will analyse how internal and external factors impact on mandate implementation;

—  to establish a Strategic Planning Group and the Strategic Planning Implementation Committee, to enhance cooperation between the three components (customs, judiciary and the police) and improve the mission's strategic direction; and

—  minimal structural changes to the mission, to improve administration.

The Government's view

4.30 The Minister says that since it assumed the lead on rule of law issues from the UN Mission in Kosovo (UNMIK) and became operational on 9 December 2008, he believes that EULEX has made significant progress:

"With its mandate of 1950 international staff, EULEX has established itself throughout Kosovo and the advice of mission experts is having a positive impact on the development of Kosovo's police, customs and judicial system. Particular positive steps of note are: the return to work of 318 Kosovo Serb police officers who are being reintegrated back into the Kosovo Police Service; an agreement of a protocol with Serbia on cooperation over police issues; the trying of a number of war crimes cases; the judicial component's inroads into the backlog of cases that were not investigated under UNMIK ; and, most recently, the mission has started to deliver on its promise to investigate "big fish", and is investigating the Transport Minister for corruption. There has been no large scale violence and EULEX has responded calmly and effectively to public order disturbances."

4.31 The Minister supports the extension of the mandate for two years and believes that EULEX has "an indispensable role to play" in Kosovo:

"EULEX Kosovo is an important international presence in enabling Kosovo to meet EU standards in rule of law and key in tackling organised crime and corruption, which is exported from Kosovo throughout the EU. Improving the rule of law in Kosovo is central to stability in the Western Balkans and, following the drawdown of UNMIK, EULEX is the main mechanism to help Kosovo achieve reform in these fields. A two year mandate extension is, therefore, important in providing continuity and increased stability in Kosovo, and the central sign of EU commitment to improving the rule of law in Kosovo in order to support its European perspective. To ensure that this political commitment is communicated to the people of Kosovo, this extension will be included in the communication and information strategy for the mission."

4.32 The Minister then says that, having established itself on the ground in a difficult environment, the mission is now moving into a new phase of its mandate:

"The mission must work to deliver the more high profile results that international partners and Kosovans would like to see. In order to move forward, the mission needs to tackle more effectively the challenges of organised crime and corruption. Delivering results in the north, a Serb-majority area of Kosovo, is very important to EULEX's credibility with the people of Kosovo. The Operations Plan, which underpins the Council Decision, sets out a more active and visible presence in the north where EULEX's activities are central to restoring full customs control, and bringing effective justice and policing to the north."

4.33 He goes on to say that, to have greater effect:

"it is essential that the mission develops a sharper strategic focus centred on its long term goals, with realistic interim benchmarks of what it will achieve. This renewed focus should be coupled with an enhanced awareness of the political ramifications of the mission's technical decisions. To improve the strategic direction of the mission, the Operations Plan lays out the establishment of a Mission Analytical Capability (MAC). A MAC informs the Head of Mission's decision making, as it seeks to enhance situational awareness and analysis. The mission must also ensure that the different components are all pulling together in the same strategic direction and working effectively with each other."

4.34 In addition, the Minister says, the new mandate provides for:

"a Strategic Planning Group and a Strategic Planning Implementation Committee to be established within the mission in order to enhance cross-component cooperation and the strategic direction of EULEX, particularly relating to organised crime. The Operations Plan also sets out changes to the mission structure, in order to improve mission administration. The overall staffing numbers of the mission are unaffected by the mandate changes and remain at 1950."

4.35 Finally, the Minister says:

"In order for the mission to make further progress against its objectives in the next two years, support from Member States and EU Institutions is key. Continued cooperation and coordination with all other actors in theatre, in particular the double-hatted EU Special Representative and International Civilian Representative, is crucial to the mission delivering results."

4.36 With regard to the Financial Implications, the Minister says that funding for the technical extension until 14 October will come from under-spends in the current mission budget of €265 million; and that funding for the mission thereafter will be agreed in the autumn, at which time he says he will write again to the Committee. He also notes that the UK currently provides funding for 31 personnel in the Mission.

4.37 The Minister concludes by noting that it is planned to submit this Council Decision for agreement to the ECOFIN Council on 8 June 2010.


4.38 It is hard to dispute the view that improving the rule of law in Kosovo is central to stability in the Western Balkans; and, as the Minister notes, with the ending of UNMIK, EULEX Kosovo is now the only show in town when it comes to helping Kosovo achieve reform in this field. However, though implicit, there are a number of disturbing features in what the Minister says about the changes to EULEX Kosovo's Operational Plan — not in the sense that the proposals are in any obvious sense misguided, but in the sense that only now are they being brought into being.

4.39 To say that the Mission now needs a sharper strategic focus centred on its long term goals, with realistic interim benchmarks of what it will achieve, coupled with an enhanced awareness of the political ramifications of the mission's technical decisions, strongly suggests that all of this has been lacking over the past year or more. Likewise with the establishment of a mechanism to inform the Head of Mission's decision making via enhanced "situational awareness and analysis"; if the mission "must also ensure that the different components are all pulling together in the same strategic direction and working effectively with each other", we are bound to wonder about the effectiveness of its leadership thus far. And also to wonder why, only now, are mechanisms being established "to enhance cross-component cooperation and the strategic direction of EULEX, particularly relating to organised crime."

4.40 We are also unclear as to precisely what the Minister means when he refers to "support from Member States and EU Institutions [as] key" — the suggestion being that this has been lacking. And when he talks of "continued cooperation and coordination with all other actors in theatre, in particular the double-hatted EU Special Representative and International Civilian Representative" as being "crucial to the mission delivering results", we are again unclear as to what cooperation is lacking with whom, and why, and who it is that is, presumably, failing to cooperate and coordinate with the EUSR/ICR.

4.41 There is, of course, a wider backdrop at which the Minister may be hinting. Though some 69 countries have now recognised it, Russia, China, India and five European Union members still refuse to recognise Kosovo's independence. Also, in October 2008, the legality of Kosovo's declaration of independence was referred to the International Court of Justice in The Hague, leaving open the possibility of an advisory opinion whose ambiguity may encourage Serbia to ask the United Nations General Assembly to pass a resolution demanding new talks on Kosovo's status. In the meantime, while most of Kosovo's 130,000 Serbs live in small southern and central enclaves, almost half live in a sliver of land north of the River Ibar — a region that is part of Kosovo, but where it seems that the government's writ does not run (local elections on 30 May being held under Serbian auspices). According to respectable media reports, many Kosovars would be "happy to be shot of their indigestible north", with talk of trading it for Albanian-inhabited parts of south Serbia, while many Serbs believe that their country could give up its claim on Kosovo south of the Ibar river.[17] Even if exaggerated, it would seem that the political undercurrents in Kosovo are such that, regardless of the proposed internal administrative changes, EULEX Kosovo will continue to have a very hard row to hoe.

4.42 At a more practical level, we are puzzled as to how a budget that the then Minister for Europe told the previous Committee in June 2009 would be a total of €145 million from then until the expiry of the mission's mandate on 14 June 2010 has now grown to €265 million.

4.43 We recognise that, by now, this Council Decision has been adopted. Nonetheless, we recommend that it be debated in the European Committee, so that the Minister for Europe may have the opportunity to respond to our observations and interested Members may be given the opportunity of raising with him any concerns of their own about Kosovo and the EU's role there.

15   See headnote: (29379) - and (29380) - HC 16-x (2007-08), chapter 10 (30 January 2008). Back

16   Reported to the House in July 2007; see (28744) - , (28745) - : HC 41-xxx (2006-07), chapter 6 (11 July 2007) and HC 41-xxxii (2006-07), chapter 10 (25 July 2007). Back

17   See "Serbia and Kosovo: the border question" in the 5-11 June 2010 edition of "The Economist". Back

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