4 European Security and Defence Policy:
EULEX Kosovo
| (31677)
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| Council Decision amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO
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| Legal base | Articles 28 and 42(3) TEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 2 June 2010
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| Previous Committee Report | None; 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)
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| To be discussed in Council | 8 June 2010 Economic and Financial Affairs Council
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; for debate in European Committee B
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Background
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.
Conclusion
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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