12 Common Security and Defence Policy:
EULEX Kosovo
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| Council Decision amending and extending 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, 42(4) and 43(2) TEU; unanimity
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| Department
| Foreign and Commonwealth Office
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| Basis of consideration
| Minister's letters of 25 February and 24 March 2014
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| Previous Committee Reports
| HC 83-iii (2013-14), chapter 27 (21 May 2013); also see (33877) —: HC 86-iii (2012-13), chapter 13 (23 May 2012); and (34432)—: HC 86-xxxvi (2012-13), chapter 12 (20 March 2013)
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| Discussion in Council
| June 2013
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| Committee's assessment
| Politically important
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| Committee's decision
| Cleared (decision reported on 21 May 2013); further information provided
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Background
12.1 The
EU has had a central role in post-conflict Kosovo: firstly, as
part of the UN Interim Administration Mission in Kosovo, or UNMIK;
and latterly, through the EU Special Representative (EUSR)/Head
of the EU Delegation and this civilian ESDP mission, EULEX Kosovo.
12.2 With a planned 2,200 international
civilians, EULEX Kosovowas to be the largest civilian CSDP mission;
focused on local ownership and capacity building, through mentoring,
monitoring and advice; aimed at advancing 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.
12.3 Since its inception in 2008, both
the previous and the present Government have seen EULEX Kosovo
as central to their Balkans strategy and a vital presence in enabling
the Kosovan rule of law institutions (Police, Judiciary and Customs)
to reach EU standards —particularly in tackling organised
crime and corruption. More recently, as our previous Report relates,
the Minister for Europe (Mr David Lidington) has focussed on pushing
hard for EULEX to increase its presence and activity in northern
Kosovo, driving down overall costs and addressing the EULEX's
ability to proceed with investigations and prosecutions concerning
the allegations in Senator Dick Marty's Council of Europe report
on organ trafficking.
12.4 In 2012, the Committee cleared
the present mandate and a year-one budget of €111 million
to cover June 2012 to June 2013. As a result of a Strategic Review,
the mission was revised to: refocus existing resources on northern
Kosovo so as to increase mission presence there; increase emphasis
on EULEX's executive responsibilities, notably in the justice
sector; and downsize and restructure the mission to reflect the
shift in mandate.
The extant Council Decision
12.5 This Council Decision setout a
new budget of €110million to cover the period to 14 June
2014. It was analysed in detail in by the Minister for Europe
in his Explanatory Memorandum of 3 May 2013 (see paragraphs 27.15-21
of our previous Report).
Our assessment
12.6 The Minister's thorough exposition
illustrated clearly both his and his officials' commendable persistence
and focus on improving the mission's effectiveness and value for
money, which was plainly bearing fruit. This was all the more
important because one of the main failings identified by the European
Court of Auditors, examining the 2007-11 period, was a lack of
effective collaboration between the mission and the EU delegation
— and changing that would be essential in underpinning the
successful implantation of the April 2013 agreement between Serbia
and Kosovo, given the role that Commission-led projects would
have in shaping the mission's post-2014 role and size.
12.7 We understood that the new head
of mission would be providing a six-month report on performance
under this mandate, and that towards the end of the year Member
States would begin the process of determining what revised mandate
should replace the present one in June 2014, via a further Strategic
Review. We accordingly asked the Minister to update the Committee
on both these matters early in 2014.
12.8 In the meantime, we cleared the
Council Decision.[43]
The Committee's letter of 12 February 2014
12.9 The Committee wrote to the Minister
concerning a report in the 23 January issue of European Voice,
according to which the EU High Representative for Foreign Affairs
and Security Policy and Vice-President of the Commission (Baroness
Ashton) was about to present to Member States:
· a "downgrade" of
EULEX Kosovo, "stripping it of powers and staff";
· renaming it, having its 2,250
staff "cut back sharply" and closing it in 2016;
· a mandate that "would
mean that, in most of Kosovo, the EU would no longer have the
power to launch and manage prosecutions involving war crimes,
terrorism, corruption and property and privatisation cases";
and
· while some executive powers
would be retained in northern Kosovo, "elsewhere EU officials
would be reduced to advising local officials".
12.10 The Committee also noted that
the report talked of:
· pressure from the Kosovar
government to pursue this course of action, so as to boost the
re-election prospects of a pro-EU prime minister;
· the proposal having to "be
squared" with the European Commission — who, the Committee
recalled, did not emerge with plaudits from the Court of Auditors
report on their "rule of law" work thus far in Kosovo;
· the concern in the Commission's
most recent progress report on Kosovo about persistent problems
with the rule of law, and especially the fight against corruption
and organised crime, and the Commission's view that "Kosovo
needs to actively support Eulex in the implementation of its mandate";and
· views expressed by Eduard
Kukan MEP, a former foreign minister of Slovakia and currently
chair of the EP delegation to Kosovo, that he and his fellow MEPs
believed that EULEX should continue beyond 2016;
12.11 The Committee accordingly asked
the Minister for his comments on this report and the issues highlighted
therein, and to know how and when he intended to include it in
the process to which it referred — which, the Committee
trusted, would be well before the submission of any Council Decision
with a revised mandate.
The Minister's letter of 25 February 2014
12.12 The Minister responded as follows:
"Whilst much has been made
of the review in the press, Member States were only officially
presented with the Strategic Review on Tuesday 11 February, despite
regular requests to the EEAS to release it in the summer. This
was, to put it mildly, disappointing. We have not updated you
until now, because the scope of draft proposals keptchanging in
the months leading up to the first discussion on Tuesday. The
Strategic Review is classified as 'Restreint' as it is discussed
by Member States, and I shall write to update you again once an
agreement has been made by the Political and Security Committee
on the response to the review and the way ahead.
"The Strategic Review proposes
downsizing EULEX substantially — although it does not specify
by how much — so that its executive and capacity-building
divisions are smaller and more targeted for the next mandate.
This is not about a hand-over of EULEX responsibilities to local
authorities. Instead, most of EULEX's current capacity-building
activities will be taken on by Commission-funded project work,
reflecting a key recommendation of the European Court of Auditors
report. A continuing executive role has been proposed in the north
of Kosovo, and for serious cases in the south. It is recommended
that the Formed Police Units should continue as de facto second
responder for the next mandate, with continued close cooperation
with KFOR.
"After considering the criticisms
levelled by the European Court of Auditors at EULEX, but also
seeing how the mission has progressed since its last Strategic
Review in 2012, we agree with many parts of the EEAS proposal.
EULEX is unwieldy in its current size, and would benefit from
specialising in the areas which will make the most impact in the
next two years. For instance, EULEX Customs and Policing, which
have achieved good results since September 2012, will downsize
overall. However, there will be increased EULEX police support
in the north of Kosovo, which is currently entering a period of
transition following the Dialogue Agreement with Serbia.
"I would like to address some
misleading statements in the European Voice article. First,
there are as yet no staff figures for the next mandate, and there
is no proposal that EULEX will be pulled out in 2016; instead,
we will use this Strategic Review to renew EULEX's already-tangible
benchmarks, so that the mission's progress in the next two years
is assessed before any exit is agreed. Whilst the Review does
propose a new name, most Member States (including the UK) are
not in favour of this. Aside from anything else, significant rebranding
would waste precious resources and time.
"Second, EULEX's Executive
division — covering policing and sensitive criminal cases
— willremain in both the north and south of Kosovo, but
in a smaller way as described above.
"Third, we do not support EULEX
being stripped of powers in ways that affect the independence
of its Executive mandate. The Review recommends that the Special
Prosecutions Office (SPRK), which handles sensitive cases, should
focus on completing successful prosecutions from its current large
case-load for the next mandate (rather than beginning new cases
that can't be completed). It also recommends that the head of
the SPRK should in future be a Kosovan and that the Kosovan prosecutors
take on a greater level of responsibility. Currently, the SPRK
is co-chaired by an international and a local Prosecutor. We think
the proposals on SPRK are broadly right: if Kosovo is to make
sustainable progress in the rule of law, it must begin to take
responsibility for sensitive corruption and war crimes cases (instead
of depending on EULEX to act in its place, and then using EULEX
as a scapegoat when the trials prove unpopular). However, we have
made it clear that we will only accept the handover of the SPRK
to a local chair if there are ample safeguards in place to ensure
that ongoing cases are protected from political interference or
other intimidation. Thus, we have requested an international deputy
in the SPRK, to whom the International Prosecutors would report
and who would remain accountable to EULEX and member states.
"I reject absolutely the suggestion
that this approach is being influenced by Kosovo's upcoming elections.
Progress in the rule of law is essential for Kosovo's EU track,
and we are firm that if we are not credible now it will serve
us ill later down the line. It is crucial that Kosovo is incentivised
to take further responsibility for this progress. Therefore rule
of law features heavily in other EU instruments to complement
EULEX, such as the Dialogue agreement between Serbia and Kosovo,
the Stabilisation and Association Agreement negotiations, and
the visa-liberalisation negotiations. Regarding Commission funding,
Kosovo will continue to receive Instrument for Pre-Accession funding
in the next two years, and the EU Special Representative and EU
Office in Kosovo should increase their staffing levels to support
the handover of EULEX tasks to Commission-funded projects.
"I will update you when the
discussions have reached a more concrete conclusion, and when
there are figures for staffing and budgets. Only then will there
be a draft Council Decision that we will be asked to agree to.
I am of course mindful that this will need to pass through Scrutiny."
The Committee's letter of 5 March 2014
12.13 The Committee said that it now
understood better why it had not heard from the Minister sooner,
noting that the Minister would need no reminding that this was
not the first occasion upon which Member States seemed to have
been unable to persuade the European External Action Service (EEAS)
to produce an important review of some sort, which then left Member
States under unnecessary time pressure. The Committee hoped that
the Minister and his counterpartswere continuing to make this
disappointment plain, and to press for improvements.
12.14 In the meantime, the Committee
thanked the Minister for having been so forthcoming and, in that
same spirit, looked forward to hearing from him further —
when, as he said, discussions had reached a more concrete conclusion
— which, the Committee continued to trust, would be well
before the submission of the next Council Decision with a revised
mandate and budget.
The Minister's letter of 24 March 2014
12.15 The Minister now writes with a
further update on the progress of the Review, and also the Special
Investigative Task Force which sits under EULEX.
"The Review of EULEX is still
under discussion in EU working groups. It broadly accords with
our vision of a smaller, more efficient EULEX. However several
problems have emerged which are delaying the passage of the Review,
and which may reduce the time available for parliamentary scrutiny
of the forthcoming Council Decision.
"The Review recommends that
the Special Prosecutions Office (SPRK), which handles sensitive
cases, should focus on completing its current case-load for the
next mandate, and be chaired by a local prosecutor. We agree with
these proposals, although clearly there is a sensitive balance
to be struck between local ownership and necessary autonomy for
international prosecutors and judges. Because many other Member
States are equally concerned to get this balance right, the discussion
over safeguards is taking longer than anticipated.
"Secondly, the EEAS initially
proposed a substantial handover of EULEX-led capacity-building
activities to the EU Special Representative's Office. We agreed
with this proposal, which would help make EULEX less unwieldy.
Yet despite the UK urging for a joined up approach (we have been
lobbying on this issue since July 2013 at levels from the PSC
downwards in Brussels and via European capitals), the EEAS has
left it too late to coordinate this transition with the Commission,
which presides over EUSR funding streams. It now transpires that
EULEX cannot hand over any of its capacity-building in a considered
way until June 2016. We are continuing to insist on appropriate
budget reductions where achievable, but this will affect the overall
reduction in staff and budget that we had hoped to see in the
next EULEX mandate, and may delay Member State agreement to the
Review.
"The EEAS has also indicated
that the technical documents that accompany any mandate renewal
— such as the Operational Plan, or the annual budget —
may not be drafted in time for a Council Decision to be passed
by June. The EEAS may only be able to draft a budget for the first
4 months of the new mandate (during which time the Strategic Review
will be implemented). We have registered our disappointment with
this mismanagement, and continue to press for these documents
to be drafted by June. We have also made clear that any additional
budgets will be subject to parliamentary scrutiny and that the
EEAS must make sufficient time available for this.
"Finally, the EULEX Council
Decision will also include the next steps for the Special Investigative
Task Force. The task force, a part of EULEX since 2011, has been
investigating the allegations made by Dick Marty in 2010 of organ
trafficking and other serious crimes committed immediately after
the 1999 conflict. The SITF now needs to issue an indictment,
leading to a trial process which must take place in an out-of-country
court given continuing concerns about witness protection in Kosovo.
This will be an extension of EULEX activities, which have involved
out-of-country court arrangements on some previous occasions,
but the SITF case will require extensive internationalisation
given the sensitivity of the cases. This is likely to require
difficult negotiation with Kosovo to ensure that a credible trial
is brought to fruition, but under intense time pressure as the
statute of limitations for many of the alleged crimes expires
in June.
"For these reasons, the time
for a considered approach to the EULEX Strategic Review —
that we had been calling for since July of last year — has
been severely reduced. I will update you when we have more details
and clear timings for a Council Decision, but I fear that we will
need to ask you in due course to prioritise consideration of this
Decision. I hope that this may be possible given the importance
of rule of law issues in Kosovo and the sensitive SITF case. My
officials will remain in close contact with your Clerks about
this issue as it develops."
Conclusion
12.16 It is extraordinary that, once
again, the Minister is expressing disappointment at EEAS mismanagement.
Now, it seems, because of an unexplained failure on its part
to practice what is essential to its proper functioning —
a joined up approach with the Commission — EULEX cannot
hand over any of its capacity-building in a considered way until
June 2016. Moreover, it would seem that an Operational Plan and
annual budget for the intervening two years will not be ready
by the time the Council Decision is due for renewal. When he
submits the Council Decision for scrutiny, we would therefore
like the Minister to tell us what action he has taken directly
with the EU High Representative about this serial failure on the
EEAS's part, which would appear to have significant implications
both for EULEX and for parliamentary scrutiny.
12.17 The Minister also highlights
the time pressures now regarding the SITF. We will of course
deal with the Council Decision itself as speedily as possible.
But we are drawing these developments to the attention of the
House now because of, as he puts it, "the importance of rule
of law issues in Kosovo and the sensitive SITF case", so
that interested Members may raise them further with the Minister,
should they so wish.
43 See headnote: HC 83-iii (2013-14), chapter 27 (21
May 2013). Back
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