15 Common Security and Defence Policy:
EULEX Kosovo~
| (36004)
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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
| EM of 12 May 2014
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| Previous Committee Report
| None; but see (34909) —: HC 83-xli (2013-14), chapter 12 (9 April 2014) and 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
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Background
15.1 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.
15.2 With a planned 2,200 international
civilians, EULEX Kosovo was to be the largest civilian ESDP 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.
15.3 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 2013 Report relates,[70]
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.
15.4 In 2012, the Committee cleared
the present mandate and a year-one budget of €111 million
budget, 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
15.5 This Council Decision set out a
new budget of €110 million to cover the period to 14 June
2014. The Minister for Europe's (Mr David Lidington) thorough
exposition (see paragraphs 27.15-27.21 of our 2013 Report) 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.
15.6 We understood 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 early in 2014. In the meantime, we cleared
the Council Decision.[71]
Developments in 2014
15.7 In February, we drew the Minister's
attention to a report in the 23 January issue of European Voice,
according to which the EU High Representative (Baroness Ashton)
was about to present proposals to Member States involving:
· 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
· the retention of some executive
powers in northern Kosovo, while "elsewhere EU officials
would be reduced to advising local officials".
15.8 The report also 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 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 the views expressed by
Eduard Kukan MEP, then chair of the EP delegation to Kosovo, that
he and his fellow MEPs believed that EULEX should continue beyond
2016.
15.9 The Minister explained that, despite
repeated pressure on the EEAS to release its Strategic Review
in summer 2013, it had not done so until 11 February, which would
severely curtail the time for a considered approach to them.
The Review did indeed propose downsizing EULEX's executive and
capacity-building divisions: but most of EULEX's current capacity-building
activities would be taken on by Commission-funded project work,
reflecting a key recommendation of the European Court of Auditors'
earlier report. The Minister agreed that EULEX was unwieldy in
its current size, and would benefit from specialising in the areas
which would make the most impact in the next two years. EULEX
would not be pulled out in 2016: instead, the Strategic Review
would be used "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."
15.10 EULEX's Executive division —
covering policing and sensitive criminal cases — would remain
in both the north and south of Kosovo, but in a smaller way.
15.11 The Review recommended 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 recommended that the head
of the SPRK should in future be a Kosovan and that the Kosovan
prosecutors take on a greater level of responsibility. These proposals
on SPRK were broadly right: however, he would only accept the
handover of the SPRK to a local chair if there were ample safeguards
in place to ensure that ongoing cases were protected from political
interference or other intimidation. This approach was not being
influenced by Kosovo's upcoming elections: progress in the rule
of law was essential for Kosovo's EU track, and he had been "firm
that if we are not credible now it will serve us ill later down
the line."
15.12 The Minister then wrote again
about other problems delaying the passage of the Review, which
might reduce the time available for parliamentary scrutiny of
the forthcoming Council Decision:
¾ a sensitive balance needed
to be struck between local ownership and necessary autonomy for
international prosecutors and judges, and the discussion over
SPRK safeguards was taking longer than anticipated;
¾ despite UK lobbying on this
issue since July, the EEAS had left it too late to coordinate
the substantial handover of EULEX-led capacity-building activities
to the EU Special Representative's, which would help make EULEX
less unwieldy; this meant that EULEX could not hand over any of
its capacity-building in a considered way until June 2016;
¾ the EEAS had also indicated
that the technical documents that accompany any mandate renewal
might not be drafted in time for a Council Decision to be passed
by June, but instead be able only to draft a budget for the first
four months of the new mandate;
¾ finally, the EULEX Council
Decision would also include the next steps for the Special Investigative
Task Force (SITF):[72]
given continuing concerns about witness protection in Kosovo the
SITF now needed an extensive out-of-country trial process, which
required difficult negotiation with Kosovo to ensure that a credible
trial was brought to fruition, but under intense time pressure
as the statute of limitations for many of the alleged crimes expired
in June.
Our assessment
15.13 We found it extraordinary that,
once again, the Minister was expressing disappointment at EEAS
mismanagement. We therefore asked that, when he submitted the
Council Decision for scrutiny, he should tell us what action he
had taken directly with the EU High Representative about this
serial failure on the EEAS's part, which appeared to have significant
implications both for EULEX and for parliamentary scrutiny.
15.14 We also drew these developments
to the attention of the House because of, as he put it, "the
importance of rule of law issues in Kosovo and the sensitive SITF
case", so that interested Members might raise them further
with the Minister, should they so wish.[73]
The draft Council Decision
15.15 This draft Council Decision proposes
a two year extension to the mission mandate; and an interim budget
of €34 million to cover the period 15 June 2014 to 14 June
2015 (a transitional period of four months, to be followed by
a further eight months under the new mandate).
The Government's view
15.16 The Minister reiterates that "improving
the rule of law in Kosovo is central to delivering our goal of
a stable, prosperous Kosovo, irreversibly on the path towards
EU and NATO membership", describing the success of EULEX
as "therefore directly in the interests of the UK" and
noting that the UK currently seconds over 40 staff to the mission.
15.17 The Minister then continues as
follows:
"Considerable progress has
been made but continued difficulties with the Rule of Law and
the need for an EU role in northern Kosovo as a result of work
on the implementation of agreements reached through the Belgrade-Pristina
Dialogue make it necessary for EULEX to have a continued, but
smaller and more focused presence in Kosovo".
PROGRESS TO DATE
"There have been significant
achievements across all areas of EULEX activity. A notable success
has been support to the normalisation of relations between Pristina
and Belgrade. EULEX helped ensure the successful conduct of re-run
elections in north Kosovo in December after violence in the first
round that local authorities were unable to contain. It has assisted
with the gradual dismantling of Serbian state parallel structures
in northern Kosovo, such as facilitating the integration of Serb
police officers into the Kosovo police. EULEX has also played
an important intermediary role in facilitating international legal
co-operation between Kosovo and Serbia, providing expert advice
to the various working groups.
"EULEX has also made progress
on its objectives of improving the Rule of Law through both executive
functions and assistance to the Kosovo authorities. As of February
2014, EULEX judges had delivered 513 verdicts including 374 verdicts
in criminal cases, including corruption, organised crime, money
laundering, war crimes and human trafficking and 141 verdicts
in civil cases. EULEX mentoring and advising has contributed to
Kosovo's progress towards the requirements of the visa liberalisation
roadmap including establishing a processing procedure for asylum
seekers.
PROPOSED NEW MANDATE
"The UK has consistently argued
that EULEX needs to become a smaller and more focused mission.
The EEAS has conducted a strategic review of EULEX that largely
accepts these UK recommendations. The mission, during the proposed
two-year mandate extension, will now focus its activity on the
remaining challenges of the north and on clearing the current
pipeline of serious criminal cases, while EULEX's role in monitoring
and mentoring the Kosovo authorities will be reduced, with some
of it eventually handed over to the European Commission or local
authorities to a 2016 timetable. The mission's executive activities
will also wherever possible be carried out jointly with local
institutions to ensure the mission's impacts are sustainable and
there is a clear exit strategy, while retaining strong safeguards
for the independence of judges and prosecutors. However, across
the rest of the mission, there will be substantial cuts reducing
the mission's budget by approximately €20m, as explained
below. It has been difficult for Kosovo to accept this continuing
role for EULEX, but the state of the rule of law as assessed by
EULEX and independent observers remains concerning, while relations
between Kosovo and Serbia have not yet reached the point where
EU facilitation is no longer required in the north. The EU will
regularly continue to asses and monitor Kosovo's progress in Rule
of Law and will reserve the right to assert a more robust role
if need be.
SPECIAL INVESTIGATIVE TASK FORCE
"In April, following considerable
international mediation, Kosovo agreed in principle to create
a special court to hear any trials arising from the SITF's investigations.
Due to concerns about the risk of witness intimidation and the
security of evidence, this court will be located abroad, in an
EU Member State, and staffed entirely by international staff.
EULEX will have an important role in assisting Kosovo with the
operation of this court, which will play a key role in ensuring
justice is done in this very sensitive case.
THE COUNCIL DECISION
"the Council Decision presented
at this stage is unfortunately a budget for four months only to
allow time for the reforms and cuts set out above to be finalised.
This is due to delays with the start of the EULEX review and the
release of documents by the EEAS. I will be writing personally
to Baroness Ashton about the difficulties these delays cause both
for proper policy-making and to appropriate Parliamentary scrutiny.
However, we support this approach under the circumstances as it
would be disastrous for EULEX's executive mandate, and thereby
its ability to arrest and prosecute serious crimes, to be interrupted.
Nevertheless, the UK has insisted that we cannot agree these interim
arrangements until we have more clarity on the long-term future.
I am pleased that this sensible approach has been accepted in
Brussels and the EEAS is now working to finalise detail on the
permanent reforms and cuts along the lines set out above for initial
discussions among the Member States before the interim budget
is formally agreed. Unfortunately, however, this process will
not be completed in time for a budget to be available for parliamentary
scrutiny before the current budget expires, and so I ask that
you focus for the time being on the largely procedural current
proposal for an interim budget. I will write to the Committees
again in due course once the relevant final budgets are available,
at which point there will be a significant opportunity to scrutinise
the substance of the proposed reforms to EULEX."
BUDGET
"The interim budget for the
period of 15 June 2014 to 14 October 2014 is €34,000,000.
This budget has been calculated as an extrapolation of the existing
budget. We expect the budget for the 8 months from 14 October
2014 to contain cuts, but will not gain sight of a Council decision
and BIS until July.
"An informal estimate
of the budget for the next year (including the transition period)
is €90m, based on our expectations from informal working
group discussions. This figure would represent a reduction of
€20m on the 2013/14 budget of €110m."[74]
Conclusion
15.18 Regrettably, the picture painted
by the Minister of EEAS dilatoriness comes as no surprise: both
specifically because of the earlier exchanges with him and (as
he knows) more generally (e.g., the untimely submission of many
packages of restrictive measures, and of EU Special Representative
(EUSR) mandates). We look forward to receiving a copy of his
letter to the EU High Representative (Baroness Ashton), and of
her reply: though, given that he has made several such representations
in the past, to no apparent avail, we hold out no great hopes
of a constructive response.
15.19 So far as EULEX itself is concerned,
we are where we are: unsatisfactory as the EEAS's performance
has been, we have no wish to make matters even more difficult
for the mission. We therefore now clear this document.
15.20 However, we look forward to
the promised further Council Decision in the autumn, with the
full budget, and information about the OpPlan; about the substance
of the proposed reforms; and about developments in EULEX's work
in the interim.
Annex: the Minister's overview
of the proposed interim budget ~
| Budget Line
| 15 June 2013 - 14 June 2014
(Euros)
| 15 June 2014 - 14 October 2014
(Euros)
|
| Personnel |
76,974,709 |
25,112,609.60 |
| Missions |
2,116,635 |
506,300.00 |
| Running costs
| 24,677,262
| 7,089,796.09
|
| Capital Costs
| 2,608,714
| 473,331.67
|
| Representation
| 104,000 |
34,667.00 |
| Contingencies
| 3,518,680
| 783,295.64
|
| TOTAL
| 110,000,000
| 34,000,000
|
"The interim budget is, on
the whole, a continuation of the current budget:
"Personnel: This is
based on staffing in April 2014;
"Missions: This expenditure
relates to the implementation of the mandate including transport,
accommodation and daily allowances;
"Running Costs: Includes
transportation running costs, IT, Communications, rent and services
for premises, security and training. Increases are negligible.
I note that the number of soft-skin vehicles will be reduced
from 945 to 848 during this period;
"Capital costs: Contracts
in respect of a communications framework and some infrastructural
work for the police compound will be after 14 June 2014 at cost
of €150,000 and €165,665 respectively; A new line is
included to cover SITF equipment (€110,166.67);
"Representation: This
subhead shows a negligible increase of 0.10%;
"Contingencies: This
is in place to cover unforeseen costs and is calculated at 2.3%
of budget provision.
"The EEAS have not yet released
a draft Budget Impact Statement (BIS) for the period following
14 October 2014, so we are therefore unable to provide the Committee
with a detailed interrogation of the various subheads. However,
once released, this information will be scrutinised rigorously
by UK officials to ensure good financial management and value
for money. I will provide the Committee with a detailed description
of the budget at the relevant time.
"We would anticipate that the
new budget will make reductions in personnel costs, mission expenditure,
running costs and capital expenditure. This will help EULEX progress
towards smaller and more targeted executive and capacity-building
divisions. An example of will be the down-sizing of EULEX Customs
and Policing, although this will be countered by increased police
support in the north of Kosovo.
"Staffing levels should reduce,
details of which we will draw from the O Plan. The UK contributes
to this pool with over 40 EULEX secondees in strategic positions,
including Special Adviser to the Head of Mission, the Regional
Co-ordinator to the North, the Head of Kosovo Special Prosecution
Office (SPRK), Prosecutors and Judges. We are currently reviewing
the extent of UK presence in Kosovo, to ensure that we retain
positions that will be relevant under the new mandate. UK officials
will continue to evaluate closely the impact of EULEX over the
next year. The mission's mandate must remain flexible and appropriate
for its operating environment, whilst maintaining value for money."
70 HC 83-iii (2013-14), chapter 27 (21 May 2013). Back
71
See headnote: HC 83-iii (2013-14), chapter 27 (21 May 2013). Back
72
A part of EULEX since 2011, which has been investigating the allegations
in the 2010 Marty Report of organ trafficking and other serious
crimes committed immediately after the 1999 conflict. Back
73
See headnote: (34909) -: HC 83-xli (2013-14), chapter 12 (9
April 2014). Back
74
See the Annex to this chapter of our Report for further detail. Back
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