ICO AND EULEX:

POWERS, CHAIN OF COMMAND AND ACCOUNTABILITY

INTRODUCTION

Kosova is being governed by two international missions, the ICO and EULEX, both of
which have executive powers for which they are unaccountable in Kosova. According to
Ban Ki-moon’s letter, EULEX will now operate under a UN umbrella as a ‘status-
neutral’ mission, on the basis of Resolution 1244. The details of this relationship are not
yet clear. Nor is it clear whether the ICR/EUSR will be under this umbrella.

1) EULEX

EULEX will be accountable to Javier Solana, the EU Secretary General and High
Representative, whilst its individual staff members will also be accountable to their home
country. When using its executive powers, the head of EULEX must consult with the
ICR. EULEX may include staff from countries within and outside the EU which have not
recognized Kosova.

If EULEX operates under an UNMIK umbrella, it will be so-called ‘status neutral’ and
must also be accountable in some form to the UN Security Council, as well as the EU,
but this has not been clarified.

As well as managing the police, legal and customs institutions of Kosova, EULEX will
select all international judges and prosecutors and chose which cases they will judge.
EULEX has the right to annul the decisions of the Kosova government and to ‘assume
other responsibilities, independently or in support of the competent Kosovo authorities’,
to maintain law, public order and security.

2) The International Civilian Representative (ICR)

The ICR, Pieter Fieth, will be accountable to the International Steering Group for his
powers defined in the Ahtisaari Plan and to Javier Solana, for his powers defined by the
EU. The ICO may include staff from countries within the EU which have not recognized
Kosova.

The ICR is the final authority for the interpretation of the Ahtisaari Plan and its
implementation. As well as approving all judges and prosecutors selected, and appointing
and approving key positions in Kosova’s institutions, the ICR has executive corrective
powers. These powers ‘may include, but are not limited to’ the annulment of laws or
decisions taken by the Kosova Assembly if he decides they breach or are inconsistent
with the Ahtisaari Settlement, or undermine the rule of law. He can also sanction or
remove from office any public official ‘or take other measures, as necessary’ if he
decides these officials have opposed the letter or spirit of the Settlement, and/or if they
have obstructed the work of the ICR or EULEX.

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3) A ‘reconfigured’ UNMIK

The new SRSG is the Italian diplomat, Lamberto Zannier who will be accountable to the
UN Secretary General. In his letter, Bank Ki-moon proposed that the OSCE and EULEX
will operate under a reconfigured UNMIK umbrella (Section III.13). This UNMIK
umbrella will be a so-called ‘status-neutral’ mission (Section III.12). The exact manner
in which EULEX is linked to UNMIK is to be defined in further discussions (Section
V.20)

According to Ban Ki-moon’s proposal (section IV.16), UNMIK’s mandate will be to:
o Monitor and Report
o Facilitate Kosova’s engagement in international agreements
o Facilitate dialogue between Prishtina and Belgrade
o Perform functions related to the implementation of the concessions made by Ban Ki-
moon to Tadic

The legal basis of the UNMIK umbrella in Resolution 1244 and its ‘status-neutral’
position directly contradict the Constitution of Kosova. Its mandate relating to the
proposals for ‘functional partition’ may conflict directly with the competences of the ICR
to oversee the implementation of the Ahtisaari Settlement and the constitutional
obligation of the Kosova institutions to implement this Settlement.

4) Accountability

There is no right of appeal against the decisions of EULEX or the ICR.

There is no oversight within the Kosova institutions for the policy decisions taken by the
ICR or EULEX.

The ICR and his office, the ICO, and EULEX are immune as organizations, individuals
and property, from prosecution in Kosova. It is up to sending states to take legal action
against international staff who commit criminal offences and human rights abuses in
Kosova. The same rule has applied for UNMIK staff.

Until the acting Ombudperson is replaced by a permanent Kosova Ombudsperson, this

institution still has the right to investigate violations of human rights by UNMIK. The
Human Rights Advisory Panel has since the beginning of 2008 investigated alleged
violations of human rights by UNMIK. Its concluding recommendation is not binding on
the SRSG.

Conclusion

Kosova will be governed by three international missions (excluding KFOR):

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o EULEX will be accountable to both UNMIK (in an undefined form) and the EU; the
ICR will be accountable to the EU and an international Steering Group. UNMIK will
be accountable to the UN Secretary General and the Security Council.

o Both the UN and EULEX will be ‘status-neutral’. Meanwhile, the ICR is accountable
to two bodies which include members or organizations which have not recognized
Kosova’s independence.

o None of these missions are accountable in any way to the institutions of Kosova.

PART 1: INTERNATIONAL CIVILIAN REPRESENTATIVE (ICR)

The International Civilian Representative (ICR) is the highest civilian political authority
in Kosova. He is the final authority with the right to interpret the Ahtisaari Settlement. He
has the leading role in ensuring the implementation of this Settlement and in coordinating
the activities of the international presences in Kosova, including EULEX. In order to
implement this Settlement, the ICR has executive correctional powers over the Kosova
institutions.

MANDATE

Pieter Fieth has been appointed as the International Civilian Representative (ICR) by the
International Steering Group, on the basis of Annex IX of the Ahtisaari Plan, and as the
EU Special Representative (EUSR) by the Council of the European Union, on the basis
of Council Joint Action 5576/1/08. These two positions of the ICR and EUSR are
combined in one, known as the ICR.

1) Powers and Responsibilities: The Ahtisaari Settlement, Annex IX

On 28th February 2008, the International Steering Group appointed Pieter Fieth as the
ICR, defining his responsibilities and powers according to Annex IX of the Ahtisaari
Settlement. These include executive competences.

According to Annex IX, Pieter Fieth has the power to:

Interpret the Ahtisaari Settlement

o The ICR is ‘the final authority in Kosovo regarding interpretation of the civilian
aspects of this Settlement’ (Article 2.1a, Annex IX and Article 12.3, General
Principles) This Settlement is the highest legal document in Kosova. It takes
precedence over all other legal provisions, including the Constitution of Kosova
(Constitution, Article 143)

Use executive corrective powers over the Kosova Institutions to ensure

implementation of the Settlement:

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 o He can annul laws or decisions taken by the Kosova Assembly if he decides they
breach or are inconsistent with the Settlement, or undermine the rule of law.
These corrective measures ‘may include, but are not limited to, annulment of laws
or decisions adopted by Kosovo authorities’.(Annex IX, Article 2.1c)
o He can sanction or remove from office any public official ‘or take other
measures, as necessary’ in cases where officials are responsible for serious or
repeated failures to comply with the letter or spirit of the Settlement, and/or if
they have obstructed the work of the ICR or EULEX. ( Annex IX, Article 2.1d)

Monitor other international institutions involved in implementing the Settlement:

o The ICR will coordinate and has the right to monitor the role of other
international actors or organizations in Kosovo, involved in the implementation of
all civilian aspects of this Settlement (Annex IX, Article 2.1e, Article 12.5
General Principles)

Appoint certain public officials:

o An international Auditor General
o An international representative on the Board of the Kosovo Pension Saving Trust
(KPST)

Approve the appointment of certain public officials:

o International judges and prosecutors selected by EULEX
o The Director-General of the Customs Service,
o The Director of Tax Administration,
o The Director of the Treasury,
o The Managing Director of the Central Banking Authority of Kosovo (CBAK)

Supervise the development of Kosova’s internal security institutions

o The ICR will supervise the development of a Kosova institution of civilian
oversight of the Kosova Defense Force and a domestic security agency (Article
2.4 and 2.5)

2) Powers and Responsibilities: EU Council Joint Action 5576/1/08

On 12th February 2008, the Council of the European Union, the main decision-making
body of the EU, appointed Pieter Feith as the EU Special Representative in Kosova
(EUSR), defining his mandate according to EU Council Joint Action 5576/1/08 (hereafter
EUCJA). In contrast to the very specific executive powers defined for the ICR in the
Ahtisaari Settlement, the EUSR is described more as an advisory role for Kosova’s
institutions and EULEX and as a coordinator for the international presences in Kosova.

According to Article 3 EUCJA, Pieter Feith’s mandate is to:

o Offer the EU’s advice and support in the political process;
o Promote overall EU political coordination in Kosovo;

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 o Provide local political guidance to EULEX, including on the political aspects of
the use of its executive responsibilities;
o Ensure consistency and coherence in the public relations of the EU missions;
o Provide political and operational guidance to the Head of the EU Planning Team;
o Contribute to the development and consolidation of respect for human rights and
fundamental freedoms in Kosovo, in accordance with EU human rights policy and
EU guidelines on Human Rights.

The EUSR/ICR does not have binding executive authority over EULEX:
The EUSR/ICR ‘shall provide local political guidance to the Head of the European Rule
of Law Mission in Kosovo (EULEX KOSOVO), including the political aspects of issues
relating to executive responsibilities’ (Article 12, EUCJ).

CAN STATES WHICH DO NOT RECOGNIZE KOSOVA SEND STAFF TO

WORK IN THE ICO?

YES

The only condition is that international staff must be EU nationals

o EU member states can second staff to work in the mission and are responsible for
paying their salaries. All international staff must be EU nationals. (Article 6,
EUCJ)
o The ICR/EUSR has the right to appoint his team, in consultation with the EU
Presidency, the SG/HR and the Commission. (Article 6, EUCJ)

EXTERNAL ACCOUNTABILITY & CHAIN OF COMMAND

The International Steering Group (ISG): the ICR is accountable to this ad-hoc
group which has no legal basis or formal decision-making procedures
o The ICR is appointed by the International Steering Group which consists of:
France, Germany, Italy, Russia, United Kingdom, United States, European Union,
European Commission, NATO (Article 4.1, Annex IX). In May, the ISG
approved six new members: Bulgaria, Estonia, Ireland, Latvia, Luxembourg and
Poland. All of these countries, with the exception of Russia, the EU, EU
Commission and NATO, have recognized Kosova’s independence.
o The UN Secretary General is meant to endorse the appointment of the ICR
(Article 4.1, Annex IX)
o The ICR reports directly to the ISG but he also chairs their meetings. (Article 4.2,
Annex IX)
o The ISG will determine when the mandate of the ICR should end, based upon
whether the ISG assesses that the Settlement has been implemented (Article 5.2)
o The ICR is accountable to the ISG for the executive powers that he derives from
the Ahtisaari Settlement.

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The EU (Secretary General/High Representative) and the Political Security
Committee: the EUSR is accountable to Javier Solana
o The EUSR acts with the authority and the operational direction of Javier Solana,
who holds the position of High Representative for Common Foreign and Security
Policy and Secretary-General of the Council of the EU.
o The EUSR receives political direction and strategic guidance from the EU
Political Security Committee (PSC), which monitors EU common foreign and
security policy. It is composed of political directors of member state’s foreign
ministries and has political control of ‘crisis management operations’. Its role is to
provide a link between the EUSR and the Council of the EU which appointed
him. (Article 4, EUCJ)
o The EUSR is required to report regularly to the SG/HR and to the PSC orally and
in writing. (Article 11)
o The EUSR is accountable to the EU for the competences defined in the EUCJA.

EU member states
o Seconded ICO staff ‘shall remain under the administrative authority of the
sending Member State or EU institution and shall carry out their duties and act in
the interest of the mission of the EUSR.’ (Article 6)

The EU Commission
The EUSR is financially accountable to the EU Commission for the budget allocated to
the EUSR for the first year of operation: 380,000 euros from the EU. (Article 5, EUCJ)

PART 2: EULEX

EULEX is the EU mission responsible for overseeing law, order and security in Kosova.
It will operate in the field of rule of law, in particular in the judiciary, police, border
control, customs and correctional services. In order to maintain law and order and
security, EULEX can use executive corrective powers over the Kosova institutions, under
the guidance of the ICR. According to Ban Ki-moon’s letter, EULEX will operate under
an UNMIK umbrella as a ‘status-neutral’ mission. How it will be linked to UNMIK has
not yet been clarified.

MANDATE

General Yves de Kermabon was appointed Head of Mission of EULEX in EU Council

Joint Action 5928/08 on 4th February 2008. The objective of EULEX is described in this
EUCJA and its executive competences in Annex IX of the Ahtisaari Settlement. These
executive powers are exercised under the guidance of the ICR.

1) EU Council Joint Action 5928/08

EULEX is authorized to operate in Kosova in accordance with Resolution 1244

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 o ‘Overseeing the transfer of authority from Kosovo’s provisional institutions to
institutions established under a political settlement’
o ‘Maintaining civil law and order, including establishing local police forces and
meanwhile through the deployment of international police personnel to serve in
Kosovo’ (Preamble, 1)

EULEX is established as an EU ‘crisis management operation’ to strengthen

‘stability’
o ‘There is a need to prevent, on humanitarian grounds, possible outbreaks of
violence, acts of persecution and intimidation in Kosovo’ (Preamble, 3)
o ‘On 11th December 2006, the Council approved the Crisis Management Concept
for a possible EU crisis management operation in the field of rule of law and
possible other areas in Kosovo.’ (Preamble, 5)
o The mission is part of the EU’s policy to ‘play a leading role in strengthening the
stability in the region’ (Preamble, 7)
o EULEX ‘will be conducted in a situation which may deteriorate and could harm
the objectives of the Common Foreign and Security Policy’ (Preamble, 14)

EULEX will monitor, mentor and advise law and order institutions in Kosova:
o EULEX is a mission which will be ‘conducted under European security and
defense policy (ESDP)’ (Article 2)
o EULEX will ‘fulfill its mandate through monitoring, mentoring and advising,
while retaining certain executive responsibilities.’ (Article 2)
o It will help in ‘ensuring that these institutions are free from political interference
and adhering to internationally recognized standards and European best practices’.
(Article 2)
o It will ensure that ‘cases of war crimes, terrorism, organized crime, corruption,
inter-ethnic crimes, financial/economic crimes and other serious crimes are
properly investigated, prosecuted, adjudicated and enforced’, and where
appropriate, by international officials working with or independently of Kosova’s
institutions. (Article 3.d)
o EULEX will consist of a police, justice and customs mission operating within
Kosova’s institutions, which are part of one unified ESDP mission (Article 6).
Personnel will be located within the Kosova Police Service, relevant ministries,
judiciary, Kosova Property Agency, Kosova Correctional Service and Kosova
Customs Service.

EULEX will have the right to use executive powers:

o It will ‘ensure the maintenance and promotion of the rule of law, public order and
security, including, as necessary, in consultation with the relevant international
civilian authorities in Kosovo, through reversing or annulling operational
decisions taken by the competent Kosovo authorities’ (Article 3.b)
o EULEX has the right to ‘assume other responsibilities, independently or in
support of the competent Kosovo authorities, to ensure the maintenance and
promotion of the rule of law, public order and security, in consultation with the
relevant Council agencies’ (Article 3.h)

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2) Powers and Responsibilities: Ahtisaari Settlement, Annex IX

According to Annex IX of the Ahtisaari Plan, EULEX has the following competences,
exercised under the guidance of the EUSR/ICR

Legal system (Article 2.3)

o The authority to ensure that cases of war crimes, terrorism, organised crime,
corruption, inter-ethnic crimes, financial/economic crimes, property related cases
and other serious crimes are investigated, prosecuted, judged and decisions
implemented effectively. Investigation may be by international investigators,
prosecutors or judges, acting with, or independently from the Kosovo authorities.
(Article 2.3a,b,c,d)
o The head of EULEX has the right to determine the criteria upon which cases are
selected for international prosecutors and judges. (Article 2.3, b,c)
o EULEX has the authority to monitor, mentor and advise on all areas related to the
rule of law. (Article 2.3g)

Undefined limit to security powers

o EULEX has the authority to assume other responsibilities independently or with
the Kosovo authorities in order to maintain and promote the rule of law, public
order and security (Article 2.3 e) It is not clarified whether these are powers to be
used only in an emergency or in the standard process of governance.

Correctional Powers
o In consultation with the ICR, EULEX has the authority to reverse or annul
operational decisions taken by the competent Kosovo authorities, to ensure the
maintenance and promotion of the rule of law, public order and security; (Article
2.3f)

CAN STATES WHICH DO NOT RECOGNIZE KOSOVA SEND STAFF TO

WORK IN EULEX?

YES

International staff in EULEX do not have to be EU nationals

o EULEX has the authority to appoint mission personnel, including judges and
prosecutors who are then approved by the ICR (Article 2.3i, Annex IX; Article 4,
EUCJA)
o Most staff will be seconded by member states or EU institutions which will pay
the costs of their salaries etc. (Article 9.2)
o EULEX can also recruit international and local staff on a contractual basis.
(Article 9.3)
o Third states can also second staff to EULEX if no qualified applications are
received from member states (Article 9.4) Although in Article 13, which is

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 dedicated to third states, this condition is not included. It says that third states can
contribute to EULEX as long as they pay the salaries of their staff.

Third states, which send international staff to EULEX, will have the same rights in
day-to-day management of EULEX as EU member states
o ‘Third states making contributions to EULEX Kosovo shall have the same rights
and obligations in terms of day-to-day management of EULEX Kosovo as
Member states taking part in it’ (Article 13.2) Their participation should be
‘without prejudice to the decision-making autonomy of the EU’ (Article 13.1)

All seconded international staff will remain under the full command of their sending
state:
‘All seconded staff shall remain under the full command of the national authorities of the
seconding State or EU institution concerned. National authorities shall transfer
Operational Control (OPCON) of their personnel, teams and units to the Civilian
Operation Commander (Article 7.4, EUCJA)

EXTERNAL ACCOUNTABILITY & CHAIN OF COMMAND

The EU (Secretary General/High Representative) and the Political Security

Committee: EULEX is accountable to Javier Solana
o EULEX is under the political control and strategic direction of three EU bodies.
o Strategic command and control of EULEX is based in Brussels in the
CPCC (Civilian planning and conduct capability). The Civilian Operation
Commander of the CPCC is Kees Klompenhauwer.
o The CPCC acts under the authority of the EU Political and Security
Committee (PSC) and under the final authority of Javier Solana, the
SG/HR. (Article 7)
o The Council of the EU on the recommendation of Solana, decides when the
EULEX mission will end. (Article 12. 2)
o The Civilian Operation Commander, Mr Klompenhauwer, provides the Head of
Mission, Yves de Kermabon with advice and technical support (Article 7.2
EUCJA)
o The Head of Mission, Yves de Kermabon, commands and controls EULEX staff
and resources. (Article 8)
o The Civilian Operation Commander, Mr Klompenhauwer and the EUSR (Pieter
Fieth) are required to consult each other as required (Article 7.6)
o The Head of Mission, Yves de Kermabon receives local political guidance from
the EUSR regarding the political aspects of using executive powers (Article 8.8)

Member states
o All seconded staff shall remain under the full command of the national authorities
of the seconding State or EU institution concerned. National authorities shall
transfer Operational Control of their personnel, teams and units to the Civilian
Operation Commander. (Article 7.4 EUCJA)

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The UN Secretary General and the Security Council
o According to Ban Ki-moon’s letter, EULEX will act under an UNMIK
umbrella. It is not yet defined exactly how this will affect the chain of
command or accountability

PART 3: PRIVILEGES AND IMMUNITIES FROM INTERNAL

ACCOUNTABILITY

All employees of the ICO and EULEX, their families and international staff
appointed by the ICR, including premises and archives have diplomatic immunity
o Kosova shall accord the office of the ICR and the EUSR and its premises,
archives, and other property, as well as professional members of his or her staff
and their families, as well as those international professionals appointed by the
ICR the same privileges and immunities as are enjoyed under the Vienna
Convention on Diplomatic Relations. (Article 4.6 (a,b,c) Annex IX)
o The Vienna Convention on Diplomatic Relations states that diplomatic immunity
does not exclude officials from the jurisdiction of their sending states, or from
civil and administrative jurisdiction of Kosova’s courts, in specific cases relating
to property, succession and professional or commercial activity outside of the
official’s formal function. (Article 31)
o The Vienna Convention on Diplomatic Relations reserves the right of the Kosova
Government to ‘at any time and without having to explain its decision, notify the
sending State that the head of the mission or any member of the diplomatic staff
of the mission is ‘persona non grata’ or that any other member of the staff of the
mission is not acceptable. In any such case, the sending State shall, as appropriate,
either recall the person concerned or terminate his functions with the mission’. A
person may be declared ‘non grata’ or not acceptable before arriving in the
territory of the receiving State. (Article 9)
o For EULEX staff, it is specified that the State or EU institution having seconded a
member of staff shall be responsible for answering any claims linked to them. The
State or EU institution in question shall be responsible for bringing any action
against the seconded person. (Article 10.2, EULEX EUCJA) The Head of Mission
is responsible for disciplinary control over non-seconded staff (Article 8.6,
EULEX EUCJA)

There is no oversight within Kosova of the executive corrective powers of the ICR
o The ICR has the authority to establish a mechanism to allow the review of the use
of his powers; and those of the EUSR but on condition that this is without
prejudice to the privileges and immunities enjoyed by the ICR and EUSR under
this Settlement. (Article 2.6 Annex IX) This mechanism is not defined, nor has it
been established.

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 CHAIN OF COMMAND

UN Secretary General and UN Security Council

Resolution 1244

‘Reconfigured’ UNMIK
‘Status-neutral’

Individual States Javier Solana, International Steering

(Sending staff) EU Secretary General & High Representative Group

EUSR - ICR
International Civilian Office
Ahtisaari Settlement

EULEX ‘status-neutral’
Law and Security

Kosova Government and

Assembly
Constitution

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