EULEX: UN PRIVILEGES AND IMMUNITIES UNRESOLVED; EU

C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 001324

NOFORN
SIPDIS

EUR/ERA, EUR/SCE, INL, L/EUR

E.O. 12958: DECL: 08/27/1018
TAGS: PREL EUN KV UNMIK
SUBJECT: EULEX: UN PRIVILEGES AND IMMUNITIES UNRESOLVED; EU
FARES BETTER WITH GOVERNMENT OF KOSOVO

REF: USEU BRUSSELS 548

Classified By: CDA Christopher W. Murray for reasons 1.4 (b) and (d).


1. (C) Summary: The EU's negotiations with the UN over
privileges and immunities (Ps and Is) for EULEX personnel
remain stalled. The EU has, however, secured the Government
of Kosovo's agreement to extend Ps and Is to the mission.
EULEX planners, while admitting that deployment under only
Government of Kosovo-issued Ps and Is is not ideal, are
prepared to move forward on this basis and have received some
positive indications that most EU member states would be
willing to do so as well. EULEX officials are not optimistic
that internal EU institutional objections to the UN's
conditions for issuing Ps and Is can be overcome, and they
argue that if contributors were to insist on UN Ps and Is for
the mission, deployment could be further delayed by weeks.
The EU has strongly urged that, if the U.S. agrees that
Government of Kosovo (GoK)-issued authorities are sufficient,
we work to quickly sign the Participation Agreement for the
mission, a move which would send an important political
signal and provide further leverage to encourage rapid
deployment by other contributors. End Summary.


2. (C) In a meeting with USEU PolOffs August 26, EU
Civilian Planning and Conduct Capability (CPCC) officials
responsible for the EULEX Kosovo mission said that the EU's
discussions with the UN concerning privileges and immunities
for EULEX personnel remain deadlocked over the UN's
insistence that the UN retain the sole authority to waive
immunities. Citing the potential for an undesirable
precedent that would extend well beyond the specifics of the
EULEX mission, and pointing to different, more favorable UN
arrangements with NATO/KFOR and the former EU Planning Team
in Kosovo, EU Council and legal officials and some member
states argue that at a minimum, the EULEX Head of Mission or
contributing state should have the right to consult with the
UN in a waiver decision. Although admitting the scenario was
unlikely, CPCC officials also cited as a concern the
potential for negative Russian pressure tactics if the UN
retained sole authority to waive Ps and Is for EU personnel.


3. (C) As a result of a parallel discussion with the Kosovo
government, the EU has received a letter from President
Sejdiu granting full privileges and immunities to EULEX
personnel. The letter mentions UN Security Council
Resolution 1244 in an attempt to help the EU secure the
participation of member states who have not yet recognized
Kosovo. Our CPCC contacts are in the process of canvassing
EU member and third states on the acceptability of the letter
from Sejdiu and have so far received generally positive
indications that most could accept this as the basis for
mission Ps/Is. According to the EU officials, Spain, which
is not planning to participate in the mission, and Cyprus,
which has discussed only a very small contribution, are so
far the exceptions.


4. (C) Recalling previous U.S.-EU conversations where the
U.S. side indicated willingness to accept sufficiently robust
Ps and Is from either the GoK or the UN, CPCC contacts noted
that if the U.S. or other contributors insisted on a UN
assurance of privileges and immunities before allowing
personnel to deploy, the EULEX deployment process could be
further delayed by weeks while they tried to reach agreement
with the UN. If the United States was, in fact, prepared to
go forward with the original, general Participation Agreement
(PA) language on Ps and Is (reftel) with a reference to the
agreement between EU and GoK, the EU anticipates that
deployment timetables would be unaffected. They assessed
that, pending member state agreement of the full text, the EU
would be in a position to sign the PA as soon as the end of
September. CPCC officials added that the EU still plans to
re-engage with the UN on the Ps and Is question later in
September, and will look forward to any potential for
flexibility in the UN position as a result of upcoming
changes in the UN's office of Legal Affairs as well as the
Department of Peacekeeping Operations.


5. (C) Turning to broader EU-UN Relations, CPCC contacts
report that the EU-UN technical agreement signing on August
18 has improved coordination on the ground and boosted morale

BRUSSELS 00001324 002 OF 002


among EULEX personnel. The EU also assesses that the EU's
resumed deployment has put additional pressure on UNMIK to
quickly and fully implement its reconfiguration process.
Interlocutors note that the transfer of buildings and
accommodation is underway, and the transfer of assets and
equipment should begin soon. EU officials are still in
discussions with the UN regarding the specific definition of
the "UN umbrella" as well as the details of UNMIK's
reconfigured presence, particularly in the North. UNMIK has
committed itself to keep police and rule-of-law officials on
the ground until EULEX is ready to assume authority in late
November. The two sides have not yet agreed a specific date
for the transfer.


6. (C//NF) Comment: While current thinking in Brussels
among many EU and some member state officials is that "bad
privileges and immunities are better than no privileges and
immunities," they are aware that deploying under GoK
authorities is not ideal. Our CPCC interlocutors are
particularly concerned that turning over waiver authority to
the UN would have implications for future UN-EU relations, as
well as for the autonomy of the EULEX mission. Nonetheless,
some progress has been made in securing agreement from
non-recognizing member states to deploy under the GoK
authorities, and CPCC officials assess that building on this
progress and proceeding along the GoK Ps and Is track is the
most realistic way of getting EULEX fully deployed and
functional by late-November. CPCC officials are looking to
the United States to soon sign the participation agreement to
help set an example and leverage CPCC's internal progress
with member states. Signing the PA, with relevant text
detailing provisions for U.S. EULEX personnel to be covered
by GoK Ps and Is, could help move member states who would
otherwise prefer to wait for the resolution of UN Ps and Is
before deploying, and would remove another potential excuse
for further delays in the EULEX deployment process. End
Comment.


MURRAY
.