EULEX in Kosovo
On 4 February 2008, the EU decided the deployment of EULEX in Kosovo to assist in developing independent multiethnic justice, police and customs institutions. EULEX was called to MMA Kosovo’s institutions “on all areas related to the wider rule of law” (Council of the European Union 2008, p. 93). It was tasked with contributing to the maintenance of the rule of law, public order, and security while ensuring that all activities of Kosovo’s institutions remain free from political interference and in line with international standards concerning gender equality and human rights (Council of the European Union 2008, p. 93). EULEX was also expected to support the fight against organized crime, corruption, and interethnic and other serious crimes. Interestingly, most EULEX tasks were preceded by the verb “ensure,” a word choice indicating that the mission was held directly responsible for making progress in reforms. Indeed, EULEX was vested with “certain executive responsibilities” to carry out its own operations where these seemed necessary, as well as the authority to annul or reverse operational decisions of the Kosovo institutions (Council of the European Union 2008, p. 93). Therefore, it received extensive powers and a quite ambitious mandate to improve the rule of law and restore police, judicial, and customs institutions in Kosovo.
The mandate of EULEX was not so straightforward. The mission’s deployment evolved into a daunting task in itself, despite the fact that an almost 3-year-long preparation phase preceded the adoption of the relevant Joint Action. EU leaders seemed to presume that the Ahtisaari plan previewing Kosovo’s “supervised independence” would be accepted by all parties, and has been preparing EULEX to assist the institution building of the rule of law sector until the end of international supervision (Papadimitriou and Petrov 2012, p. 756). Nevertheless, the deadlock in the Kosovo “final status” talks changed the context of the mission’s deployment. Russia was opposed to the Ahtisaari plan and claimed that the United Nations Security Council (UNSC) Resolution 1244 (that had placed Kosovo under UN administration in 1999) was still in force. Similarly, Russia also disapproved the replacement of the UN Mission in Kosovo (UNMIK) by EULEX owing to the fact that the latter was designated to contribute to Kosovo’s supervised independence.
At the EU level, the failure of the status talks divided the member-states over the question of Kosovo’s independence. While 22 EU members supported the recognition of Kosovo’s statehood and the implementation of the Ahtisaari plan, five EU countries (i.e., Cyprus, Greece, Romania, Slovakia, and Spain) kept reservations and abided by UNSC Resolution 1244 (Tzifakis 2013, pp. 45-46; Petrovic 2013, pp. 154-155). At the same time, the Kosovars and Serbs maintained their irreconcilable perspectives on the region’s status and nurtured different expectations from EULEX’s work.
EULEX, eventually, deployed in December 2008 and reached full operational capacity on 6 April 2009. Not only did it take an entire year for EULEX to assume its duties, it was also plagued by internal contradictions and tensions. In particular, the Russian opposition was circumvented by the UN Secretary General, Ban Ki-moon, who proposed making EULEX a constituent part of UNMIK (United Nations Security Council 2008, p. 5). As a result, EULEX has been set to operate within the “status-neutral” framework of UN policies in observance of UNSC Resolution 1244. This was indeed a convenient solution for EU members too, that did not wish to openly clash over the question of Kosovo’s statehood. The problem, however, is that although EULEX was designated as a “status neutral” mission, its job description has required of it to strengthen emblematic institutions of independent statehood. Its operations have been rightly depicted as “squaring the circle” (Richter 2009, p. 34). The mission has responded to the challenge by downplaying the rule of law as a manifestation of sovereignty and, instead, emphasizing the services it provided to people. In particular, it proclaimed that it intended to work on the field to improve the standards and the routine performance of police and justice institutions rather than adopt a “top-down” approach to those institutions’ restructuring (Richter 2009, p. 34). In this regard, it has tried to portray itself as a technical, apolitical mission. Yet, its work has increasingly implied decisions that presupposed a clear position on Kosovo’s status (e.g., the selection of body of law to be applied in justice). EULEX, indeed, proceeded very slowly and cautiously with the implementation of its program, prompting some analysts to qualify its work as an EU “face-saving exercise,” or a “continuation of UNMIK policy” (Gregor Mayer, quoted in Dzihic and Kramer 2009, p. 20; Richter 2009, p. 18). Furthermore, it adopted a defensive posture and dedicated much energy and work to render its policies compliant (at least at a discursive level) with the contradictory expectations of different domestic and international stakeholders. For instance, while EULEX remarked to the Kosovo Albanians that it advanced local ownership of rule of law institutions, it emphasized in its communications with the Kosovo Serbs that it worked to improve law and order for everyone living in the multiethnic society of Kosovo (Musliu and Geci 2014, pp. 72-75).
Although the EU renewed three times EULEX’s mandate during the researched period (in 2010, 2012, and 2014), it has refrained from revising the mission’s tasks (Council of the European Union 2010, p. 14, 2012, p. 46, 2014a, p. 42). The EU has, apparently, avoided running the risk of upsetting the delicate balance among recognizers and nonrecognizers of Kosovo independence that permitted the mission’s deployment. However, in practice, much innovative thinking has been employed to adjust EULEX’s operations to changing conditions on the ground, especially following the end of Kosovo’s supervised independence in September 2012. For instance, in 2014, the EU diminished the scope of the jurisdiction and competences of EULEX judges and prosecutors (with respect to the exercise of executive functions on new cases) in order to secure the approval of Kosovo institutions to the extension of the mission’s deployment until June 2016. These changes were, nevertheless, written down merely in a national law adopted by the Kosovo Parliament (Assembly of the Republic of Kosovo 2014a). Whereas the Kosovo authorities claimed that the renewal of EULEX mandate in 2014 resulted from an international agreement with the EU (Assembly of the Republic of Kosovo 2014b), the latter cautiously confined itself to just an exchange of letters between Atifete Jahjaga, Kosovo’s President and Catherine Ashton, EU High Representative for Foreign Affairs and Security Policy (see Annex I in Assembly of the Republic of Kosovo 2014b).
The capabilities that the EU and its members dispose in a CSDP mission can be indicative of the extent of their commitment to improve conditions on the ground. This is especially true when a great discrepancy exists between pledges of resources at the time of a mission’s launch and actual allocations at the operational phase.
To begin with economic resources, EULEX has received all these years more than €890 million from the EU budget (Council of the European Union 2014a, p. 43, 2014b, p. 52, 2015, p. 21). Its annual budget from
June 2015 to 2016 was set to €77 million (Council of the European Union 2015, p. 21). To this amount should also be added the payments made by the contributing EU members for the salaries of their seconded staff. This is a substantial expense, whose exact size is not known to the EU itself. Overall, EULEX has been the most expensive EU civilian mission so far, and this fact could be taken to constitute a proof of the Union’s commitment to the improve rule of law in Kosovo.
With respect to its personnel, EULEX has brought together police officers, judges, prosecutors, and custom officers from EU and non-EU countries and Kosovo itself. Its staff was originally planned to consist of around 3200 people (1950 internationals and 1250 locals). However, it has never reached to its full strength. According to the European Court of Auditors (2012, p. 37), in the years 2010-2011 EULEX operated at approximately 75% of its authorized strength. In the justice sector, for instance, where there was a great need of assistance and a backlog of more than 210,000 cases, the secondments were short of the authorized strength by 40% (KIPRED 2013, p. 12). EU members have seconded fewer staff than what they had pledged, with their pledges being already fewer than what the EU had initially authorized. Although some progress has been made on that count and despite the fact that the EU pragmatically decided in 2012 to downsize the mission by 25% to 2250 people, David Lidington, UK Minister for Europe, disclosed in 2013 before the European Union Sub-Committee of the House of Lords, that “there are frankly still too many unoccupied positions” (House of Lords 2013, p. 11).
Another constraint in EULEX human resources is the high turnover of its international staff. Most secondments have been for a year. This timeframe is insufficient for officers to get acquainted with the Kosovo field of operations and contribute to the management of complicated issues such as the investigation of cases of organized crime and corruption (KIPRED 2013, p. 13). The occurrence on many occasions of delays in finding people to replace outgoing staff members has implied that posts have frequently remained vacant for some time and, when these posts were filled, incoming staff members did not receive their dossiers directly from their predecessors (Jacque 2015, p. 18). The EULEX’s high turnover of personnel has also undermined the transfer of expertise to local authorities and, by extension, the efficient implementation of the mission’s overall MMA work (European Court of Auditors 2012, p. 38). More worryingly, the quality of human resources seconded in Kosovo has been rather poor.
EU members have usually paid little attention to properly screening candidates for the mission’s positions and have not provided them with sufficient training (European Court of Auditors 2012, pp. 38-39; Jacque 2015, p. 17). They have also offered little incentives to their qualified people to apply and, thus, their seconded staff has featured many trainees and young professionals who lacked the necessary experience and knowledge to MMA the local officers, let alone to investigate complex cases of serious crimes or award justice (KIPRED 2013, p. 13; Jacque 2015, p. 18). Not accidentally, 11 contributing EU countries were alleged to have dispatched unqualified staff to work with the mission (European Court of Auditors 2012, p. 38). On the whole, the mission’s deficiency in sufficient and adequately qualified staff has compromised its effort to improve rule of law in Kosovo.
Last, but not least, the mission has not managed to foster among its members a “sense of belonging” with many of its staff members operating along national contingents, or even worse, individually. In the words, of Jean-Paul Jacque (2015, p. 19), the expert who was appointed by Brussels to evaluate the mission’s mandate implementation, “it appears that there is no real team of prosecutors, or prosecution service (what the French would call a ‘parquet’), but merely a collection of individuals.” Having briefly analyzed the mission’s mandate and resources, the next section assesses its track record.
EULEX has tangibly assisted to the strengthening of Kosovo’s rule of law sector institutional capacity. With the guidance of the EU mission, the Kosovo authorities have adopted more than 110 laws, administrative instructions, and regulations (EULEX 2015, p. 2). The Kosovo Police has been reorganized and its patrol management and crime persecution capabilities have been enhanced (EULEX 2011, pp. 9, 18-19; Joint Rule of Law Coordination Board 2013, p. 7, 2014, p. 8). The Kosovo Police has also achieved “ethnic balance” in its human resources with 16.10 % of posts being filled by people coming from nonmajority communities (Joint Rule of Law Coordination Board 2015, p. 11). Moreover, it has taken over, along with other relevant Kosovo institutions, the management and control of the borders with Albania, Montenegro and the Former Yugoslav Republic of Macedonia and it has carried out joint border patrols with the police authorities of these countries (European Commission 2015b, p. 57).
The Kosovo Customs has been restructured and it has adopted a new system for the recruitment, appraisal, and career progression of its officers (Joint Rule of Law Coordination Board 2015, p. 14). In addition, it has adopted a Customs Code in accordance with European standards (EULEX 2011, pp. 52-54). The Kosovo rule of law institutions have also introduced integrated management practices in the country’s borders and, thus, the Kosovo Customs Office has been collecting more than 70% of the country’s revenues (Joint Rule of Law Coordination Board 2015, p. 14).
In the justice sector, EULEX has assisted the Kosovo institutions to adopt several much needed pieces of legislation, such as the Law on Courts, the Law on the Kosovo Judicial Council, the Law on the State Prosecutor, and the Law on the Kosovo Prosecutorial Council (Joint Rule of Law Coordination Board 2015, p. 22). The Kosovo judges and prosecutors have been scrutinized, rated, and reappointed while 60% of related posts were filled by new applicants (EULEX 2011, pp. 33-34). The security of the Kosovo Correctional Service facilities has been upgraded, and its staff has been trained on best practices (EULEX 2011, pp. 47-48). Furthermore, the Kosovo Correction Service has adopted new rules aiming at the diminution of nepotism and contraband in its facilities (Joint Rule of Law Coordination Board 2015, p. 19). EULEX has also extensively exercised its executive powers and has contributed to the adjudication of 42,000 conflict-related property cases in the Kosovo Property Claims Commission (KPCC); several hundreds of appeals (to KPCC decisions) in the Appeals Panel of the Supreme Court for Kosovo Property Agency; and more than 10,000 cases in the Special Chamber of the Supreme Court of Kosovo (Joint Rule of Law Coordination Board 2015, p. 26; EULEX 2015, p. 1). More importantly, EULEX prosecutors have also handled hundreds of cases of serious crimes and EULEX judges have in a few cases reached verdicts against high-profile officials such as politicians, judges, and prosecutors (EULEX 2015, p. 1).
However, on a more negative note, the Kosovo rule of law institutions have not developed the capabilities to address on their own complex issues such as outbreaks of serious disorder and investigations of serious crimes (Rozee 2015, p. 108; Jacque 2015, p. 22). As the European Commission (2015b, pp. 15, 18) diplomatically put it, the Kosovo institutions are “at an early stage of preparations” in the struggle against corruption and organized crime. Having said that it is not implied that Kosovo has not taken any institutional steps in the right direction (Weber and West 2014, p. 17). Rather that instruments have not been exploited and policies have not been genuinely executed. For instance, although the Kosovo Police has signed an agreement on the electronic exchange of information with the Financial Intelligence Unit (FIU) of the Ministry of Economics, cooperation between the FIU, the police, and prosecution has been insufficient (Joint Rule of Law Coordination Board 2014, p. 12; European Commission 2015b, p. 58). Likewise, notwithstanding that the country’s rule of law institutions have jointly established a National Coordinator on Economic Crime, they have failed to act upon the latter’s recommendations (Joint Rule of Law Coordination Board 2015, p. 25). For instance, the Kosovo authorities have not yet adopted an “anti-Mafia law” that would enable the confiscation of illegally acquired property pending trial (Gazetta Express 2015). In a similar manner, cooperation among the Police Inspectorate and prosecution has been poor. The two institutions have not harmonized their data systems and they have not elaborated their action plans sufficiently enough to determine common objectives (Joint Rule of Law Coordination Board 2015, p. 13). What is more, the police has been accusing the Prosecutor’s Office of adopting an noncooperative position when it comes to the investigation of serious crimes such as corruption (Avdiu and Perteshi 2015, p. 12). As a result, in cases of organized crime and corruption (especially when high-profile officials are involved), very few investigations have been launched; convictions have been rarely decided; and confiscations of assets have been almost never executed (European Commission 2015b, pp. 15-18, 58-60; Joint Rule of Law Coordination Board 2015, pp. 13, 24).
The deficiency of the country’s rule of law institutions in the field of serious crime (i.e., war crimes, organized crime, and corruption) is mainly owed to the lack of political will of the country’s authorities. The latter have understaffed rule of law institutions, leaving unfilled key posts for those institutions’ operation (Weber and West 2014, p. 17). In addition, the Kosovo authorities have not consistently implemented necessary reforms and have even facilitated the prevalence of impunity. To illustrate, the Kosovo government used the opportunity in mid-2013 of the adoption of EU-suggested amnesty law for crimes of Serbs in North Kosovo (a necessary step for the integration of North Kosovo in the country) in order to give amnesty for several types of crimes committed throughout the entire territory of Kosovo. In this way, several members of the ruling party who were under investigation were cleared of charges (Weber 2015, p. 6). In addition, the Kosovo Police has remained at all times under the control of the political party in power (Weber 2015, p. 17). Similarly, concerns have been raised about the judiciary’s impartiality; its vulnerability to threats, intimidation, and political interference; its weak management of cases and data; and the transparency of allocation of cases to judges and prosecutors (European Commission 2015b, pp. 12-16; European Court of Auditors 2012, p. 22). The overall backlog of unresolved cases has been growing from 218,000 at the end of 2012 to 400,000 in July 2015 (European Commission 2013b, p. 11, 2015b, p. 35). What is more, the actual law implementation has been problematic as most court rulings were hardly enforced (European Court of Auditors
2012, p. 22).
To be sure, EULEX too, bears some responsibility for the policy failure in the fight against serious crime. In terms of exercising their executive powers, EULEX prosecutors and judges have been recurrently accused of handling serious cases with incompetence and for having avoided for some time lodging investigations or prosecutions against high-profile officials (Capussela 2011). The most emblematic case of EULEX negligence has been the mismanagement of a corruption allegation inside the mission’s ranks. While Maria Bamieh, an EULEX prosecutor, gave evidence to her superiors in June 2012 concerning a bribery case involving EULEX officials, the mission’s leadership did not take seriously her allegations and delayed for a year to launch an internal investigation. As a result, when Bamieh was suspended from the mission in 2014, she went public and asserted that she had been punished for her revelations (Jacque 2015). Notwithstanding that the EU has initiated criminal and administrative proceedings to investigate these allegations, the mission’s credibility has been seriously impaired.
More worryingly, following the EU-Kosovo deal of April 2014 concerning the revision of the mission’s mandate, EULEX prosecutors and judges have been stripped of the authority of taking on new cases. Considering the weakness of the country’s rule of law institutions, an EULEX officer argued with disappointment: “no high-profile persons will ever be prosecuted again. [... ] All the senior guys can now feel safe” (quoted in Weber 2015, p. 8). Indeed, to demonstrate that the EU itself has not vested with trust the country’s rule of law institutions, suffice it to mention the European stance concerning the investigation of the crimes conducted during the Kosovo war. Notwithstanding that the Kosovo Police Witness Protection Directorate has been declared operational (Joint Rule of Law Coordination Board 2015, p. 17), the EU has insisted on the establishment of a Specialist Chambers and a Specialist Prosecution’s Office for the war crimes that would operate outside the territory of Kosovo (i.e., in Hague) and would be solely staffed with international staff.
The limited progress in the struggle against serious crime has additionally highlighted some of the failures of EULEX to transfer adequate expertise to the local institutions. To illustrate, an EULEX action on “intelligence-led policing” had limited impact owing to the fact that the EU mission had not earlier secured that a sufficient number of Kosovo officers would participate (Weber and West 2014, p. 17). More importantly, the lack of results in the efforts of EULEX to raise the capacities of the Kosovo rule of law institutions has manifested the limited reach of the mission’s MMA activities. Deprived of any instruments of conditionality, EULEX MMA activities have inevitably depended on the willingness of the Kosovo political authorities to improve rule of law in their country (Radin 2014, p. 188). However, as earlier explained, the Kosovo authorities have been reluctant to combat serious crime, apparently, owing to the fact that, according to various reports, many leading figures in the country have been themselves involved in organized crime groups (see inter alia Sudetic 2015; McAllester 2011; Marty 2010, p. 14).
Another area where EULEX-inspired rule of law reforms have had limited impact is in North Kosovo, where Serbs have opposed any attempt to shore up Kosovo’s institutions, maintaining their own parallel rule of law structures. The Kosovo Police has been operational in the region, but it has not secured the trust of the local population, even though most of its officers were Serbs (International Crisis Group 2011, p. 16). In the justice sector, Kosovo judges and prosecutors have not been allowed to work in North Kosovo; and thereby, they have been replaced by EULEX judges who, however, have pragmatically focused on criminal cases, neglecting civil suits. Lastly, EULEX and Kosovo Customs could monitor the traffic, but not collect duties in the two checkpoints in North Kosovo.
In this context, it has been the EU-facilitated dialogue between Belgrade and Pristina (having as milestone the “Brussels agreement” of April 2013) that has provided the ground for some timid progress toward the establishment of Kosovo rule of law institutions in the region. In particular, EULEX has provided technical support for the integration until mid-2015 of 288 police officers, 105 civil protection officers, and 26
customs officers of Serb ethnicity into the corresponding rule of law structures of Kosovo (Joint Rule of Law Coordination Board 2014, p. 23, 2015, pp. 15, 29; European Commission 2015b, p. 29). Moreover, with the assistance of EULEX, the Kosovo Police has established in North Kosovo a Quick Response Team, a Crowd and Riot Control unit, and a special multiethnic unit for the protection of religious and cultural heritage sites (EULEX 2015, pp. 1-2; Joint Rule of Law Coordination Board 2015, pp. 14, 29). EULEX has also assisted the Kosovo Customs to introduce full controls and collect levies in the northern borders with Serbia and it has facilitated the implementation of the freedom of movement agreement between Kosovo and Serbia (EULEX 2015, p. 2; Joint Rule of Law Coordination Board 2014, p. 27, 2015, p. 29). Finally, in the justice sector, the Kosovo institutions have integrated 65 Kosovo Serb judges and prosecutors (International Commission of Jurists 2016, p. 12).
Nevertheless, the Kosovo Serbs have not abolished their parallel structures and crucial aspects of the operation in North Kosovo of the country’s rule of law institutions have not been ironed out (Schwartz 2016; International Commission of Jurists 2016, pp. 19-22). In addition, fear and insecurity among people living on both sides of the divide has not diminished (ECMI Kosovo 2015, p. 2). More worryingly, the dysfunction (not to say absence) of rule of law institutions in North Kosovo has all these years contributed to the emergence of an environment of general impunity and lawlessness, with serious crime taking gigantic proportions much alike in the rest of Kosovo (Prelec and Rashiti 2015, p. 6). Therefore, even though the improvement of interethnic relations in Kosovo is beyond EULEX’s mandate, we can safely conclude that the mission’s work has had limited results in the country. Having analyzed the track record ofEULEX in Kosovo, the next section turns to EUPM and its work for the improvement of rule of law in BiH.