By: Drini Grazhdani
Introduction
International development efforts to build functional rule of law systems around the world are often faced with two impediments: reforming old deep-rooted systems, and changing the mindset and behaviors of the people who work within those systems. However, the case of Kosovo was somewhat different. In 1999, when the United Nations established its peacekeeping mission in Kosovo, the country had neither a rule of law system, nor people working within it—including judges, prosecutors, and police. Because Kosovo’s legal system was essentially a “tabula rasa,” or blank slate, rule of law development in Kosovo had a chance to succeed. Moreover, over the past 19 years, the international community has exercised decision-making power at all levels of the rule of law system in Kosovo, which is unique amongst its rule of law efforts. First the UN Mission in Kosovo (“UNMIK”), and now the European Union Rule of Law Mission in Kosovo (“EULEX”), have deployed international police, investigators, prosecutors, and judges to ensure that Kosovo fights corruption, as well as organized and interethnic crime. The mandate of EULEX is coming to an end in 2020. How successful has EULEX been? What lessons can be learned for the future deployment of similar missions? Finally, how will this legacy affect the development of international law?
Kosovo under UNMIK
In June 1999, the UN Security Council adopted Resolution 1244, which authorized an international civilian and military presence in Kosovo by establishing UNMIK. The Special Representative of the Secretary-General (“SRSG”) represented UNMIK. Resolution 1244 directed UNMIK to demilitarize Kosovo, ensure the return of refugees and displaced persons, create democratic institutions, organize free and fair elections, and prepare Kosovo for its final political status — which at the time was envisioned as either statehood or some other form of autonomy. Regarding the establishment of a rule of law system, the resolution focused on “maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo.”
By 2003, UNMIK had deployed 4,389 international police officers, and it had recruited and trained 5,247 Kosovo police officers. According to a United States Institute of Peace (“USIP”) Special Report, UNMIK “established a program of international judges and prosecutors (“IJP”) that was the first of its kind in the world.” Following the example of Kosovo, IJP were “also appointed in East Timor, and later to the Special Court of Sierra Leone and the Special Panel of the State Court of Bosnia and Herzegovina.”
However, while IJP subject matter jurisdiction in these countries was usually limited by law to prosecuting war crimes, IJP in Kosovo had full jurisdiction. As the USIP report noted, the IJP in Kosovo had jurisdiction over “new cases and cases already assigned to Kosovan jurists.” Nevertheless, UNMIK’s efforts to establish a functioning rule of law system immediately encountered serious problems, such as: (1) the question of what should be the applicable law in Kosovo; (2) a lack of judicial infrastructure and personnel; and (3) the inability of UNMIK to deal with war crimes.
As one article argued, UNMIK’s “failure to establish a responsive and efficient judicial system as part of the transitional administration in Kosovo eroded local support for UNMIK and the international community at a time when it was most needed.” For the next five years, political developments stagnated in Kosovo. UNMIK lacked a clear exit strategy, which contributed to increased interethnic tensions and a lack of public support for the UN mission. The March 2004 surge in attacks on minorities revealed that UNMIK and the North Atlantic Treaty Organization (“NATO”) peacekeeping force had, to some extent, failed to provide security in the north of Kosovo.
The Ahtisaari Plan and Kosovo’s Declaration of Independence
The violent unrest in March 2004 made clear that the final political status of Kosovo must be determined in order to maintain peace in the Balkans. In 2005, the United Nations appointed Kai Eide, a Norwegian diplomat, as a Special Envoy to undertake a comprehensive review of Kosovo. Following the recommendations of Kai Eide, the UN Secretary-General appointed Martti Ahtisaari as the Special Envoy for the Future Status Process for Kosovo. Prishtina and Belgrade were expected to negotiate the final status of Kosovo However, Serbia did not want to be part of any agreement that guaranteed Kosovo’s independence. Following the stalemate of the negotiations, Martti Ahtisaari continued his work and drafted the Comprehensive Proposal for the Kosovo Status Settlement (“CSP”), informally called the “Ahtisaari Plan.”
The Ahtisaari Plan outlined the process of transitioning Kosovo to an independent country, as well the structures of the main institutions in Kosovo, with a focus on creating a constitutional and legal framework where ethnic minorities living in Kosovo would have their rights protected. While Prishtina accepted the plan, Belgrade strongly refused it. Russia’s political opposition to the Ahtisaari Plan, and any other plan that included the option of an independent Kosovo, made it clear to the international community that efforts to endorse the Ahtisaari plan at the UN Security Council would have been futile. Russia’s position was a function of the historical, cultural, and religious ties that Russia has with Serbia, as well as Russia’s ambition to become a political leader in the Balkan region. These failed attempts to reach an agreement pushed Kosovo, with the support of its American and EU partners, to start the process of declaring its independence. In this declaration, the Ahtisaari Plan served as the basis of Kosovo’s constitutional, legal, and political framework. The Parliament of Kosovo declared Kosovo’s independence on February 17, 2008. The UN Security Council could not reach an agreement on the Ahtisaari plan’s proposal for supervised independence in Kosovo. Because of this stalemate, UNMIK adopted a position of neutrality and re-configured its presence in Kosovo.
The Establishment of EULEX
Days before Kosovo’s declaration of independence from Serbia in 2008, as part of its assistance
to ensure a professional and independent rule of law, the EU deployed a new mission in Kosovo: EULEX. EULEX is the largest Common Security and Defense Policy (“CSDP”) mission to date, and the first of its kind outside the EU. With the largest budget of any EU mission, EULEX had adequate resources to succeed. Given Kosovo’s newly built institutions were at that time unreliable, both at handling sensitive criminal cases and at operating free from political influence, Article 12 of the Ahtisaari Plan foresaw the EU mission as the best solution for helping the newly independent country strengthen its rule of law.
The need to strengthen Kosovo’s justice system was crucial after it declared independence. The provisional institutions of Kosovo and UNMIK were not able to solve crimes committed during and after the war. In addition, they did not have the stamina to tackle high profile corruption cases. This is where EULEX was supposed to come in. Nevertheless, in the past ten years, EULEX has failed to achieve its goals and objectives. This failure has had significant consequences for Kosovo. Corruption is pervasive, and voters have lost hope that high-level politicians can be prosecuted either by EULEX or by the local authorities. Because of this, Kosovo is lagging behind in the European integration process and is the only country in the region which is denied the Schengen visa liberalization regime. One of the main conditions for visa liberalization that the EU imposed on Kosovo is a reduction in organized crime and corruption.
The Failures of EULEX
The following list describes the main areas where EULEX has failed in the past ten years:
1.1. Inability to garner public support
According to a survey conducted by the Kosovo Center for Security Studies in 2012 and 2015, the approval rates for EULEX have been dropping each year. In 2015, 54 percent of the respondents stated that they did not trust EULEX. In addition, EULEX is listed below Kosovo’s domestic prosecution system and courts when it comes to citizens’ perceptions and their faith in these judicial institutions. According to this study, Kosovars did not believe that EULEX could combat corruption in Kosovo.
1.2. Inadequate and insufficient staffing
Staffing has been one of EULEX’s biggest problems. The mission largely relied on seconded staff, representing 80 percent of the entire mission. The seconded staff came from both EU and non-EU States. The EU States seconded their staff for short periods with inflexible contracts. For the seconded judges, this meant that they did not have sufficient time to investigate organized crime and other cases of criminal justice. According to the Kosovar Institute for Policy Research and Development, which published a comprehensive analysis of EULEX, some of the seconded staff did not meet the professional requirements of the positions filled. These personnel issues compromised the ability of EULEX to fulfill its mission.
1.3. Failure in northern Kosovo
According to the European Court of Auditors, EU interventions in the north of Kosovo “have been very limited and there has been almost no progress in establishing the rule of law.” These issues stemmed from EULEX’s inability to move freely throughout the northern municipalities. In 2011-12, local Kosovo Serbs in the north, influenced by the Serbian Government, raised barricades in order to disrupt the movement of people and goods throughout northern Kosovo. As a result, EULEX was not able to ensure the enforcement of the rule of law, leaving the population of that area free to violate numerous laws, including smuggling and interethnic crime.
Despite EULEX’s failure to enforce the rule of law in this region, it is worth mentioning that EULEX successfully facilitated the integration of the Kosovo Serb police forces into the Kosovo police and the integration of the judiciary of northern Kosovo into Kosovo’s national judiciary. This integration of the police and the judiciary was made possible by the first agreement of principles governing the normalization of relations between Kosovo and Serbia in 2013.
1.4. Corruption scandals that damaged public image beyond repair
The allegations that EULEX was involved in corrupt activities in Kosovo became public in 2014. The British Prosecutor who was serving with EULEX, Maria Bamieh, publicly announced that she was forced from her job as a prosecutor after she claimed that she “found evidence senior staff had taken bribes and were colluding with murderers.” EULEX denied these claims, stating that Prosecutor Bamieh was fired because she revealed secret information to the Kosovo daily newspaper, Koha Ditore. The European Commission reacted to these allegations by appointing an independent legal expert to investigate. This expert found no issue with the way EULEX treated Bamieh and concluded that the allegations were unfounded. In November 2017, Chief Judge Malcolm Simmons resigned from EULEX. He accused the mission of corruption and the British Foreign Office and the EU for not taking action against such corruption. EULEX responded by stating that Chief Judge Malcolm Simmons himself was the subject of an investigation for corruption. These allegations were widely reported in the Kosovo press and gravely eroded the image and the credibility of EULEX.
UN Peacekeeping Missions, EULEX, and the Future of International Rule of Law Deployments
The purpose of UN peacekeeping missions is broader than the development of the rule of law. Currently, there are 14 UN peacekeeping missions around the world. These missions also focus on, among other things, civilian protection, conflict prevention, promoting human rights, empowering women, and delivering field support.
However, EULEX’s main objective was to establish and strengthen the rule of law in Kosovo. Unlike other UN missions, which focus on building the capacities of rule of law institutions, EULEX had full jurisdiction and responsibility for restoring rule of law. Moreover, EULEX did not have to start from scratch, as it inherited a system and staff from UNMIK’s rule of law department. For these reasons, many anticipated that EULEX would succeed. Some commentators expected Kosovo’s rule of law institutions to meet EU standards within a decade.
The European External Action Service, an organization which helps the EU’s foreign affairs chief carry out the Union’s Common Foreign and Security Policy, has deployed other rule of law missions around the world. However, these missions are non-executive. This makes Kosovo the only country where the most prominent international rule of law organizations have deployed missions that possess judicial and governing authority. Despite the narrow focus of both the United Nations and the EU on Kosovo’s rule of law system, the results achieved by these organizations have fallen short.
The failure of EULEX calls into question the capabilities of every current and future international rule of law mission which falls under the competences of the UN Security Council and the EEAS. The next country which may require a similar mission is Syria. The first indictments for war crimes in the Syria war are already taking place. However, international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, function outside the country and do not have the same framework and mechanisms as a deployed rule of law mission. Opposition from the Assad government will also likely hinder the ability to establish such a mission within Syria.
Nevertheless, future missions in Syria and elsewhere should be built on the lessons learned from Kosovo, reflecting objectively on what worked and what did not. While UNMIK and EULEX were considered unbiased and thus seemingly had an advantage working on issues that involved interethnic conflicts, the lack of accountability mechanisms and corruption inhibited these missions from realizing their goals.
Conclusion
On June 8, 2018, the Council of the EU extended EULEX’s mandate until June 2020. This decision ended EULEX’s executive powers over the Kosovo judiciary. With this new mandate, EULEX will monitor selected cases and trials. The main reason for the extension of EULEX’s mandate is related to the work of the Kosovo Specialist Chambers (“KSC”) and Specialist Prosecutor’s Office (“SPO”). The KSC, established in 2015, is a Kosovo court which is based in The Hague and will deal with the allegations that Dick Marty, a former member of the Parliamentary Assembly of the Council of Europe, raised. In a report, Dick Marty highlighted “that serious crimes had been committed during the conflict in Kosovo, including trafficking in human organs.” Article 28 of Kosovo Law No.05/L-053 on KSC and SPO also gives the head of EULEX the competence to appoint judges. While the indictments that the SPO brought against the former members of the Kosovo Liberation Army are still pending, the success of this office remains uncertain.
For Kosovo’s rule of law system to improve, it was essential for EULEX to succeed in its initial 10-year mandate. EULEX, and previously UNMIK, exercised executive power over the judiciary of Kosovo. This marked a new phase in international law. However, despite this development, Kosovo’s rule of law system is the weakest link in the institution-building process. EULEX’s shortcomings need to be analyzed objectively to guide the planning of future missions in post-conflict societies. In the wake of EULEX, future international rule of law missions need to focus on (1) appointing judges and prosecutors that have high integrity and experience, (2) establishing a high security clearance system for individuals appointed to work within the mission, and (3) establishing an efficient accountability mechanism for the mission’s staff before the missions deploy.
Drini Grazhdani works as a Legal Specialist for Millennium DPI Partners L.L.C. in the USAID-funded Justice System Strengthening Program in Kosovo. In addition, he taught courses on international business law, criminal law, and introduction to law at private colleges in Prishtina. Drini Grazhdani holds an advanced LL.M. degree in International Civil and Commercial Law from Leiden Law School.
