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Abstract
Following Kosovo's declaration of independence in February 2008, the European Union deployed a rule of law mission in Kosovo (EULEX). While EULEX and its supporters have argued that the mission has the potential to succeed, critics claim that the mission has failed to significantly improve Kosovo's rule of law institutions, to address the rule of law vacuum in the north of Kosovo, and to prosecute high-level organized crime and corruption. I argue that the critics are correct, and explain that the mission is fundamentally flawed due to its neutrality about Kosovo's independence, its rejection of conditionality and capacity building, and its difficulty investigating politicized crimes. Consequently, the mission cannot overcome the inherent challenges of building the rule of law in Kosovo, namely the desire of the Kosovo Albanian majority for independence and the connection between politics and criminality. The paper concludes that EULEX should not be renewed, since the mission's main functions could be better fulfilled by other international organizations, namely the NATO-led Kosovo Force and the European Union Office.
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Notes
1 The non-recognizing EU member states were Spain, Romania, Slovakia, Greece, and Cyprus (Economides, Ker-Lindsay, and Papadimitriou Citation2010, 99).
2 These issues included (i) the police and (ii) courts in the north of Kosovo, (iii) customs, (iv) transportation and infrastructure, (v) boundaries, and (vi) Serbian patrimony (UN Citation2008).
3 For example, the European Commission Feasibility Study in October 2012 (8) stated that Kosovo needed to offer “concrete evidence of results in fighting organised crime … [and] in its fight against corruption.”
4 One report by the Pristina-based Balkan Policy Institute (Citation2011, 15–16) explains, “EULEX public appearances with promises to arrest the so-called [sic] ‘big fish’ has caused citizens to believe in the work of EULEX into Kosovo.” However, this public confidence in the mission soon declined due to a “failure to punish people involved in high level corruption”.
5 For example, in response to criticisms in the ECA (Citation2012, 55) report, the Commission and the EEAS noted that EULEX operations in the north were hampered by “the lack of freedom of operations since July 2011 and, more generally, by the impossibility of imposing policing and the rule of law upon the local population.” From this perspective, given the potential for protest by the Kosovo Serbs, EULEX could do little to deploy in the north.
6 Separately, Limaj had been twice tried and acquitted for war crimes by the International Criminal Tribunal for the former Yugoslavia in cases where there were allegations of threats and murder of key witnesses. A key witness in the war crimes trial, Agim Zogaj, was found dead of an apparent suicide in Germany in September 2011 (The New Yorker, 6 May 2013).
7 The Marty report did offer limited hard evidence, and one key witness in the wartime organ smuggling case appeared to be a Serbian plant (The New Yorker, 6 May 2013).
8 Although EULEX was initially structured based on the three major institutions it sought to assist – the police, judiciary, and customs – EULEX (Citation2012a) was restructured in June 2012 into “strengthening” and “executive” divisions that more closely corresponded to its major activities.
9 In March 2009, for example, the EULEX (Citation2009b) website explained, “The aim of the mission is to strengthen the rule of law institutions within Kosovo for the benefit of all its people. The heart of our strategy is to offer support through monitoring, mentoring and advising our local colleagues in the police, judiciary and customs following best European practices. Local ownership is the key. EULEX will maintain a number of executive responsibilities but these will only be used in exceptional circumstances.”
10 Capacity building refers to externally designed programs including placing advisers in institutions, training, or equipment purchase. Conditionality means offering progress with EU accession based on the achievement of particular reforms. One internal EULEX Programme Office (Citation2009, 12) document explained that EULEX's strengthening activities “should be characterized as assistance, rather than formal capacity-building or more interventionist methods”.
11 The Commission and the EEAS obliquely explain,As concerns the recommendation for the Commission to take over EULEX's capacity-building functions, the mandate of the EU mission is to mentor monitor and advise the Kosovo authorities on the rule of law. EULEX also has some executive functions.
With regard to conditionality, they explain
EULEX is not mandated to use “conditionality” instruments to promote progress in rule of law in Kosovo; however, the aforementioned Visa Road Map and the Feasibility Study, to which EULEX fully contributes, are excellent tools to encourage the necessary reforms (ECA Citation2012, 26, 51, 59).
12 According to the programmatic approach, “MMA actions” were developed in consultation with Kosovo officials based on the staff's initial assessment. The MMA actions were in turn implemented through a formal process of proposal, specification, implementation, final reporting, and evaluation. EULEX's major statement of its effectiveness at strengthening Kosovo's rule of law institutions were yearly “Programme Reports”, in which the mission evaluated the fulfilment of its MMA actions (EULEX Citation2009c, 7–10).
13 Other MMA actions related to the police are similarly focused on technical bureaucratic issues. The MMA actions on patrols emphasized the absence of planning or systems or management, while those related to a “sustainable organization” focused on budget administration, fleet management, the overall organizational structure of the Kosovo Police, and information technology staffing (EULEX Citation2012b, 11–17).
14 For example, see the discussion of the release of intercepted conversation between high-ranking PDK members in the KIPRED (2013, 17–20) report.
15 For example, in April 2009, approximately 60% of staff was associated with the police function, compared with only 13% to the justice function. Jobs associated with judicial functions also remained disproportionately unfilled (KIPRED 2013, 12).
16 In an interview in July 2012, one EU official noted that EULEX already accounted for some 10% of Kosovo's judiciary.
17 For example, in May and June 2013, EULEX arrested five former KLA members on suspicion of war crimes, and convicted three others (Reuters, 23 May 2013; EULEX Citation2013).