European Union approaches to police and human rights in the Western Balkans

Abstract

Since the 1990s the European Union (EU) has increasingly engaged with police and human rights issues in the Western Balkans. In the conflict and post-conflict context of the region, police and human rights issues are intertwined with the EU’s foreign policy and internal security objectives. Three types of EU approaches can be identified: containment, intervention, integration. They reflect member states’ concerns about migration (containment), the development and ambitions of the EU’s external action (intervention) and the consolidation of the EU’s area of justice, liberty and security (integration). These approaches are linked to three phases of dealing with the consequence of the conflicts and wars in the region, the EU’s engagement in state- and member-state- building and EU accession. The EU’s engagement in the area of human rights and police is based on quickly changing perceptions and policies. Despite shortcomings, the EU had a tangible impact on improving policing and the human rights situation. The article reviews developments until the end of 2014.

Keywords:

• Migration
• EU external action
• common security and defence policy
• justice
• liberty and security
• human rights
• democratic policing

Acknowledgements

The author would like to thank Gemma Collantes-Celador, Stephanie Schwandner-Sievers and the anonymous reviewer for helpful comments on earlier drafts of this article. The author is also grateful to Stefan Feller who greatly contributed to his understanding of policing and would like to thank Markus Mohler for the permission to reproduce the chart on the bearing of the European Convention on Human Rights.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Tobias Flessenkemper is a senior fellow and Balkans project director at the Centre international de formation européenne (CIFE) in Nice and lecturer in European politics at the University of Cologne. He is the co-founder and managing director of elbarlament.org, an advisory practice based in Berlin, focusing on innovation in democratic governance. He holds a Magister Artium in political science from the University of Cologne and the European Master in International Humanitarian Assistance (NOHA) from the Ruhr-University Bochum (Germany). During 2012/13 he was a visiting fellow at the Stiftung Wissenschaft und Politik (German Institute for International and Security Affairs) in Berlin. Until 2012 he served as senior policy advisor for the EU Police Mission in Bosnia and Herzegovina, programme coordinator of the EUPOL Proxima in Macedonia, EU expert of the German Centre for International Peace Operations (ZIF) and the OSCE Mission in Sarajevo. From 1998 to 2001 he was Secretary General of the European Youth Forum in Brussels, preceded by professional and voluntary assignments in European affairs in Belgium, Germany and Italy. His main research interests include the institutional, constitutional, security aspects as well as communication and cultural dimensions of European integration and EU external action.

Notes

1. Cf. Jean-Claude Piris, The Lisbon Treaty. A Legal and Political Analysis (Cambridge: Cambridge University Press, 2010), 71.

2. Treaty on European Union (TEU), 2009, Article 2.

3. Ibid., Article 21.

4. In general, the term police is used to describe the executive functions of law enforcement and the internal security sector. An earlier example of human rights obligations is the UN Code of Conduct for Law Enforcement Officials, adopted by the General Assembly in 1979, http://www.un.org/disarmament/convarms/ATTPrepCom/Background%20documents/CodeofConductforlawEnfOfficials-E.pdf (accessed 31 December 2014).

5. For example: Code of Conduct on Politico-Military Aspects of Security, adopted at the 91st Plenary Meeting of the Special Committee of the Conference on Security and Cooperation in Europe (CSCE), Forum for Security Co-operation, in Budapest on 3 December 1994, http://www.osce.org/fsc/41355 (accessed 31 December 2014); Council of Europe Committee of Ministers, Recommendation Rec (2001) 10 of the Committee of Ministers to Member States on the European Code of Police Ethics, adopted by the Committee of Ministers on 19 September 2001 at the 765th meeting of the Ministers’ Deputies, https://wcd.coe.int/ViewDoc.jsp?id=223251 (accessed 31 December 2014); Guidebook on Democratic Policing, produced in 2008 by the Senior Police Advisor to the OSCE Secretary-General, http://www.osce.org/spmu/23804 (accessed 31 December 2014).

6. OSCE, Guidebook on Democratic Policing, 12–13.

7. OSCE High Commissioner on National Minorities, Recommendations on Policing in Multi-Ethnic Societies (The Hague: OSCE, 2006), http://www.osce.org/hcnm/32227?download=true (accessed 31 December 2014).

8. The so-called TREVI cooperation, established in the mid-1970s, marks the start of police and internal security cooperation among member states within the European Community. Only with the Treaty of Maastricht (1993), a treaty-based cooperation in the area of Justice and Home Affairs was established as one of the three pillars of the EU. Cf. Tony Bunyan, ‘Trevi, Europol and the European State’, in Statewatching the New Europe, ed. Tony Bunyan (London: Statewatch, 1993), 1–15.

9. Cf. Jörg Monar, ‘The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs’, Journal of Common Market Studies 39, no. 4 (2001): 747–64.

10. The EU coined the term Western Balkans in the early 2000s to group together the successor states of Yugoslavia and Albania as potential EU member states, differentiating them from the other south-eastern European candidate countries at that time: Bulgaria, Romania and Turkey. Despite some similarities between the former Yugoslav countries and Albania, the cases are quite different. This article will focus on developments in the countries of the former Yugoslavia.

11. Cf. Roy Ginsburg and Susan E. Penksa, The EU and Global Security. The Politics of Impact (Basingstoke: Palgrave Macmillan, 2012), 17–49.

12. For a general introduction to EU–Western Balkans relations see Steven Blockmans, Tough Love: The European Union’s Relations with the Western Balkans (The Hague: TMC Asser, 2007).

13. Cf. Mary Kaldor, Mary Martin, and Sabine Selchow, ‘Human Security: A New Strategic Narrative for Europe’, International Affairs 83, no. 2 (2007): 273–88.

14. Cf. Gregory Mounier, ‘European Police Missions: From Security Sector Reform to Externalization of Internal Security Beyond the Borders’, HUMSEC Journal 1 (2007): 47–64, http://www.humsec.eu/cms/fileadmin/user_upload/humsec/Journal/Mounier_European_Police_Mssions.pdf (accessed 31 December 2014).

15. Cf. Florian Trauner, The Europeanization of the Western Balkans. EU Justice and Home Affairs in Croatia and Macedonia (Manchester and New York: Manchester University Press, 2011), 35–60.

16. Cf. Council of the European Union, Council Conclusions on the Application of Conditionality with a view to developing a Coherent EU-Strategy for the Relations with the Countries in the Region, Annex III, 2003rd Council Meeting, General Affairs, 29–30 April 1997.

17. Cf. Tina Freyburg and Solveig Richter, ‘National Identity Matters: The Limited Impact of EU Political Conditionality in the Western Balkans’, Journal of European Public Policy 17, no. 2 (2010): 263–81.

18. The recognition of Kosovo is the point in case. Twenty-three member states have recognised the Republic of Kosovo. Cyprus, Greece, Romania, the Slovak Republic and Spain have not.

19. Cf. Conference on Security and Co-operation in Europe (CSCE), The Charter of Paris for a New Europe, 3, http://www.osce.org/mc/39516?download=true (accessed 31 December 2014).

20. Cf. Richard Caplan, Europe and the Recognition of New States in Yugoslavia (Cambridge: Cambridge University Press, 2005), 53 and 191–6 (Treaty Provisions for the Convention (at 4 November 1991)).

21. Cf. Geert-Hinrich Ahrens, Diplomacy on the Edge. Containment of the Ethnic Conflict and the Minorities Working Group of the Conferences on Yugoslavia (Washington, DC: Woodrow Wilson Center Press, 2007), 310–51.

22. Marko-Attila Hoare, The History of Bosnia. From the Middle Ages to the Present Day (London: Saqi Books, 2007), 347.

23. The official name is the General Framework Agreement for Peace in Bosnia and Herzegovina, http://www.ohr.int/dpa/default.asp?content_id=380 (accessed 31 December 2014). Annex 4 (constitution), article III.1.g limits the policing responsibilities of the state-level to international and inter-entity coordination; article III.2.c underlines the primary responsibility of the entities for civilian law enforcement. The entities are the Republika Srpska and the Federation of Bosnia and Herzegovina, the latter’s constitution further regulates the primary competence of the ten ethnically defined cantons for law enforcement.

24. The text of the Ohrid Framework Agreement is at http://www.ucd.ie/ibis/filestore/Ohrid%20Framework%20Agreement.pdf (accessed 31 December 2014). Point 3.3. defines mechanisms of police decentralisation; point 4.2. establishes the principle for the representation of non-majority citizens in the police on a territorial basis (municipalities); annex B, point 4 defines the legislative change to establish the representative/territorial principle, and annex C point 5.2. further elaborates on hiring quotas for Albanians from the immediate implementation phase until 2004. The text of the ‘First agreement of principles governing the normalisation of relations’ of April 2013 is at http://www.rts.rs/upload/storyBoxFileData/2013/04/20/3224318/Originalni%20tekst%20Predloga%20sporazuma.pdf (accessed 31 December 2014). Point 9 of the agreement: ‘There shall be a Police Regional Commander for the four northern Serb majority municipalities (Northern Mitrovica, Zvecan, Zubin Potok and Leposavic). The Commander of this region shall be a Kosovo Serb nominated by the Ministry of Internal Affairs from a list provided by the four mayors on behalf of the Community/Association. The composition of the KP [Kosovo Police] in the north will reflect the ethnic composition of the population of the four municipalities. (There will be another Regional Commander for the municipalities of Mitrovica South, Skeneraj and Vushtrri). The regional commander of the four northern municipalities will cooperate with other regional commanders.’

25. Cf. Dominik Tolksdorf, ‘Police Reform and Conditionality’, in Ten Years After: Lessons from the EUPM in Bosnia and Herzegovina 2002–2012, ed. Tobias Flessenkemper and Damien Helly (Paris: European Union Institute for Security Studies, 2013), 20–6.

26. Differently from citizens of Yugoslavia, Albanians faced until 1990 probably the most severe travel restrictions of all European socialist states. Police and secret police evidently played a key role in maintaining control over the population and the border regime.

27. Cf. Arianit Koci and Tonin Gjuraj, The Relationship between Community Policing and Human Rights in Albania’s Police Reform, published as part of this IJHR special section on ‘Police and Human Rights in the Western Balkans’.

28. Cf. Antonio Maria Costa, ‘Preface’, in Crime and its Impact on the Balkans and Affected Countries (Vienna: United Nations Office on Drugs and Crime – UNODC, 2008), 5.

29. Cf. Iavor Rangelov, ‘EU Conditionality and Transitional Justice in the Former Yugoslavia’, in Croatian Yearbook of European Law and Policy CYELP 2 [2006], 365–75.

30. Cf. Nicolaos Strapatsas, ‘The European Union and its Contribution to the Development of the International Criminal Court’, Revue de Droit de l’Université de Sherbrook 33, no. 2 (2002–2003): 401–24. Cooperation with the ICTY was a key conditionality for the Stabilisation and Association process. With the adoption of the Rome Statute for the International Criminal Court (ICC) in 1998, the EU extended its membership conditions to include the ratification of the ICC Statute.

31. Cf. Ana E. Juncos, EU Foreign and Security Policy in Bosnia: The Politics of Coherence and Effectiveness (Manchester and New York: Manchester University Press, 2013), 99–116.

32. Cf. Council of the European Union, EU Comprehensive Concept for Strengthening of Local Police Missions, Document 9535/02, 31 May 2002, 6.

33. Cf. Council of the European Union, Lessons and Best Practices of Mainstreaming Human Rights and Gender into CSDP Military Operations and Civilian Missions, Document 17138/1/10 REV 1, 30 November 2010.

34. Cf. Tobias Flessenkemper, ‘EUPOL Proxima in Macedonia 2003–05’, in European Security and Defence Policy. An Implementation Perspective, ed. Michael Merlingen and Rasa Ostrauskaite (London and New York: Routledge, 2008), 78–96, 87–8.

35. Cf. Council of the European Union, Mainstreaming Human Rights across CFSP and Other EU Policies, Document 10076/06, 7 June 2006.

36. By the late 1970s devolution included also most prosecutorial functions to be performed at the level of the Republics. Cf. Lenard J. Cohen, The Socialist Pyramid: Elites and Powers in Yugoslavia (Oakville/New York: Mosaic Press, 1989), 257–94. Yugoslavia also enjoyed a comparatively liberal prison and incarceration system, which was heavily based on mainly localised detention and the principle of societal reintegration. Interview with Mr Roger Houchin, non-resident prison expert of the Council of Europe office in Sarajevo, Bosnia and Herzegovina, 21 June 2007.

37. Cf. Emir Suljagić, Ethnic Cleansing: Politics, Policy, Violence. Serb Ethnic Cleansing Campaign in Former Yugoslavia (Baden-Baden: Nomos, 2010).

38. Cf. Bridging the Gap between the ICTY and Communities in Bosnia and Herzegovina, Conference Series Prijedor, 25 June 2005, Proceedings (The Hague: International Criminal Tribunal for the former Yugoslavia, 2009), 48, http://www.icty.org/x/file/Outreach/Bridging_the_Gap/prijedor_en.pdf (accessed 31 December 2014).

39. Council of the EU, Council Joint Action of 11 March 2002 on the European Union Police Mission (2002/210/CFSP), Annex ‘Mission Statement for EUPM’, II. Objectives at operational level, point 4., 6th indent, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:070:0001:006:EN:PDF (accessed 31 December 2014).

40. Vetting processes are not free of contradictions, as exemplified by the case of Bosnia and Herzegovina. International organisations carrying out the vetting process failed to uphold basic procedural guarantees of the vetted individuals, thereby violating fundamental constitutionally guaranteed rights of, in this case, police officials. Cf. Gemma Collantes-Celador, ‘Civil Society and the Bosnian Police Certification Process: Challenging the “Guardians”’, in Civil Society and Transitions in the Western Balkans, ed. Vesna Bojicic-Dzelilovic, James Ker-Lindsay, and Denisa Kostovicova (Basingstoke: Palgrave Macmillan, 2013), 177–95.

41. Cf. Flessenkemper, ‘EUPOL Proxima in Macedonia 2003–05’, 78–96, 90.

42. Commission of the European Communities, Communication from the Commission to the Council and the European Parliament: A Concept for European Community Support for Security Sector Reform, Document COM (2006) 253 final, 24 May 2006.

43. Daniel Korski and Richard Gowan, Can the EU Rebuild Failing States? A Review of Europe’s Civilian Capacities (London: European Council of Foreign Relations, 2009), 27.

44. The UN missions were staffed to a high percentage with personnel from EU member, and at that time acceding, states (future EU 25/27).

45. The contradiction between (individual) ‘human security’ concerns and the interest of EU member states to declare successes in peace consolidation, mostly comes to the fore when persons who have enjoyed temporary protection in EU member states are to be deported to their countries of origin. In Germany, a parliamentary initiative in 2000 tried to stop the deportation of war refugees back to Bosnia and Herzegovina. The initiative was repeated in 2010 after Germany signed a readmission agreement with the Republic of Kosovo. Members of parliament tried to prevent the deportation of Roma who had enjoyed subsidiary protection since 1999. Cf. Plenary Minutes of the German Bundestag, Session on 6 July 2000, Humanitäre Grundsätze der Flüchtlingspolitik beachten [Respecting Humanitarian Principles of Refugee Policy], Drucksache [Document] 14/3729 and Osterappell 2010, http://www.proasyl.de/fileadmin/fm-dam/NEWS/2010/Oster-Appell_2010.pdf (accessed 31 December 2014).

46. Markus H. F. Mohler, Principles and Concept of Democratic Policing, Presentation at the Geneva Centre for Democratic Control of Armed Forces (DCAF), Seminar on Police Reform and Cooperation in the Western Balkans on the Path to EU Integration, Geneva, 15 July 2009, https://ius.unibas.ch/uploads/publics/3509/Principles_and_Concept_of_Democratic_Policing__DCAF__090715.ppt (accessed 31 December 2014).

47. Cf. European Commission, Communication from the Commission to the Council and the European Parliament: Enlargement Strategy and Main Challenges 2011–2012, Document COM (2011) 666 final, 12 October 2011.

48. Cf. among others Jörg Monar, ‘The EU’s Externalisation of Internal Security Objectives: Perspectives after Lisbon and Stockholm’, The International Spectator: Italian Journal of International Affairs 45, no 2 (2010): 23–39.

49. Cf. Barry Ryan, ‘The EU’s Emergent Security-first Agenda: Securing Albania and Montenegro’, Security Dialogue 40, no. 3 (2009): 311–31.

50. Isabelle Ioannides and Gemma Collantes-Celador, ‘The Internal–External Security Nexus and EU Police/Rule of Law Missions in the Western Balkans’, Conflict, Security & Development 11, no. 4 (2011): 432 ff.

51. Cf. Isabelle Ioannides, Peace and Security in 2018: An Evaluation of EU Peacebuilding in the Western Balkans (Brussels: European Parliamentary Research Service, 2018).

52. Ioannides and Collantes-Celador, ‘The Internal-External Security Nexus’, 436.

53. Cf. European Court of Auditors, Special Report 18/2012: European Union support to Kosovo related to the Rule of Law (Luxembourg: Publication Office of the European Union, 2012).

54. A key event was a ministerial conference organised by the Austrian EU presidency in Vienna from 4 to 5 May 2006 on ‘The role of internal security in relations between the EU and its neighbours’ focussing on the three topics of asylum and migration; organised crime and corruption; and the fight against terrorism. The programme and key documents can be found at http://www.eu2006.at/en/The_Council_Presidency/security/index.html (accessed 31 December 2014).

55. Cf. Christian Axboe Nielsen, ‘Stronger than the State? Football Hooliganism, Political Extremism and the Gay Pride Parades in Serbia’, Sport in Society: Cultures, Commerce, Media, Politics 16, no. 7 (2013): 7.

56. For a comprehensive analysis of the situation in Serbia, see Filip Ejdus and Mina Božović, Europeanisation and Indirect Resistance: Serbian Police and Pride Parades, published as part of this IJHR special section on ‘Police and Human Rights in the Western Balkans’.

57. Secretary of State Condoleezza Rice on 22 February 2008: ‘The Serb Government … had an obligation to protect diplomatic missions and from what we can tell, the police presence was either inadequate or unresponsive at the time’, http://blogs.state.gov/stories/2008/02/22/us-embassy-belgrade-attacked#sthash.o3pSRPZW.dpuf (accessed 23 February 2008).

58. Cf. Axboe Nielsen, ‘Stronger than the State?’, 7.

59. The events were reminiscent of a similar situation in Sarajevo, Bosnia and Herzegovina in September 2008 when a ‘Pride’ event was attacked and cancelled. The police proved unprepared to fulfil its obligations to protect the event.

60. Reuters, ‘Serbia Bans Gay Pride March Again, Citing Right-wing Threat’, 27 September 2013, http://www.reuters.com/article/2013/09/27/us-serbia-gaypride-idUSBRE98Q14K20130927 (accessed 31 December 2014).

61. Council of the European Union, Guidelines to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Persons, adopted by the Foreign Affairs Council on 24 June 2013.

62. In September 2013, the EU co-financed a training of police officers from Canton Sarajevo on ‘hate crimes – criminal acts on the grounds of sexual orientation and gender identity’. According to the organisers, ‘the goal of this training is to sensitise police officers to the problems of LGBT persons and the need to fully implement and protect the human rights of LGBT persons in Bosnia and Herzegovina’. Cf. Sarajevo Open Centre, First Education of 19 Community Police Officers on the Rights of LGBT Persons held, http://soc.ba/en/first-education-of-19-community-police-officer-on-the-rights-of-lgbt-persons-held/ (accessed 31 December 2014).

63. Tobias Flessenkemper and Tobias Bütow, ‘Building and Removing Visa Walls: On European Integration of the Western Balkans’, Security and Peace 29, no. 3 (2011): 164.

64. The process with Kosovo was delayed. The process needed to be adapted because five EU member states do not recognise the Republic of Kosovo. This created legal difficulties, namely for the signing of a readmission agreement with the EU. A visa dialogue with Kosovo was launched in 2012.

65. In 2010, when proposing to grant visa-free travel to the citizens of Albania and Bosnia and Herzegovina, the European Commission announced a proposal for a suspension of visa-free travel in certain circumstances. The amendment came into force in December 2013, summary, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/139926.pdf (accessed 31 December 2014).

66. A collection of official documents and correspondence on the issues discussed here can be found at http://romarights.wordpress.com/visa-liberalisation-vs-asylum/ (accessed 31 December 2014).

67. The policy had a precedent in 2009. As a condition for visa liberalisation the EU demanded from Serbia the issuance of separate travel documents for Serbs residing in Kosovo, although constitutionally they were citizens of Serbia. As a member of the Council of Europe and a party to the ECHR, Serbia was forced to introduce de jure discriminatory measures against a part of its population. De facto the EU aimed with this request to untangle Serbia and Kosovo and to deal with them as two legally separate entities with distinct relations to the EU.

68. German Federal Office for Migration and Refugees, Safe Third States, http://www.bamf.de/EN/Service/Left/Glossary/_function/glossar.html?lv2=1450806&lv3=1504270 (accessed 31 December 2014).

69. Cf. Tobias Flessenkemper, ‘The EU and Transitional Justice in the Former Yugoslavia – Slow Support, Spent Ambition, Lowered Expectations’, Südosteuropa Mitteilungen 58, no. 2 (2018).

70. George Parker and James Fontanella-Khan, ‘Theresa May Outlines Scope of UK Opt-out of EU Justice Measures’, Financial Times, 9 July 2013, http://www.ft.com/intl/cms/s/0/206318b2-e894-11e2-8e9e-00144feabdc0.html#axzz2gE4NFNVC (accessed 31 December 2014).