“Instead of Europeanizing Kosovo, We Have Balkanized EULEX”: The Need for Continued Localization in the EU’s Largest Mission

The European Union Rule of Law Mission in Kosovo (EULEX)—the EU’s largest, costliest, and most ambitious mission—has operated in Kosovo for almost a decade with the goal of assisting the country’s judicial authorities and law enforcement agencies in tackling organized crime, corruption, and other threats to the country’s stability. To date, the 800-person mission—which consists of police officers, prosecutors, judges, and has its own power of arrest and prosecution—has resulted in over 40,000 court judgments and the investigation of over 400 war crimes. Yet allegations of corruption have dogged the project. Three years ago, Maria Bamieh was dismissed from her position as a EULEX prosecutor when she alleged corruption within the Mission, including a €300,000 bribe accepted by a EULEX judge. While a subsequent investigation and report by Professor Jean-Paul Jacqué (on behalf of the EU) dismissed Ms. Bamieh’s specific allegations, the report recommended that EULEX be reformed to better deal with corruption—a problem that, the report noted, remained “omnipresent in Kosovo.” Allegations of corruption were re-ignited in late 2017, when EULEX’s Chief Judge, Malcolm Simmons, resigned after alleging “several cases of corruption at the heart of the mission.” The accusations and counter-accusations between Judge Simmons and EULEX are complicated, and it is not my objective here to try to evaluate their credibility. In brief, Judge Simmons’ most serious allegation is that senior EULEX officials pressured him to convict Deputy Prime Minister (and former Kosovo Liberation Army commander) Fatmir Limaj, in order to prevent Mr. Limaj from taking part in the Kosovan election. (Judge Simmons also leveled other accusations, including an improper romantic relationship between a judge and a Kosovan jurist, and that a fellow judge had hacked his email.) The Mission swiftly responded that Judge Simmons himself was “the subject of a series of independent investigations into serious allegations against him,” with an EU official acknowledging that Judge Simmons is subject to five investigations and “allegations that Simmons interfered in some of the most important verdicts” in recent years. While it remains to be seen which allegations (if any) are true, the situation appears to be lose-lose for the EULEX mission.

The current EULEX mandate expires on June 14, 2018. The controversy swirling around Judge Simmons’ resignation, coupled with the upcoming discussions as to whether to renew EULEX’s mandate, provides a timely opportunity to reassess a flaw that has plagued EULEX since its inception: an actual and perceived lack of trust and accountability between the mission and local Kosovan judicial and law enforcement authorities. If EULEX’s mandate is renewed this year, steps should be taken to address this problem.

EULEX’s disconnect from the local judicial authorities and law enforcement results for a number of reasons. First, EU officials—and many Kosovans themselves—strongly distrust local institutions such as parliament and government. Second, as the only EU mission with an executive mandate, EULEX entered Kosovo with a shorter-term vision of targeting “big fish,” rather than prioritizing the long-term stability of the mission. This longer-term focus should have included an early emphasis on communication and collaboration between local officials and EULEX prosecutors, judges, and police officers. Third, the EULEX mission lacks accountability to Kosovan authorities. As Professor Filip Ejdus has noted, “EULEX persistently refused to become accountable to Kosovo’s Parliament, Ombudsman or Anti-Corruption Agency and struggled to meaningfully engage with civil society organisations.” This view is shared by Shpend Ahmeti, the current mayor of Pristina, who observed that “Eulex has no accountability to the Kosovo people.” This all led Professor Ejdus to conclude that “EULEX has either disregarded the local ownership principle altogether, or at best practiced it as an outside-in and elite-centered transfer of responsibility for externally devised objectives.”

This lack of trust hinders the success of the mission, particularly since it is shared and expressed by many of Kosovo’s top political officials. For example, in response to Judge Simmons’ resignation, Kosovo’s Prime Minister, Ramush Haradinaj noted his “concern about the quality and standards used” by EULEX. Similarly, Mayor Ahmeti has specifically criticized EULEX’s disconnect from the local community and law enforcement: “[w]e want to discuss with Brussels how to replace Eulex with good local investigators and prosecution and the EU helps us with advice not in executive power.” Judge Simmons’ resignation demonstrates the effects of this disconnect, as a lack of trust and accountability between EULEX and local officials make the mission more susceptible to internal corruption while stymieing the development of local judicial capacity. As Professor Stephenson noted last year, a disconnect between foreign and local anticorruption institutions—particularly in cases of the broad outsourcing of domestic functions—can generate corruption through a lack of accountability and can retard the development of domestic capacity.

EULEX’s mandate was renewed in 2010, 2012, 2014, and 2016, and will likely be renewed again in 2018. Since Professor Jacqué’s Report in 2014, the Mission has made laudable efforts to transfer power to local anticorruption institutions. For example, when the Mission’s mandate was extended in 2014, it shifted the composition of court panels to be majority Kosovan and minority international, and determined that the Mission would not take on new cases and would gradually hand over competencies to the Kosovo judicial system. Similarly, in 2016 the Mission shifted important competencies—including criminal investigations, new trials, and formation of judicial panels—to local authorities and further limited the special circumstances in which EULEX becomes involved. In fact, the Mission emphasized that as a matter of principle, EULEX prosecutors and judges should conduct investigations and trials “[o]nly in extraordinary circumstances.”

In the wake of Judge Simmons’ allegations, the EU’s investigation into his conduct, and other legitimate critiques of the mission, any renewal of the mandate in 2018 should continue the shift towards engagement with local communities and authorities. This should include transferring competences and power to local authorities and a re-emphasis on EULEX involvement in only important cases. Other measures to localize EULEX should be explored and considered, including renewing the mandate under a different name or continuing operation under the umbrella of the EU Office in Kosovo. Regardless of which measures are considered and ultimately adopted, Judge Simmons’ resignation should serve as a reminder that any renewal of the mandate in 2018 should continue to transfer and trust competences and power to local communities and authorities. This would help to combat internal corruption at EULEX, further accountability, and bolster local institutional capacity and efficiency.

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