“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.

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Internationalizing the Fight Against Corruption: The EU Mission in Kosovo

For countries saddled with a tight-knit, corrupt leadership class, what happened last week in Guatemala is cause for celebration.  There a normally meek judiciary slapped down the president’s effort to end a corruption investigation that threatens his rule.  What made the difference was the investigation is led by a United Nations entity created under an accord an earlier government had signed with the U.N.  The agreement, and the support it enjoys both in Guatemala and abroad, gave the nation’s Constitutional Court both the legal rationale and the backbone to tell the president that even he was not above the law.

Before corruption fighters embrace internationalization as the deus ex machina in the corruption fight, however, they will want to pay heed to another, far less publicized event, that also took place last week: publication of Joschka Proksik’s analyis of the European Union’s rule of law mission in Kosovo ( (published in this volume). As with Guatemala, the government of Kosovo agreed to share with an international agency the power to enforce the nation’s criminal law.  Unlike Guatemala, however, where the U.N. can only investigate allegations of criminal misconduct and domestic prosecutors and courts must take it from there, in Kosovo the EU’s power is unlimited.  EU personnel can at any time and for any reason investigate, prosecute, and judge whether a Kosovar has violated the nation’s criminal law — without any involvement whatsoever by local authorities.  Moreover, EULEX, as the mission is known, is far larger and far better resourced than the UN’s Guatemalan mission, staffed at its peak by some 1,900 international personnel at a cost of over €100 million in administrative expense alone.

Proksik interviewed dozens of current and former EULEX staff, analyzed data on investigations, prosecutions, and convictions, and perused pervious evaluations by the European Union and independent observers to determine what the progress EULEX has made in its almost nine-year life in realizing its core objectives of helping Kosovo’s judiciary and law enforcement agencies remain “free from political interference” and adhere to “internationally recognized standards and European best practices.”  Because his careful, balanced, professional assessment merits the attention of aIl looking for ways to help countries stuck with corrupt leaders, I won’t give away the bottom line.  But safe to say it forms an important counter to the Guatemala experience.

Proksik suggests some reasons why the results of internationalizing the corruption fight in the two countries differ so: EU’s large and unwieldy bureaucracy, the lack of a shared language between Kosovars and internationals, and the short-term secondments of many international staff.  As Matthew explained earlier this year, there are pros and cons to internationalizing, or outsourcing, the fight against corruption.  Given what a successful effort can achieve, understanding why the results in Kosovo have been so different from those in Guatemala is surely a topic worthy of sustained, careful attention.

When Should Countries Outsource Key Anticorruption Functions to Foreigners?

Partly because of previous work I’ve done (with Sofie Schütte of the U4 Centre) on specialized anticorruption courts, I recently had the opportunity to participate in some interesting discussions in Kiev about ongoing debates about the possible the creation of such a court for Ukraine. There’s much to say on this topic generally, but what most and surprised me about the discussions I was fortunate enough to attend was how much they focused on a specific proposal—advanced by certain influential members of the Ukrainian civil society community—for the international donor community to participate (indirectly but formally) in the selection of the judges to serve on this court. There are a few different proposals floating around, but I’ll focus on the version embraced by a draft law currently pending in the Ukrainian Parliament. Under this proposal, judges on the special anticorruption court would be chosen by a nine-member Judicial Selection Committee. Of these nine members, three would be appointed by the President, three would be appointed by the Parliament, and three would be selected by the international donor community. (Formally, the last three would be appointed by the Minister of Justice, but that’s a formality: According to the proposal, the Minister of Justice would be obligated to consult with the international donor community and to appoint the three individuals that they recommend.)

For some in the civil society community, this feature of the proposal is absolutely essential, and they fear that without a formal role for the international community in the judicial selection process, the anticorruption court will be a failure. Others feel equally passionately that formalizing a role for international donors in the selection of special court judges is deeply misguided, and will jeopardize (both politically and legally) the special court experiment. I don’t know nearly enough about Ukraine’s specific situation to have an informed view on this one way or the other. But the proposal seemed sufficiently novel and interesting to be worth contemplating more generally. After all, though to the best of my knowledge there’s no precedent for what the draft Ukrainian law proposes, it’s not unheard of for countries to “outsource” (for lack of a better term) aspects of the law enforcement apparatus that most countries most of the time would consider core functions of the state, particularly in the context of anticorruption or closely related matters. (Probably the best known example is CICIG in Guatemala, in which a UN-sponsored body, headed by a non-citizen, has substantial investigative—though not prosecutorial or adjudicative—powers.) Is this an approach that more countries should adopt—for their investigators, prosecutors, or even their courts?

Again, I don’t have a terribly strong or well-informed view on this question, so this isn’t one of those posts where I’m going to take an aggressive, argumentative stand. I’m still thinking this through myself. But I figured that since this question might be of interest to others as well, I’ll offer a few thoughts on the possible advantages and disadvantages of outsourcing some or all of a state’s core law enforcement functions. I’ll think about this mainly in the context of anticorruption, though many of the arguments would apply more generally.

Long story short: I can think of two big potential advantages for this sort of outsourcing, and four countervailing drawbacks. Continue reading

Guest Post: Empowering Youth To Fight Corruption — Examples from Kosovo

Shqipe Neziri, Manager with UNDP’s anticorruption program in Kosovo, contributes the following guest post on behalf of UNDP-Kosovo. [Note: For purposes of this post, in reflection of the fact that Kosovo is not a member of the UN, references to “Kosovo” should be understood to be in the context of Security Council Resolution 1244 (1999)):

Young people are often forgotten victims of corruption, left without an opportunity to voice their concerns, to help make positive changes, or to enhance their skills and become active citizens for a better future. Yet young people can play an important role in the fight against corruption. They tend to be more open to wide-scale socio-political transformation and have less vested interested in maintaining the status quo. Moreover, the values and attitudes of young people today will shape the values of the society tomorrow. The question is how to harness then energy and innovation of young people, and to provide the right kinds of support.

UNDP’s recent efforts in Kosovo may provide an example of how to foster a youth-based anticorruption movement. Corruption in Kosovo is a serious problem, viewed by Kosovars as the third-most serious problem, after poverty and unemployment. Kosovo’s population skews young –half of its 2 million citizens are under the age of 30 – and Kosovo’s young people are frustrated by corruption and lack of economic opportunity. (The overall unemployment rate is 35%, while unemployment rate of youth aged 15-24 years is 60%.) For several years, UNDP Kosovo has been placing youth at the core of its development support. Through our anticorruption efforts we have been helping to strengthen the voice of the youth and to foster their participation in decision making through the use of traditional and social media, and working to make institutions more responsive to youth.

What are some of our most successful youth-focused anticorruption initiatives? Here are some examples, which might serve as useful models for others: Continue reading