Between Ownership and Imposition: EU Rule of Law Mission in Kosovo
Since 2003, the EU has launched 35 civil and military crisis management operations in Europe, Middle East and Africa. The biggest and the most ambitious among them is the Rule of Law Mission in Kosovo (EULEX). This civilian operation was launched in 2008 with the aim of supporting the establishment of effective rule of law institutions in Kosovo after it had declared independence from Serbia. At its peak, the mission comprised of 3200 personnel including policemen, judges and prosecutors from various European countries. In addition to advisory role, EULEX was also given an executive mandate to investigate and prosecute, on its own, serious cases of organized crime, corruption and war crimes.
According to the EU, local ownership is one of the core principles underpinning all of its crisis management operations including EULEX. In the most general sense, the local ownership principle is based on the assumption that international involvement in domestic processes is only viable if its adjusted to local context and if it relies on local capacities and commitment. The principle first emerged in the early 1990s within the field of development and then spread to other fields of international assistance such as democratization and peacebuilding. In recent years, local ownership has become, in the words of Oya Dursun-Ozkanca and Katy Crossley-Frolic “the gold standard of successful peace and state building”.
In practice, however, implementation of the local ownership principle in EULEX has been exasperatingly challenging, and three main obstacles stand out. To begin with, the local ownership principle has been undermined by the official neutrality of the mission towards the issue of Kosovo’s statehood. It is important to note that the policy of the EU is to only launch operations when there is consent of a host state and a clear UNSC mandate. In February 2008, Kosovo unilaterally declared independence, while Serbia fiercely objected the move. The EU planned to use this opportunity to send a mission to replace a preceding UN mission (UNMIK), which had been in Kosovo since 1999. Nonetheless. In order to do so, the EU needed a UNSC resolution and the only resolution in place was 1244, according to which Kosovo was still part of Serbia. This meant that EULEX needed Belgrade’s consent. Eventually, Serbia agreed with the launching of the mission under the condition that it would be status-neutral. Ever since, EULEX has had to navigate between the rhetoric of status-neutrality and the practice of capacity building and transferring ownership to the new Kosovar state.
The second obstacle for achieving local ownership has been the fact that Kosovo is a fragile country. Internationally, it is a contested state as approximately half of the UN member states still don’t recognize it. Among them are not only Serbia which still claims sovereignty over Kosovo, but also two permanent members of the UN Security Council – Russia and China as well as five EU member states – Cyprus, Greece, Romania, Slovakia and Spain. Domestically, Kosovo is weak not only due to relatively recent armed conflict that ended in 1999 and ongoing ethnic tension with its Serb minority but also due to a poor economy with one of the highest unemployment rates in Europe, rampant cronyism corruption and poor governance. When intervening to support institution building in such an environment, two key questions have been: how to achieve a genuine local ownership if the lack of capacities was the reason why the mission was launched in the first place and how to work with the locals but avoid empowering the ruling elites with a vested interest in keeping the status quo.
In order to navigate these challenges, the EU has tilted between imposition and compromise. In many cases, the EU had to impose solutions, as the local leadership was not ready to autonomously take the steps that the EU thought necessary. Hence, the EU has often used its executive mandate and issued many indictments for organized crime, corruption and war crimes, sometimes against elected officials and prominent figures in the Kosovar society. In so doing, however, the EU has had to be very careful not to alienate the Kosovar elite too much because if they openly turned against EULEX this could seriously hurt not only the public image of the mission but also the credibility of the EU as a whole. As a result of this risk-averse politicking of the EU, a vast majority of cases made by EULEX prosecutors and judges concerned secondary figures while only a few involved major lawbreakers. Even when the EU did initiate legal procedures against the big shots, they were cautiously selected and too often ended up in acquittals. The record on prosecuting war crimes was so bad that the EU and the EU pushed the Kosovar government to establish a special court for war crimes. Once established in 2016, it will be part of the Kosovo constitution but located in a foreign country and will adjudicate war crimes committed between 1 January 1998 and 31 December 2000.
The third obstacle to achieving local ownership lies within the EU itself. For starters, the mission has been micromanaged from Brussels while the EULEX staff has had insufficient operational autonomy on the ground. Sitting 1500 km away, the Eurocrats from Brussels may have been capable in finding a common denominator between 28 member states and translating it into a single policy but they haven’t always had the most accurate insight into the intricacies of a fast shifting local dynamics. Moreover, the local ownership principle has been hampered by high turn-over rate of EULEX staff who has often stayed in Kosovo no longer than six months. Before arriving to Kosovo many judges and prosecutors have had very little (if any) contextual knowledge, a problem compounded by weak induction training and unsystematic handover of duties. Lastly, from the very outset, the EULEX operation has been supply-driven. This means that the EU member states have offered capacities that they had at the disposal instead of providing capacities that were needed in Kosovo. Thus, for example, EULEX has provided many policemen, way more than Kosovo needed, while the EU member states have been reluctant to send sufficient number of qualified judges and prosecutors which are in short supply in Kosovo.
Eight years after the EU has launched EULEX, its most ambitious civilian operation ever, the results are characterized as mixed at best and as a debacle at worst. Kosovo police is in a better shape, but a judicial system is in a mess, and it’s clear that the effective rule of law requires both. One of the key reasons behind these underwhelming results has been the inability of the mission to better operationalize the local ownership principle. Instead of ensuring a genuine partnership with the widest circle of local shareholders, which would serve the needs of Kosovo population, the EU has been too focused on working with a government on technical aspects of capacity building. In addition to this, the efforts of EULEX have been supply-driven, decontextualized, highly fragmented, cost-ineffective and hamstrung by incoherence of EU foreign policy.
On 14 June 2016, the mandate of EULEX has been extended for another two years. The exact role of the mission is still to be negotiated between the government of Kosovo interested in further assuming ownership and the EU that wants to retain stronger prerogatives. Be that as it may, it remains to be seen whether the mission will be able to rectify at least some of the problems and live up to its rhetoric of local ownership without jeopardizing its stated goals. At stake are not only EULEX and EU foreign policy but also liberal state-building project more widely.
Published by Ynet on 7 July 2016 Available in Hebrew at www.ynet.co.il
