The EULEX Legacy in the Kosovo Courts

Changing laws in a country is often relatively easy; changing the culture in regard to the application of those laws is never easy. To date, EULEX has done nothing to attempt to address this fundamental problem and now it is too late according to the author, a US judge who spent the last year in the mission

As EULEX begins what many believe will be its final twenty months in Kosovo (ending 14 June 2016), it seems like an appropriate time to assess what it has — and has not — accomplished in its work in the courts in Kosovo and what if anything of value can be expected to be accomplished in the next twenty months. What follows are my observations from having spent the last year working as a EULEX judge both in the Court of Appeals and in the Basic Court of Mitrovica trying major criminal cases.

Following the end of the war in the Balkans in mid1999 the part of Serbia that is known as Kosovo came under the protection and direction of the United Nations by virtue of UN Resolution 1244. For the next nine years the UN mission worked to establish a whole new governmental structure for Kosovo. As these governmental structures were developed and implemented they were gradually migrated to the control and management of the local population.

In 2008 three significant events occurred. First, Kosovo declared itself an independent country. Second, the UN turned over its supervisory authority of Kosovo to the European Union. And third, Kosovo entered into an agreement with the European Union for the establishment of the European Union Rule of Law Mission in Kosovo—EULEX.

The overarching goal of the EULEX mission was to strengthen the rule of law in Kosovo by strengthening mainly its courts, prosecution and police functions. To carry out its mission EULEX established an Executive Division and a Strengthening Division. The Strengthening Division focused on mentoring, monitoring and modeling activities to assist in the modernization and professionalization of mostly police related functions. The role of the Executive Division had a very different focus.

The role of the Executive Division was to in essence operate a separate and autonomous court system in Kosovo focused almost exclusively on the investigation, prosecution and trial of major criminal cases, mostly involving organized crime, government corruption, war crimes, human trafficking and major violent felonies.

While the criminal cases pursued by EULEX are prosecuted using the provisions of the Kosovo criminal code and use the local courts for case filing and administrative purposes, all other aspects of the adjudication of these cases are under the complete control of EULEX judges, prosecutors and police investigators, even at the appellate court level. About the only concession to integration into the Kosovo judicial system was to provide for instances where one local judge would be included with two EULEX judges on trial and appellate panels.

For the last almost six years EULEX has recruited numerous judges, prosecutors and police investigators from various European countries and the United States to live and work in Kosovo and to adjudicate the criminal cases within its exclusive jurisdiction. They have investigated, prosecuted and conducted trials in a few hundred fairly high profile cases, with varying results.

Most of the focus of the various people and organizations that have purported to “evaluate” the success or failure of the EULEX mission has been on the usual court statistics of cases filed, tried, won, lost and time to disposition. From my perspective, these evaluations are completely valueless in that they have, like EULEX itself, failed to focus on the real measure of success or failure for the mission. The core question for evaluating the success or failure of the EULEX mission should be whether Kosovo, after almost 6 years of work by EULEX, is demonstrably more willing and able to investigate, prosecute and adjudicate the types of major crimes that have been under the exclusive jurisdiction of EULEX than it was before the EULEX mission began.

No improvement

Despite the assistance of EULEX, the situation in the criminal justice system in Kosovo has not improved in any significant way. To date, there has been little effort by the local prosecutors and courts to undertake difficult or high-profile cases. In effect, the judges and prosecutors from EULEX have spent their time just doing for Kosovo what it would not do for itself. This situation then begs two questions: why is Kosovo not making progress in improving its capacity to handle these high profile cases and what if any role should EULEX continue play in the justice system of Kosovo in the future? To answer these two questions it is necessary to understand what it is that is keeping Kosovo from moving forward in the justice arena.

The most immediate and obvious reason the Kosovo justice system has not made demonstrable progress arises because of the approach of EULEX in relation to the courts and prosecution. Cases handled by EULEX are prosecuted exclusively by EULEX prosecutors. There is no partnering with, nor mentoring of local prosecutors in the attempt to grow their skills and confidence in handling major cases. In the courts the composition of the three-judge trial panels is either all EULEX judges or, at best, two EULEX judges and one local judge. No local judge is ever designated as the presiding judge of the panel and thus empowered to manage the trial. Even at the level of the Court of Appeals the panel structure usually remains the same as in the trial court.

As ineffective as the whole EULEX courts and prosecution process has been across Kosovo the situation has been even more of a failure in the northern part of the country in the Mitrovica region. However, the problem there has not been entirely of EULEX’s making. To understand the unique situation in Mitrovica a short historical review is necessary.

In 1999 as the bombing campaign brought the war to a close a great number of Serbians in Kosovo fled into Serbia. However, a substantial number only moved just north of the Ibar River in northern Kosovo. They now occupy an approximately 22 square mile area that is contiguous to the Serbian border.

In what has turned out to be a great blunder, the United Nations tacitly allowed the Serbian population in this enclave to act as though it was part of Serbia rather than concentrating on integrating this population into the greater Kosovo population which is overwhelmingly Albanian. As a result, how to deal with this Serbian enclave is a constant source of conflict between Kosovo and Serbia.

One of the conflicts that has arisen as a result of this division directly relates to the courts for the Mitrovica region of Kosovo. The Mitrovica courthouse is north of the Ibar River in the Serbian enclave. Rioting and other resistive actions have prevented the use of the courthouse by the local (Albanian) judiciary and prosecution. As a result, the court for the Mitrovica region is held in a small courthouse in a nearby town. It is entirely inadequate for the local judges and prosecutors and could not accommodate the presence of EULEX as well.

Given this circumstance, an accommodation was eventually worked out between the Serbian government in Belgrade and EULEX that the courthouse in the north would be used exclusively by EULEX and that no local Albanian judges, prosecutors or court staff would be allowed.

This agreement between the Serbians and EULEX has effectively eliminated all local judges and prosecutors from working on cases being handled by EULEX in Mitrovica. Thus, the international judges of EULEX operate as a world unto themselves and completely without contact with or input from local judges or prosecutors. In essence it is the blind leading the blind as the 14 EULEX judges from all over Europe and the United States try to apply Kosovo law without the benefit of input from local judges or prosecutors.

Given the all but complete dominance of EULEX of the prosecution, trial and appeal of cases under their jurisdiction it is no wonder that local prosecutors and judges have not made any progress in their willingness or ability to handle major criminal cases. EULEX has done it for them rather than assisting them in doing it for themselves.

In addition to this obvious reason why the justice system has not made demonstrable progress during the time of the EULEX mission, there are more fundamental and less obvious impediments to progress as well.

Corruption, family relationships and the "war hero" factor

While there are numerous factors that contribute to Kosovo’s inability to increase the effectiveness of its criminal justice system the main impediments seems to be government corruption, organized crime, family relationships and what might be called the “war hero” factor. While all of these things are more or less intertwined, each one has its peculiar aspects and effects.

Even a cursory search of the Internet for articles on Kosovo will reveal that it is universally acknowledged that corruption is rampant in all levels of the government. Much of it can be found in the upper levels of the government. Just one indication of the pervasive nature of this corruption is the fact that the now former head of the Kosovo agency charged with leading the campaign against government corruption is under indictment for corruption. A substantial number of city mayors or former mayors are either in jail or under indictment for corruption.

Given the pervasive nature of government corruption there is little wonder that the local prosecutors and courts do not have the will to aggressively investigate and prosecute these crimes. There are simply too many influential people who are too heavily invested in the status quo.

Organized crime in Kosovo tends to be truly a family operation. It often involves the patriarch, sons, uncles, cousins and daughters’ husbands in some combination or another. There are a number of these powerful criminal families and they tend to be engaged in various criminal enterprises such as smuggling, extortion, loan sharking, human trafficking and selling counterfeit goods.

Besides the use of violence and other forms of coercion, many of these families are connected to various government officials thus giving them additional power to intimidate and control judges, prosecutors and witnesses. In deliberations on EULEX cases where a local judge has been included on the trial panel, EULEX judges report that some of these judges have candidly said that they could not vote for a conviction in the case because if they did their children would never get a job, or other economic or social deprivations would be visited upon family members.

Family is of prime importance in Kosovo society—they are extended, tightly knit and they protect their own. Given the nature of family relationships, it is often the case that when it comes to criminal activity, whether of the “organized” variety or just the everyday variety that occurs in all societies, family relationships often shape evidence given by potential witnesses. In some cases this can extend to families deciding who should be sacrificed to the reach of the law where it is clear that the police are going to have a strong case against some family member. For example, even though the elder son may have actually committed the crime, the family may play a role in pointing the finger at the youngest brother to keep the eldest brother out of jail.

Finally, there is the “war hero” phenomenon. The EULEX prosecutors have filed numerous indictments against people who were high level leaders in the KLA — the Kosovo Liberation Army — which was the main resistance force against the Serbians in the 1999 war. These indictments have been for war crimes committed during the conflict as well as for serious criminal activity carried out over the years since the war.

Whenever there are indictments filed against these “war heroes” a great hue and cry is raised and their innocence is loudly proclaimed by prominent citizens and government officials. It appears that having been a “war hero” in the battle against the Serbians is seen by many in Kosovo - at least among the powerful - as having given the person immunity from criminal prosecution for life, no matter how heinous the criminal allegations may be.

A Gordian knot

In Kosovo the four impediments to equal justice discussed above are woven together through the current culture in a Gordian knot which has and will continue to restrict the development of the rule of law and the equal application of the law to all members and levels of society.

Changing laws in a country is often relatively easy; changing the culture in regard to the application of those laws is never easy. Culture change is a difficult process that is very long, very slow and very complex. To date, EULEX has done nothing to attempt to address this fundamental problem and now it is too late. A twenty month effort directed at culture change would be like pouring a glass of water in the ocean.

Given these cultural impediments to any substantial improvement in the rule of law in Kosovo and the failure of EULEX to address them during the first six years of its mission, what role—if any—should EULEX seek to continue to play in Kosovo as its mandate moves toward an end?

One thing is clear. The role of EULEX going forward will not be the same. The government of Kosovo has recently forced a major change in the EULEX mission. The executive authority of EULEX to prosecute and adjudicate criminal case has been greatly restricted. The police, prosecution and courts have been mostly moved under local control. Most trial and appellate panels will be composed of a majority of local judges, one of whom will preside. Prosecutors will mostly work at the direction of and under the control of the local prosecution office. For the first time since the beginning of the EULEX mission the Kosovars will be in charge. Whether they will look to EULEX for mentoring and modeling with an eye towards increasing their skills remains to be seen, but it seems unlikely. The groundwork for making this role reversal work simply has not been done, either by EULEX or the locals.

With the change of status that has been forced upon the EULEX mission the real question is how EULEX will respond. Will it attempt to evolve into a mentoring, monitoring and modeling role for the final twenty months of the mission even though no groundwork has been laid for such a transition? Will it simply sit back, accept its minority status and let the clock wind down?

While at this point it is not clear that EULEX even has a strategy, given the substantial impediments to accomplishing anything of value in the next twenty months, simply letting the clock wind down and the EULEX caseload dwindle to zero would seem to be the most likely scenario.

As the EULEX mission in Kosovo moves into what may well be its final phase one thing is clear. After six years and the expenditure of hundreds of millions of Euros the ill-conceived EULEX mission has produced no demonstrable improvement in the courts and prosecution services in Kosovo and twenty more months of a reduced role for EULEX will produce nothing of value in this regard.

Even if the EULEX mission had been conceived and executed as a mentoring and modeling process for courts and prosecutors it is unlikely that a substantial improvement would have been seen. The cultural elements that impede progress are just too strong and there has been no effective effort to begin a process to change these. Unfortunately, Kosovo is like the light bulb in the old joke, “How many people does it take to change a light bulb? Only one… but the light bulb really needs to want to change.”

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* James Hargreaves is a Senior Judge in the State of Oregon in the United States. He has served as a trial court judge for over 30 years. Since the year 2002 he has worked as an international consultant in numerous developing countries around the world assisting courts mainly in the areas of court and case management and the introduction and use of appropriate technology. He has most recently served as a trial and appellate court judge in the Kosovo judiciary as part of the EULEX mission