¹ While NATO was flying air raids towards targets in the former Federal Republic of Yugoslavia, including in Belgrade and Pristina, the European Commission on 26 May 1999 published its communication in this respect. See Communication from the Commission to the Council and the European Parliament on the Stabilisation and Association Process for Countries of South-Eastern Europe: Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Former Yugoslav Republic of Macedonia, and Albania, COM (1999) 235 final (26 May 1999).Google Scholar

² The territory is referred to as Kosovo in the Serbian language and as Kosova in Albanian. Without wanting to take a political stance, and only for reasons of simplicity and predominant international usage, the appellation “Kosovo” will be used throughout this contribution. The term “Kosovo” can also be considered as an abbreviation of the term used by European Union institutions, namely “Kosovo under UNSCR 1244.”Google Scholar

³ European Council, Presidency Conclusions, Council Doc. 11638/03, at 41 (June 2003) (endorsing the GAERC Council Conclusions’ “Thessaloniki Agenda for the Western Balkans: moving towards European integration“ of 16 June 2003). See also Communication from the European Commission, A European Future for Kosovo, COM 156 (2005) final.Google Scholar

⁴ With the entry into force of the Treaty of Lisbon, the term European Security and Defense Policy (ESDP) is replaced by Common Security and Defense Policy (CSDP). See Consolidated Version of the Treaty on European Union, Title V, Chapter 2, Section 2, 2008 O.J. (C 115) (9 May 2008).Google Scholar

⁵ See European Council, A Secure Europe in a Better World (2003).Google Scholar

⁶ EULEX Kosovo's “customs component” is beyond the scope of this article.Google Scholar

⁷ See also R. Dawn, Civilian Tasks and Capabilities in EU Operations in A Human Security Doctrine for Europe. Project, Principles, Practicalities 266 (M. Glasius & M. Kaldor eds., Routledge 2006)(providing concrete examples).Google Scholar

⁸ In particular EUJUST THEMIS in Georgia (2004–2005) and the AMM Monitoring Mission in Aceh/Indonesia (2005–2006). The two Security Sector Reform missions in Congo (EUSEC RD Congo) and Guinea Bissau (EU SSR Guinea Bissau) on the other hand integrate elements of both a military and a civilian operation.Google Scholar

⁹ European Council, Presidency Conclusions, June 2000.Google Scholar

¹⁰ The fourth, and most contested area for civilian crisis management, is civil protection.Google Scholar

¹¹ The term is misleading in view of the phase of the conflict during which most EU missions are deployed. For a similar argumentation with additional semantic clarifications in this respect, see S. Blockmans and R. A. Wessel, The European Union and Crisis Management: Will the Lisbon Treaty Make the EU More Effective? 14 Journal of Conflict and Security Law 265, at 269 (2009). “Civilian crisis management” is a term particular to the EU and without parallel in the lexicons of the UN, the OSCE or non-European regional organisations. It potentially denotes any non-military policy or instrument directed at the management of crises. See Dawn, supra note 7, at 264. The author argues that civilian crisis management lies at the core of a human-security-based approach to global security, and that it is an area in which the EU can make a distinct contribution to global security, reflecting the principles and values it seeks to promote. See M. Glasius & M. Kaldor, A Human Security Vision for Europe and Beyond in A Human Security Doctrine for Europe. Project, Principles, Practicalities (M. Glasius & M. Kaldor eds., Routledge 2006)(providing more information on the notion of human security)Google Scholar

¹² The notions of “Security Sector Reform” and “Security System Reform” have increasingly become buzzwords among international donors involved in post-conflict reconstruction but have only fairly recently been adopted into the EU's external relations discourse alongside the acknowledgment that the “transformation of security institutions so that they play an effective, legitimate and democratically accountable role in providing external and internal security is an essential prerequisite for long-term stability and prosperity of a country”. Clingendael Institute, Towards a Better Practice Framework in SSR: Broadening the Debate, International Alert Occasional Paper (2002). See A. Bailes, Introduction: The EU and Security Sector Reform, in The European Union and Security Sector Reform (P. Fluri & D. Spence eds., Harper 2008)(providing an overview over the evolution of the concept). The security institutions referred to are those “which have authority to use, or to order the use of force, or threat of force, to protect the state and its citizen, as well as those civil structures that are responsible for their management or oversight.” D. Blease, NATO and the EU within the Western Balkans: Partners or Rivals in Security Sector Reform?, Paper presented at UACES conference (2007)(on file with the author). The concept of transformation and reform of this system is correspondingly large. Yet, it is used by the OECD-DAC on which both the Council (Secretariat) and the European Commission in their respective concept papers on SSR draw upon. See Development Assistance Committee (DAC), Security System Reform and Governance, Policy and Practice in Guidelines and Reference Series (OECD 2004); see also European Commission, A Concept for European Community Support for Security System Reform, COM (2006) 253 final (24 May 2006); Council of the European Union, EU Concept for ESDP Support to Security Sector Reform (SSR), (13 Oct. 2005).Google Scholar

¹³ In practice, post-conflict peacebuilding emerged out of the second generation of UN peace-keeping operations. The notion “post-conflict peacebuilding” was then coined by the United Nations Secretary-General (UNSG) in a 1992 Report, entitled “An Agenda for Peace.” The UNSG had been called upon by the United Nations Security Council to present recommendations on ways of strengthening “the capacity of the United Nations for preventive diplomacy, for peacemaking and for peace-keeping.” The Secretary-General, An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peacekeeping, U.N. Doc. A/47/277 – S/24111, (17 June 1992).Google Scholar

¹⁴ Article 43 of the Treaty on European Union refers to “joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation.” See Consolidated Version of the Treaty on European Union, 2008 O.J. (C 115) (9 May 2008). It is added that “[a]ll these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.” Id. Google Scholar

¹⁵ In addition, the potential of the European Union as a stability actor reaches well beyond its CSDP missions. The pre-accession strategies in the context of enlargement are intended to be an important stabilizing factor, as reflected in the policy framework “Stabilisation and Association Process” within which the “anchoring in European structures” of the Western Balkans is spelled out. Ideally, as it is the case in Kosovo, the CSDP mission's working towards “internationally recognized standards and European best practices” functions hand in hand with financial and technical assistance provided on the basis of external assistance instruments, such as the Instrument for Pre-accession which is the relevant instrument in the present context.Google Scholar

¹⁶ See Dawn, supra note 7. Nonetheless, the generic EU Crisis Management Concept, a document elaborated by the EU Military Staff, proved the main guide for these early missions.Google Scholar

¹⁷ See European Council, EU Comprehensive Concept for Strengthening of Local Police Missions, Council Doc. 9535/02 (31 May 2002).Google Scholar

¹⁸ Id. Google Scholar

¹⁹ Recommendation of the Committee of Ministers of the Council of Europe to the member states on the European Code of Police Ethics, REC (2001) 10 (adopted 19 September 2001) available at www.coe.int. This EU Comprehensive Concept also contains a brief presentation of the concept of “substituting for local police forces” for which the main reference document is not de-classified. Thus, “notably where local structures are failing, the main task of the EU police forces, which should be deployed as early as possible, is to contribute to restoring public security as in keeping order, protect people and property.” This is said to mean “tackling violence, reducing tension and defusing disputes of all kinds, by facilitating the reactivation of judicial and penal facilities.” The document also proposes general guidelines and recommendations for the planning of the three main types of strengthening missions, namely strengthening by first organization and restructuring, second training and selection, and third monitoring and mentoring. It is furthermore emphasized that the success of “this type of mission lies in the disposition of the local authorities to be fully involved from the beginning in the achievement of the objectives.” According to the EULEX Head of Police, the EU Comprehensive Concept for Strengthening of Local Police Missions is in the process of being updated (Interview Pristina, September 2009).Google Scholar

²⁰ See Factsheet EUPM of April 2010 (listing 92 International Police Officers, 30 international civilian staff and 157 local staff) available at www.consilium.europa.eu.Google Scholar

²¹ Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission, 2002 O.J. (L 70) (13 March 2002). EUPM I operated between 1 January 2003 and 12 December 2005. The UN SC Resolution 1396 of 5 March 2002 had specifically welcomed the Union's decision in that respect.Google Scholar

²² See T. Mühlmann, The Police Mission EUPM in Bosnia, 2003 – 2005, in European Security and Defence Policy—An Implementation Perspective (M. Ostrauskaité and R. Merlingen eds., Routledge, 2008). The European Community has provided funding for training and equipment.Google Scholar

²³ Interestingly, the IPTF initially also had a non-executive advising and training role and only subsequently received a limited executive mandate. See Security Council, Report of the United Nations Secretary-General on the United Nations Mission in Bosnia and Herzegovina, U.N. Doc. S/2002/1314 (2 December 2002) (providing a full report on the work of the IPTF)Google Scholar

²⁴ See Council Joint Action 2005/824/CFSP of 24 November 2005 on the European Union Police Mission in Bosnia and Herzegovina, 2005 O.J. (L 307) (25 Nov. 2005). This mission was extended until December 2009 by Council Joint Action 2007/749/CFSP of 19 November 2007 on the European Union Police Mission in Bosnia and Herzegovina, 2007 O.J. (L 303) (21 Nov. 2007).Google Scholar

²⁵ This corresponded to a threat assessment by the international community, not shared by the local population. See M. Merlingen & R. Ostrauskaité, ESDP Police Missions: Meaning, Context and Operational Challenges, 10 European Foreign Affairs Review 229 (2005).Google Scholar

²⁶ See C. Mace, ESDP Goes Live: The EU Police Mission in Bosnia and Herzegovina, 16 European Security Review 4 (2003).Google Scholar

²⁷ See Annex to Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission to Bosnia and Herzegovina, 2002 O.J. (L 70) (13 March 2002) (providing details of the EUPM mandate).Google Scholar

²⁸ See A. Juncos, Bosnia and Herzegovina: A testing Ground for the ESDP? 4 CFSP Forum 6 (2006).Google Scholar

²⁹ Council Joint Action 2005/824/CFSP of 24 November 2005 on the European Union Police Mission in Bosnia and Herzegovina, art. 2, 2005 O.J. (L 307) (25 Nov. 2005).Google Scholar

³⁰ Council Decision 2009/906/CFSP of 8 December 2009 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH), 2009 O.J. (L 322) (9 Dec. 2009).Google Scholar

³¹ See Council Joint Action 2003/681/CFSP of 29 September 2003 on the European Union Police Mission in the Former Yugoslav Republic of Macedonia, 2003 O.J. (L 249) (1 Oct. 2003)(extended by Council Joint Action 2004/789/CFSP of 22 November 2004 on the extension of the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL Proxima), 2004 O.J. (L 348) (24 Nov. 2004)). The latter refocused the training on the middle and senior levels of management.Google Scholar

³² See Council Joint Action 2005/826/CFSP of 24 November 2005 on the establishment of an EU Police Advisory Team (EUPAT) in the Former Yugoslav Republic of Macedonia (fYROM), 2005 O.J. (L 307) (25 Nov. 2005).Google Scholar

³³ Council Joint Action 2005/826/CFSP of 24 November 2005 on the establishment of an EU Police Advisory Team (EUPAT) in the Former Yugoslav Republic of Macedonia (fYROM), preamble, point 8, 2005 O.J. (L 307) (25 Nov. 2005).Google Scholar

³⁴ See Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina, 2004 O.J. (L 252) (28 July 2004).Google Scholar

³⁵ S.C. Res. 1244, U.N. Doc. S/RES/1244 (10 June 1999); see also UNMIK Regulation 1999/1 (providing in its Section 1.1. that “[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary-General”), available at www.unmikonline.org.Google Scholar

³⁶ S.C. Res. 1244, para. 10, U.N. Doc. S/RES/1244 (10 June 1999).Google Scholar

³⁷ Constitutional Framework for Provision of Self-Government, UNMIK/REG/2001/9 (15 May 2001)(amended by UNMIK Regulations UNMIK/REG/2002/9 of 3 May 2002 and UNMIK/REG/2007/29 of 4 October 2002).Google Scholar

³⁸ S.C. Res. 1244, para. 11(i), U.N. Doc. S/RES/1244 (10 June 1999).Google Scholar

³⁹ Formally, ultimate authority for all areas remained with the Special Representative of the Secretary General (SRSG) according to Chapter 12 of the Constitutional Framework. See also Constitutional Framework, preamble, (“the exercise of the responsibilities of the [PISG in Kosovo] shall not in any way affect or diminish the ultimate authority of the SRSG for the implementation of UNSCR 1244(1999)”).Google Scholar

⁴⁰ K. Eide, A special review of the situation in Kosovo, UN Doc. S/2005/635, at 40 (annexed to the Letter dated 7 October 2005 from the United Nations Secretary-General to the United Nations Security Council).Google Scholar

⁴¹ The Secretary-General, Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S/2007/168, (annexed to Letter dated 26 March 2007 from the United Nations Secretary-General to the President of the Security Council)[hereinafter Comprehensive Proposal].Google Scholar

⁴² Id. at Annex IX, art. 2, point 2.3.Google Scholar

⁴³ Id. at Annex IX, art. 2, point 2.3., lit a, b and c.Google Scholar

⁴⁴ Id. at Annex IX, art. 2, point 2.3., lit c.Google Scholar

⁴⁵ Id. at Annex IX, art. 2, point 2.3., lit g.Google Scholar

⁴⁶ Id. at Annex IX, art. 2, point 2.3., lit c.Google Scholar

⁴⁷ G. Gurra, The Impact of International Presence on Development of Criminal Law in Post-War Kosovo: Challenges of a (Missing) Cooperation between Kosovar and International Judges (forthcoming 2009)(paper on file with the author).Google Scholar

⁴⁸ Comprehensive Proposal, supra note 41, at Annex IX, art. 2, point 2.3, lit c.Google Scholar

⁴⁹ After the prima facie non-endorsement of the Ahtisaari Plan by the UNSCl, so-called Troika negotiations were started as a last resort to reach a negotiated final political settlement. See B. Knoll, Kosovo's Endgame and Its Wider Implications in Public International Law, 18 Finnish Yearbook of International Law 153 (2007).Google Scholar

⁵⁰ Council Joint Action 2006/304/CFSP of 10 April 2006 on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas, 2006 O.J. (L 112) (26 April 2006); and Council Joint Action 2007/778/CFSP of 29 November 2007 amending and extending Joint Action 2006/304/CFSP on the establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis management operation in the field of rule of law and possible other areas in Kosovo, 2007 O.J. (L 312) (30 Nov. 2007).Google Scholar

⁵¹ European Council, Presidency Conclusions, Council Doc. 16616/1/07 REV1, (Dec. 2007).Google Scholar

⁵² Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX Kosovo, 2008 O.J. (L 42) (16 Feb. 2008).Google Scholar

⁵³ Towards the end of 2007, it became apparent that the EU member states would not find a common position on the eventual declaration of independence by Kosovo's Assembly, and that several EU member states were reluctant to support the implementation of the Ahtisaari Plan without express endorsement by the UN Security Council. Indeed, after the declaration of independence on 17 February 2008, the Council had to content itself to “note that Member States will decide, in accordance with national practice and international law, on their relations with Kosovo” and to welcome “the continued presence of the international community based on UN Security Council resolution 1244.” See Council of the European Union, Council Conclusions on Kosovo, External Relations Council Meeting, Council Doc. 6496/08 (18 Feb. 2008)(providing a full text of the statement adopted after the declaration of independence); See also NATO North Atlantic Council, Press Release (18 Feb. 2008)(“Following Kosovo's declaration of independence yesterday, NATO reaffirms that KFOR shall remain in Kosovo on the basis of UNSCR 1244, as agreed by Foreign Ministers in December 2007, unless the UN Security Council decides otherwise”) available at www.nato.int/docu/pr/2008/p08-025e.html (last accessed in June 2010).Google Scholar

Therefore, the adoption of the mission's legal basis had to be accelerated. It was in fact adopted by written procedure, and under “constructive” abstention on the basis of former Article 23 (1) TEU by Cyprus arguing “for an explicit decision of the UN Security Council for the EU mission in Kosovo.” See Council Secretariat, Council Doc. CM 448/08 of 4 February 2008, point 2 (available upon request from the Council Document Registry)(document on file with the author).Google Scholar

⁵⁴ Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2009/149 (17 July 2008)(providing the policy areas dealt with by this “package of laws”).Google Scholar

⁵⁵ The Ahtisaari “Comprehensive Proposal” had called for the immediate convening of a constitutional commission to draft a constitution for Kosovo, for the approval of this constitution within 120 days and its subsequent entry into force. Accordingly, the Kosovo Constitution is said to have entered into force on the 15 June 2008. At the same time it was foreseen in the Ahtisaari Plan that, after this 120-day transition period, “all legislative and executive authority vested in UNMIK [should] be transferred en bloc to the governing authorities of Kosovo, unless otherwise provided for in this Settlement”. Comprehensive Proposal, supra note 41, art. 15, point 15.1.Google Scholar

⁵⁶ According to the declaration of independence, “Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan.” Kosovo Declaration of Independence (17 Feb. 2008) available at www.assembly-kosova.org. The final provisions of the Constitution of Kosovo provide that “[a]ll authorities in the Republic of Kosovo shall abide by all of the Republic of Kosovo's obligations under the Comprehensive Proposal for the Kosovo Status Settlement dated 26 March 2007. They shall take all necessary actions for their implementation.” Kosovo Constitution, art. 143, available at www.kushtetutakosoves.info/repository/docs.Google Scholar

⁵⁷ Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141 (22 July 2010) available at www.icj-cij.org. It can be considered implied in the Court's argumentation that both UNSC Resolution 1244 (1999) and the Constitutional Framework are in force as of today. See id., at para. 91. (“The Court notes that Security Council resolution 1244 (1999) and the Constitutional Framework were still in force and applicable as at 17 February 2008. Paragraph 19 of Security Council resolution 1244 (1999) expressly provides that the international civil and security presences are established for an initial period of 12 months, to continue thereafter unless the Security Council decides otherwise”). No decision amending resolution 1244 (1999) was taken by the Security Council at its meeting held on 18 February 2008, when the declaration of independence was discussed for the first time, or at any subsequent meetings. The Presidential Statement of 26 November 2008 merely “welcome[d] the cooperation between the UN and other international actors, within the framework of Security Council resolution 1244 (1999).” Presidential Statement, S/PRST/2008/44 (26 Nov. 2008). In addition, pursuant to paragraph 21 of Security Council resolution 1244 (1999), the Security Council decided “to remain actively seized of the matter” and maintained the item […] on its agenda.”).Google Scholar

⁵⁸ Independent of whether or not the authors of the declaration of independence acted, or intended to act, in the “capacity of an institution created by and empowered to act within that legal order”, i.e., the PISG, it is doubtful, already in pure logical terms, that there was in fact no intention for this declaration to “take effect within the legal order created for the interim phase, nor [that it was] capable for doing so”. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, para. 105, 2010 I.C.J. 141 (22 July 2010).Google Scholar

⁵⁹ See Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, Annex I, S/2008/692 (24 November 2008).Google Scholar

⁶⁰ Other factors for the mission's slow deployment played a role too, such as for instance the EU procurement rules. As EULEX is financed under a CFSP/CSDP budget line, the regular (and therefore oftentimes cumbersome) EU procurement rules apply.Google Scholar

⁶¹ Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 23, S/2008/692 (24 November 2008).Google Scholar

⁶² The mission was initially foreseen to be much smaller. However, throughout the preparatory phase, numbers had been constantly revised upwards to finally reach a level similar to UNMIK, namely roughly 2400. See Koeth, W., State Building Without a State: The EU's Dilemma in Defining Its Relations with Kosovo 15 European Foreign Affairs Review 237 (2010). In fact, as of January 2009, there were 2364 staff members, out of which 1642 were international staff and 722 were local staff, allocated over the “police component,” the “justice component” (therein, 70 for the prison system, 40 judges and 20 prosecutors), and the relatively small “customs component” (27). See Security Council, Report of the SG/HR-CFSP to the UNSG on the activities of the European Union Rule of Law Mission in Kosovo, in Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, Annex I, 4, S/2009/149 (17 March 2009).Google Scholar

⁶³ The “Six-point plan” represents in essence “arrangements” for the governance of the Serb majority areas in Kosovo in six sensitive and contentious areas, namely police, courts, customs, boundaries, Serbian patrimony and transportation and infrastructure. See Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2008/692 (24 Nov. 2008).Google Scholar

⁶⁴ Reaching “full operational capability” had required a number of further practical steps, inter alia, to ensure the transfer of investigation files and court cases. See Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 12–13, S/2008/692 (24 Nov. 2008).Google Scholar

⁶⁵ Statement by the President of the Security Council, UN Doc. S/PRST/2008/44 (26 Nov. 2008).Google Scholar

⁶⁶ See Koeth, supra note 62, at 236.Google Scholar

⁶⁷ In the absence of an explicit invitation by the UN Security Council, the international legal basis for the EU mission can be constructed in various ways. Possible arguments in this respect involve, inter alia, considerations on the delegation powers of the UN Secretary General who was authorized under UNSC Resolution 1244 (1999) to “establish an international civil presence with the assistance of relevant international organizations.” There is also the possibility of an ex post facto invitation by the UNSC through the November 2008 Presidential Statement. See E. de Wet, The Governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of EULEX, The American Journal of International Law 103 (2009)(discussing the international legal basis for EULEX Kosovo); E. Milano, Il trasferimento di funzioni da UNMIK a EULEX in Kosovo, Rivista di Diritto Internazionale 91 (2008)(discussing, inter alia, the international legal basis for EULEX Kosovo); R. Muharremi, The European Union Rule of Law Mission in Kosovo (EULEX) from the Perspective of Kosovo Constitutional Law, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 70 (2010)(discussing, inter alia, the international legal basis for EULEX Kosovo).Google Scholar

⁶⁸ The legal question submitted for the Court's consideration was drafted in the “narrow and specific” terms of whether the unilateral declaration of independence [hereafter DOI] by the Provisional Institutions of Self-Government of Kosovo was in accordance with international law. According to the Court “[i]t [therefore] does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.” On the basis of the ICJ's opinion, it can only be stated that the invitation of a “European Union-led rule of law mission” contained in para. 5 of the DOI was not issued by the PISG, but by “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.” This does not, however, per se allow for the conclusion that this invitation cannot have legal significance for EULEX's international legal basis. See supra note 63 and accompanying text.Google Scholar

⁶⁹ See Koeth, supra note 62, at 236.Google Scholar

⁷⁰ On the one hand, there is the Kosovo Constitution which not only seeks to implement the Ahtisaari “Comprehensive Proposal” but also declares it to take precedence over all other legal provisions including the constitution itself and to prevail in case of legal conflict. See Kosovo Constitution, art. 143, paras. 2–3. On the other hand, Resolution 1244 (1999) and the Constitutional Framework promulgated in 2001 formally remain in force.Google Scholar

⁷¹ See Statement by the President of the Security Council, U.N. Doc. S/PRST/2008/44, (26 Nov. 2008).Google Scholar

⁷² According to Chapter 9 of the Constitutional Framework, the Kosovo Assembly has the responsibility to “adopt laws and resolutions in the areas of responsibility of the Provisional Institutions of Self-Government as set out in Chapter 5; […] The President shall sign each law adopted by the Assembly and forward it to the SRSG for promulgation; Laws shall become effective on the day of their promulgation by the SRSG, unless otherwise specified.” Constitutional Framework for Provision of Self-Government, points 9.1.26 (a), 9.1.44 and 9.1.45, UNMIK/REG/2001/9 (15 May 2001). Indeed, all legislation whether adopted by the Kosovo Assembly according to its powers under Chapter 5 and 9 of the Constitutional Framework or enacted on the basis of the reserved powers of the SRSG based on Chapter 8 of the Constitutional Framework have been promulgated by the SRSG and published in the UNMIK Official Gazette. See www.unmikonline.org. This practice continued until 14 June 2008, the day before the Kosovo Constitution is said to have entered into force. Ambiguously, the EULEX Kosovo website merely lists the Assembly law on EULEX jurisdiction as “law approved by the Assembly of Kosovo and published in the official gazette [i.e. not UNMIK's gazette] after 1 June 2008”.Google Scholar

⁷³ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 2, 2008 O.J. (L 42) (16 Feb. 2008). The initial duration of the mission covered the period until June 2010. See Council Decision 2010/322/CFSP of 8 June 2010 amending and extending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, 2010 O.J. (L 145)(11 June 2010) (providing for the extension of the mission until June 2012).Google Scholar

⁷⁴ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 6, 2008 O.J. (L 42) (16 Feb. 2008). In the “justice component,” outputs of operations are foreseen for five subsectors: namely, judges in the civil field, judges and prosecutors in the criminal field, judicial experts (or judges) in the Kosovo Ministry of Justice, the Kosovo Judicial Council and the Kosovo Correctional Service. The output-structure for the “police component,” on the other hand, reflects the organizational structure of the Kosovo Police Service: namely, Border (113 staff members), Operations (170 staff members), Crime (120 staff members) and Administration (25 staff members). See EULEX Programme Strategy, available at www.eulex-kosovo.eu. The high level of officers in KP Crime can be explained by the fact that it is judged “possibly the most critical area of strengthening in terms of the overall aims and objectives of the EULEX mandate.” EULEX Programme Strategy, www.eulex-kosovo.eu. Indeed—and that is revealing—UNMIK retained control for investigating and analysing serious crimes, organized crime and drug and human trafficking until the summer of 2008. The eventual transfer was poorly planned and chaotic. See International Crisis Group, The Rule of Law in independent Kosovo, 204 Europe Report 8 (2010). However, for the implementation of the mission on the ground, the distinction between the Police Executive Department (PED), the Police Strengthening Department (PSD) and the Special Police Units (SPU) is more important. See below.Google Scholar

⁷⁵ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 3, lit. d, e and f, 2008 O.J. (L 42)(16 Feb. 2008).Google Scholar

⁷⁶ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 3, lit. h, 2008 O.J. (L 42)(16 Feb. 2008).Google Scholar

⁷⁷ Interview with a former EUPT staff member, Pristina (Sept. 2009).Google Scholar

⁷⁸ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 3, lit. a, 2008 O.J. (L 42) (16 Feb. 2008).Google Scholar

⁷⁹ This is also expressed in an EULEX spokesperson's formulation of “strengthening and not substituting” by which the implementation of the mission is supposed to be guided. Interview, Brussels (Oct. 2008). Yet, and this will be demonstrated further below, the imperatives on the ground and the importance of the executive functions of the mission caused the reality to diverge from the official initial discourse and the emphasis in the Council Joint Action. This holds true for both the police and the justice component.Google Scholar

⁸⁰ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 3, lit. b, 2008 O.J. (L 42) (16 Feb. 2008). While the English language version is ambiguous as to whether this consultation with the relevant international civilian authorities is compulsory or discretionary for EULEX, the German language version makes it clear that the annulment of such decisions requires prior consultation. To add to the confusion, the French language version on the other hand seems to suggest that this consultation is discretionary, i.e. only has to take place if considered necessary. “Operational decisions” have to be understood as opposed to “political decisions.” Interview with a former EUPT staff member, Pristina (Sept. 2009) (explaining the notion of “operational decisions”).Google Scholar

⁸¹ Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, 21, S/2008/692 (24 Nov. 2008). See id., at 21: “While my Special Representative is still formally vested with executive authority under resolution 1244(1999), he is unable to enforce this authority. In reality, such authority can be exercised only if and when it is accepted as the basis for decisions by my Special Representative. Therefore, very few executive decisions have been issued by my Special Representative since 15 June [2008].”Google Scholar

⁸² Incoherently, this is listed under the “tasks” of the Joint Action. See EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, Article 3, lit. I, 2008 O.J. (L 42) (16 Feb. 2008).Google Scholar

⁸³ Interview, Pristina (Sept. 2009). The Human Rights and Gender Office (HRGO) is entrusted with the implementation of this provision. As a purely internal office, it has an advisory role. It is to be distinguished from the Human Rights Review Panel (see infra).Google Scholar

⁸⁴ See EULEX Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar

⁸⁵ See id. Google Scholar

⁸⁶ See id. Google Scholar

⁸⁷ See id. Google Scholar

⁸⁸ See id. Google Scholar

⁸⁹ See id. Google Scholar

⁹⁰ See id. Google Scholar

⁹¹ The previous involvement of the international community in this sector has been considered as extremely reactive to the immediate necessities on the ground, lacking strategic over- and foresight.Google Scholar

⁹² “In order to ensure overall strategic coordination of efforts between the authorities in Kosovo (including the ministers of Justice, Internal Affairs, Economy and Finance) and EULEX, the Joint Rule of Law Coordination Board, to be co-chaired by the local authorities and the EULEX Head of Mission, has been established.” Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, Annex I, S/2009/149, (17 March 2009); Security Council, Report of the SG/HR for CFSP to the UNSG on the activities of the European Union Rule of Law Mission in Kosovo, 5.Google Scholar

⁹³ Interview, Pristina (Sept. 2009).Google Scholar

⁹⁴ See EULEX July 2009 Report, available at www.eulex-kosovo.eu.Google Scholar

⁹⁵ This had also been suggested for UNMIK's programme, but was then quasi-inexistent. See D. Marshall and S. Inglis, The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo, 16 Harvard Human Rights Journal 95 (2003).Google Scholar

⁹⁶ This expression is an adaptation of UNMIK's “standards before status” policy endorsed by the UN Security Council in 2003. The “standards” or reform goals built on earlier UNMIK benchmarking efforts and meant to serve as a reform incentive by linking the beginning of negotiations on Kosovo's final status with Kosovo's reform achievements. This process however had a number of flaws in its incentive structure. See M. Karnitschnigg, The United Nations and the European Union in Kosovo—the Challenges of Joint Nation-Building, in The United Nations and the European Union (J. Wouters et al. eds., T.M.C. Asser Press 2006).Google Scholar

⁹⁷ See EULEX Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar

⁹⁸ See id. Google Scholar

⁹⁹ Id. Google Scholar

¹⁰⁰ See id. Google Scholar

¹⁰¹ See id. Google Scholar

¹⁰² Interview, Pristina (Sept. 2009).Google Scholar

¹⁰³ The concept of multi-ethnicity is particularly complex and thus kept at an even more abstract level. Clearly an imperative due to the local post-conflict environment, it may not only be interpreted in various ways, but in addition is extremely difficult to relate to European best practices or a common denominator.Google Scholar

¹⁰⁴ EULEX Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar

¹⁰⁵ EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 3 and Part D, 2008 O.J. (L 42) (16 Feb. 2008).Google Scholar

¹⁰⁶ EULEX Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar

¹⁰⁷ Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, Law No. 03/L-053, available at www.eulex-kosovo.eu. According to its Article 1, this law “regulates the integration and jurisdiction of the Eulex judges and prosecutors in the judicial and prosecutorial system of the Republic of Kosovo.” Its content has been closely coordinated with the international community, including, most importantly, EUPT.Google Scholar

¹⁰⁸ The following lines focus on the judiciary rather than on the executive and non-executive functions of the prosecution for which however the same principles apply. In essence, the EULEX prosecutors have competence to conduct new and pending criminal investigations and to prosecute new and pending criminal cases in the municipal and district offices as well as at the Special Prosecution Office, either in cooperation with national colleagues or alone. The monitoring, mentoring and advising of local prosecutors is independent of the jurisdiction of the EULEX prosecutors and exercised in accordance with the modalities established by the Assembly of EULEX Prosecutors.Google Scholar

¹⁰⁹ Exceptionally, EULEX district court judges can also have jurisdiction for cases dealt with at municipal court level if the President of the Assembly of EULEX judges decides to assign such a case to EULEX in accordance with the modalities on case selection and case allocation. See Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, art. 3.4 and 5, Law No. 03/L-053.Google Scholar

¹¹⁰ Here, processing the case files inherited from UNMIK has been a priority. The two major categories of cases transferred to EULEX judges at the supreme court and district court levels relate to war crimes against the civilian population committed during the 1998–1999 war and crimes committed during the unrest which took place in March 2004. See EULEX Kosovo, Annual Report on the judicial activities of EULEX judges 2009 (providing summaries of cases in which EULEX judges have been involved) available at www.eulex-kosovo.org (last accessed in June 2010).Google Scholar

¹¹¹ Law on the Special Prosecution Office of the Republic of Kosovo, art. 5, Law No. 03/L-052, available at www.eulex-kosovo.eu.Google Scholar

¹¹² Official Gazette of the Socialist Federal Republic of Yugoslavia No. 44/76 (amended).Google Scholar

¹¹³ In March 2009, the office of the President of the Assembly of EULEX judges issued standard operating procedures (SOPs) detailing the prerequisites and the procedure to be followed when taking over a criminal or a civil case. See EULEX Kosovo, Annual Report on the judicial activities of EULEX judges 2009, 28, available at www.eulex-kosovo.org (accessed in June 2010).Google Scholar

¹¹⁴ See Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, art. 3.5, Law No. 03/L-053.Google Scholar

¹¹⁵ During the initial deployment phase, when the Northern Mitrovica Court in the majority Serb populated areas remained closed as of March 2008, EULEX had to use the Vushtrri Court to which the EULEX judges were escorted back and forth on the day of scheduled proceedings. Today, the EULEX staff assigned to the Mitrovica Court consists of two criminal judges, two prosecutors, two civil judges and three legal officers. The court is operational, but there are no mixed panels. See OSCE—Department of Human Rights and Communities, The Mitrovicë/Mitrovica Justice System: status update and continuing human rights concerns (February 2010) available at www.osce.org (last accessed in June 2010).Google Scholar

¹¹⁶ Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, art. 3 (7), Law No. 03/L-053Google Scholar

¹¹⁷ Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, art. 4, Law No. 03/L-053.Google Scholar

¹¹⁸ De facto, war crimes against Serbs or involving Serbian citizens and interethnic crimes are mostly dealt with by such panels. Interview, Pristina (Sept. 2009).Google Scholar

¹¹⁹ Law on the jurisdiction, case selection and case allocation of EULEX judges and prosecutors in Kosovo, art. 5, Law No. 03/L-053.Google Scholar

¹²⁰ The Special Chamber of the Supreme Court of Kosovo on KTA Related Matters (SCSC) was founded by UNMIK in 2003 in order to provide for an independent control mechanism for the privatization process in Kosovo carried out by the Kosovo Trust Agency. After having been redesigned and expanded in early 2009, it now includes a total of 43 EULEX judges. As many of the cases that fall within the scope of the SCSC's jurisdiction are conflict-related cases and/or involve organized crime, continued international involvement is deemed necessary. The EULEX judges in the SCSC differ from other EULEX judges insofar as they are not engaged in MMA activities at all. See EULEX Kosovo, Annual Report on the judicial activities of EULEX judges 2009, 43 and 44, available at www.eulex-kosovo.org (last accessed June 2010).Google Scholar

¹²¹ As many cases had been frozen according to an only recently repealed UNMIK regulation, the civil domain suffers from an immense backlog of cases. They are property cases filed by Kosovo Serbs who fled in 1999 (see jurisdiction of the Special Chamber of the Kosovo Protection Agency) and compensation claims by Serbs against local municipalities for failure to protect their property during the events of 1999. Further cases which require the involvement of EULEX are compensation claims filed by Kosovo Albanians against the Serbian government for destruction of property by the fleeing Serbs in 1999. Other concerns are, as generally, the lack of independence, ineffectiveness and the slowness of proceedings. There is also a huge ethnic bias at the level of execution of judgments, for instance the registration of the property into the designated registry. See also EULEX Kosovo, Annual Report on the judicial activities of EULEX judges 2009, 34, available at www.eulex-kosovo.org (last accessed June 2010).Google Scholar

¹²² See Regulation on the establishment of the Kosovo Judicial Council (KJC), Regulation No. 2005/52, UNMIK/REG/2005/52 of 20 Dec. 2005 (20 Dec. 2005). For resolving first-instance issues of alleged misconduct of judges and lay-judges, the establishment of a Judicial Disciplinary Committee was foreseen (Section 7). As of September 2009, this Committee was however not yet operational. The judicial councils are self-regulatory bodies of the judiciary which—in order to combat a possibly corrupt executive—have been promoted by the Council of Europe and the European Union in the European transition countries.Google Scholar

¹²³ See www.hrrp.eu (the still incomplete website of the panel). Following the appointment of its members, the HRRP held its first planning session in May 2010 during which the rules of procedure were adopted. The panel has been operational since 9 June 2010 but thus far no complaints have been made. See www.zeri.info/artikulli (last accessed on 17 June 2010).Google Scholar

¹²⁴ See Assembly of EULEX Judges, Guidelines on Monitoring, Mentoring and Advising (MMA) of EULEX judges, (final document)(approved on 23 October 2008). Therein, it is also underlined that contrary to the report activities of different other local and international institutions and organizations, the MMA reports of the EULEX judges are intended to be of an entirely internal nature.Google Scholar

¹²⁵ See EULEX Kosovo, Programme Report 2010, available at www.eulex-kosovo.org (last accessed June 2010).Google Scholar

¹²⁶ Interview, Pristina (Sept. 2009). These recommendations are as a general rule directed to the Kosovo Judicial Council. While two international members (one EULEX judge and one EULEX prosecutor) have been serving on the KJC since mid-2009, it was completed in February 2010 with 3 members of the local judiciary and only then could start to focus on the long-term needs of the organization of the judiciary, leading to a considerable delay in tackling these important issues. It has accepted and largely implemented EULEX's action on the case allocation system. See EULEX Kosovo, Programme Report 2010, available at www.eulex-kosovo.org (last accessed June 2010).Google Scholar

¹²⁷ The war crimes related criminal case against the “Llapi Group” which was tried by a mixed panel at the district court of Pristina and where a member of the Kosovo government was amongst the defendants, and the trial against Albin Kurti, the leader of the Kosovo civil society movement Vetevendosje (Self-Determination), provide telling examples for political interference and obstruction of justice at all levels. See EULEX Kosovo, Programme Report 2010, available at www.eulex-kosovo.org, (last accessed June 2010).Google Scholar

¹²⁸ In 2001 for instance, the Provisional Criminal Procedure Code and the Provisional Criminal Code went through an extensive consultative process among local and regional actors, prior to final consolidation by UNMIK's Office for Legal Affairs. However, and without explanation to the local legal community for the delay, they were eventually promulgated only in 2004. This had caused much criticism.Google Scholar

¹²⁹ The implementation of this advising activity would call for a comparison to the twinning method and requires further elaboration under a capacity-building aspect. Again, this is envisaged to be dealt with in a follow-up paper.Google Scholar

¹³⁰ Security Council, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2009/149 (17 March 2009).Google Scholar

¹³¹ See EULEX, July 2009 Report, available at www.eulex-kosovo.eu.Google Scholar

¹³² Security Council, Report of the SG/HR- CFSP to the UNSG on the activities of the European Union Rule of Law Mission in Kosovo in Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, Annex I, 11, S/2009/149 (17 March 2009).Google Scholar

¹³³ See EULEX, Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar

¹³⁴ See EULEX Kosovo, Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, art. 6 (b), 2008 O.J. (L 42) (16 Feb. 2008) (“a police component, co-located where appropriate with the Kosovo Police Service, including at the border crossing points”).Google Scholar

¹³⁵ Law on Police, Law No. 03/L-052, available at www.eulex-kosovo.eu. The same applies to the EULEX correctional officers.Google Scholar

¹³⁶ It has even been argued that the PED has not reached “full operational capability” as of May 2010. Interview high-ranking PED Official.Google Scholar

¹³⁷ The 2009 EULEX report, for instance, states with respect to Criminal Intelligence capability that “although EULEX experts note that the lack of more sophisticated equipment and technology is not unusual in the context of the Western Balkans, its absence in the KP is a barrier to further development of proactive policing capability. In other words, the mission aim of achieving the level of European best practice will require significant capital investment.” EULEX, July 2009 Report, 35, available at www.eulex-kosovo.eu.Google Scholar

¹³⁸ The only UNMIK police remaining in Kosovo are the eight officers at Interpol. This is necessary until the Interpol Assembly recognizes EULEX as an independent entity. Interview, Pristina (Sept. 2009).Google Scholar

¹³⁹ See M. Merlingen and R. Ostrauskaité, European Union Peacebuilding and Policing: Governance and the European Security and Defence Policy 56 (Routledge 2006). According to these authors, experience shows that co-location restrains police conduct, thus limiting brutality, abuse and bias. It also habituates officers to potentially more effective routines concerning crime case management. They furthermore argue that co-locators in the field should put less emphasis on mentoring and more on open-ended dialogical interaction. Mentoring is said to constitute a mimetic process through which European policing norms and practices are disseminated and which is inscribed in a non-egalitarian relationship.Google Scholar

¹⁴⁰ This however does not, per se, impede a good working relationship and collaboration with the Kosovo Police. In any case, the KP sometimes seems to follow mentors’ advice without further inquiring into the sense of it. For instance, since UNMIK times, the KP has collected data without subsequently using it. Interview, Pristina (Sept. 2009).Google Scholar

¹⁴¹ See EULEX Kosovo, Programme Report 2010 15, available at www.eulex-kosovo.org (last accessed June 2010). This appears to be a fairly modest result even against the backdrop of the difficulty of achieving large-scale organizational change within the course of roughly 20 months. In this respect then, the fact that the KP is becoming a “learning organization” as stated by the 2010 Report is indeed the most significant result. The report furthermore recalls the need to rapidly develop intelligence-led policing as a critical prerequisite to the KP's success which indeed is subject to intensive MMA activity but without much success, as the KP still fails to allocate sufficient resources.Google Scholar

¹⁴² Interview, Brussels (Oct. 2008). Its only reference in the Council Joint Action can be found in Article 6 dealing with the structure of EULEX according to which co-location is implicitly excluded when these units “may be hosted in camps designed to cater for their operational needs.”Google Scholar

¹⁴³ The KFOR MSU is composed almost entirely of a 300-strong Carabinieri regiment from Italy. They are also, inter alia, engaged in the seizure of illegal drugs from transshipment locations and of weapons. Their mandate furthermore includes law enforcement and counterterrorism, mainly in order to fight against organized crime, but ultimately their work involves exclusively riot control.Google Scholar

¹⁴⁴ See Merlingen/Ostrauskaité, supra note 139.Google Scholar

¹⁴⁵ Interview with an involved NATO official, Madrid (Oct. 2008).Google Scholar

¹⁴⁶ Security Council, Report of the SG/HR- CFSP to the UNSG on the activities of the European Union Rule of Law Mission in Kosovo, in Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, Annex I, 11, S/2009/149 (17 March 2009).Google Scholar

¹⁴⁷ Council Doc. 9535/02 (31 May 2002).Google Scholar

¹⁴⁸ Already in 2000 the Brahimi Report called for a doctrinal shift in the use of civilian police and other rule-of-law elements. See G.A., Letters dated 21 August from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Doc. A/55/305 – S/2000/809 (21 Aug. 2000).Google Scholar

¹⁴⁹ Council Joint Action 2009/906/CFSP of 8 December 2009 on the European Union Police Mission in Bosnia and Herzegovina, Article 2, 2009 O.J. (L 322) (9 Dec. 2009).Google Scholar

¹⁵⁰ See Comprehensive Concept on Police Substitution Missions, Council Doc. 8655/02. The document is only available in its few declassified parts.Google Scholar

¹⁵¹ See EULEX, Programme Strategy, available at www.eulex-kosovo.eu.Google Scholar