Laboratory of the International Community? Role of International Organizations in the Re-establishment of the Rule of Law in Kosovo

Abstract

INTRODUCTION (1) Various interventions of an international community in failed states or otherwise unstable territories have showed the crucial importance of the rule of law in re-establishing order in post-conflict societies. The territorial status of the world's newest state, Kosovo, was resolved by its unilateral declaration of independence on February 17, 2008. The current situation in Kosovo brings many points of major legal interest. This paper discusses the roles and goals of international and local organizations and institutions in Kosovo and evaluates their impact upon post-conflict capacity-building efforts. However, the effectiveness of these institutions is undermined by various challenges which erode respect for the rule of law in Kosovo. There are many areas undermining the rule of law efforts, such as organized crime and corruption, serious deficiencies in the justice system (including, inter alia, lack of witness protection), human rights violations, and high unemployment. This paper focuses on two of these areas--organized crime and human rights concerns. First, the legal basis of the European Union Rule of Law Mission (EULEX) and its task in fighting the organized crime will be briefly examined. Second, the role of a newly established Constitutional Court of Kosovo acting also as the final arbiter of the interpretation and application of European Convention on Human Rights (ECHR) will be assessed. The final chapter offers some recommendations for the future since it is argued that most of the challenges which were faced by the United Nations Mission in Kosovo (UNMIK) and North Atlantic Treaty Organization (NATO) still exist in Kosovo. WHAT ROLE DOES THE EULEX MISSION PLAY IN KOSOVO? EULEX is the EU's largest civilian operation ever deployed, both in terms of personnel and budget. (2) In order to strengthen stability in the region, the European Union shall assist Kosovo by means of a European Security and Defence Policy mission. EULEX is a technical rule of law mission which covers three main components: police, customs, and justice. EULEX should assist Kosovo authorities by mentoring, monitoring, and advising while respecting the local ownership. The legal basis for the establishment of EULEX is the Council Joint Action 2008/124/CFSP (Joint Action) supported by all twenty-seven EU member states. In addition to the Joint Action, EULEX is also claiming to be operating under the general framework of UN Security Council Resolution 1244 (1999), (3) which is explicitly mentioned in the Joint Action. One could argue that this is a rather broad interpretation of Resolution 1244. Resolution 1244 was clearly adopted in a different time (1999) and a different context (UNMIK as an international administration, and KFOR as international security force entered Kosovo as the part of Federal Republic of Yugoslavia/Serbia), i.e., in a situation which in no way anticipated the independence of Kosovo. Obviously, there is no reference in Resolution 1244 to EULEX as such. At the same time, the UN Security Council did not replace Resolution 1244; therefore, the legal basis of a new mission from an international law point of view was not clear-cut. This can be illustrated by the fact that the Kosovo authorities have repeatedly stated that Resolution 1244 is no longer relevant and that the institutions of Kosovo have no legal obligation to abide by it. The relationship between and EULEX has often been described as EULEX taking over from UNMIK or replacing UNMIK. However, a change of the legal status of Kosovo has and will continue to have a significant impact on a different role and mandate of EULEX. EULEX is not a successor of UNMIK; accordingly, there was no formal handover. In addition, the issue of the (non)recognition of the independence of Kosovo has an impact on EULEX status and effectiveness in the whole territory of Kosovo, including the parts with the Serbian majority. …