Written evidence from Dr Andrea Lorenzo Capussela (BSD0008)

Introduction: my evidence and its limitations

1. I am grateful for the opportunity of providing my views to the Committee. I do so in a personal capacity.

2. Of the seven questions that have been put to me, I can provide useful evidence only on the first one: To your knowledge, how effective has EULEX Kosovo been to date in achieving its objectives/mandate? I shall nonetheless add a few words on the sixth question (How important would the UK’s ongoing participation/contribution be to the future success of (1) EULEX Kosovo and (2) CSDP missions overall?).

3. The evidence I can provide draws on my own direct experience in Kosovo, where I served in 2008–11 (where I led the economic affairs unit of the International Civilian Office), and on research I conducted in 2011–14 for a book on Kosovo (State-Building in Kosovo: Democracy, Corruption and the EU in the Balkans, London and New York: I.B. Tauris, 2015), and for a long paper that serves as an empirical annex to the book (‘Eulex’s Performance of its Executive Judicial Functions’, 15 February 2015). Consequently, I shall deal only with Eulex’s performance up to the end of 2014. Moreover, I shall focus on Eulex’s performance of its ‘executive’ functions.

4. I would however submit that despite these limitation my evidence might nonetheless be useful to the Committee, for Eulex’s executive functions largely coincide with the very raison d’être of the mission, and the 2008–14 period was that during which its capacity was greater and powers fuller. Indeed, its unsatisfactory performance was one important reason why after 2014 Eulex gradually declined in size and progressively lost its executive powers.

Eulex’s mandate and its executive powers

5. The EU’s overarching aim in deploying Eulex was to assist Kosovo’s rule-of-law institutions to become sustainably accountable, independent, multi-ethnic and free from political interference.[1] To pursue this aim the mission was assigned two main tasks: to ‘monitor, mentor and advise’ such institutions, and to directly exercise certain judicial and police powers.[2]

6. When acting in the latter capacity, Eulex enforced the law upon Kosovo’s citizens in lieu of the domestic police and judicial authorities. And its task, under the Joint Action that governs the mission, was to ‘ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced’.[3]

7. Such executive functions were unprecedented: no other EU mission had ever been granted comparable powers, which had a precedent only in the judicial component of the broader administration mandates of UNMIK and the first UN mission in East Timor. They were also very demanding, as serious crime and impunity were extremely widespread in Kosovo and its law enforcement system was very weak.

8. They were therefore critical for the achievement of Eulex’s overall aims, for the rule of law cannot be strengthened there without significantly reducing serious crime and impunity for it, for both the intrinsic value of crime repression and its demonstration effect. Hence the logical and functional superiority of Eulex’s executive functions over its advisory ones (to wit, capacity building and similar efforts can hardly be effective if the law enforcement officials it is addressed to remain widely exposed, as they were in Kosovo, to the intimidation and the corruption of a powerful criminal elite, with close ties with the political and economic elite of the country: reducing the impunity of this elite is a necessary precondition for achieving progress through capacity building).

Eulex’s resources and broader significance

9. During the first six years of its mandate, before its powers and size began to decline, Eulex was given ample means to implement it: a budget of approximately €125 million per year, on average, and an authorized staff of 3,339.[4] By way of comparison, in early 2008 UNMIK had a budget of roughly €160 million and a staff of about 5,000, which was in charge not just of the rule of law but also of administering Kosovo; and in early 2008 the largest EU mission was that stationed in Bosnia, which had a merely advisory role and a total staff of 450 (one for every 8,000 citizens; for Eulex the ratio was to be 15 times higher, at peak: one for every 545 citizens).

10. At the peak of its strength, in 2009–11, Eulex employed about three times as many officials as the dozen other civilian CSDP mission combined. By reason also of the EU’s involvement in the so-called Belgrade-Pristina dialogue, in which Eulex was also employed, it is only a slight exaggeration to argue that CSDP policy was, in essence, Balkans policy, that the latter was, in essence, Kosovo policy, and that the latter, in turn, boiled largely down to Eulex. Such political investment on Kosovo contributed to explaining the financial and operational investment that was spent on Eulex. In that period the EU staked much of the credibility of its own foreign policy on this mission.

Eulex’s performance of its executive functions: empirical assessment

11. During the first six years of its mandate, Eulex achieved gravely inadequate results in the repression of political corruption and organized crime: averages of 2.5 indictments and 0.7 convictions per year, and 0.3 convictions per indictment. Assuming that those involved in such crimes are as few as 1,600 (ten times the size of the most dangerous criminal network known in Kosovo[5], and equivalent to 0.09 per cent of Kosovo’s population), over the duration of Eulex’s mandate each of them faced a cumulative 0.25 per cent risk of being convicted. Taking a more realistic estimate of 3,000, serious crime becomes an effectively risk-free profession. Such feeble efforts can neither repress serious crime nor deter it, especially in a territory where crime and impunity had been extremely widespread for a decade.

12. The averages indicated above are based on qualitative assessments, admittedly. Eulex frequently underlines the large numbers of indictments and verdicts issued by its judges and prosecutors. Yet among them I sought to identify those that have more than negligible political or economic importance, for either the persons involved or the interests at stake, and limited my analysis to that. The annex to my book (cited at paragraph 3, above) sets out the criteria I used to identify these non-negligible cases (pp. 3–5 of the annex). The nature and outcome of these cases is discussed at length in the annex and summarized in a table at pp. 119–20 of my book. This is the basis for the averages indicated above. To my knowledge, subsequent literature confuted neither those criteria, my assessment of those cases, nor those averages.

Eulex’s performance of its executive functions: other assessments

13. My conclusions find support in the most respected governance indicators that are available for Kosovo and the rest of the region, the Worldwide Governance Indicators published by the World Bank Institute. Over the 2004–14 period, the indicators for ‘rule of law’ and ‘control of corruption’ display some progress up to 2008, and thereafter stagnation or marginal decline; notably, the two indicators followed similar trajectories, increasing their reliability. Even more significantly, after 2008 the dynamic of Kosovo’s indicators was generally worse, sometimes much worse, than its neighbours’: Kosovo already was the worst, or second-worst, in the region in these two fields, and after 2008 the gap that separated it from the other Balkan states widened. These indicators strongly suggest that despite Eulex’s presence, after 2008 the rule of law weakened in Kosovo and corruption became more widespread. Again, I am not aware of serious analyses confuting these indicators.

14. In support for these and my conclusions, I would quote the 2015 report of an independent analyst (the jurist Jean-Paul Jacqué, a former senior EU official), whom the EU asked to review Eulex’s handling of a delicate matter. The report notes that corruption remains ‘omnipresent’ in Kosovo, adding that while Eulex could not have been expected to root it out completely, ‘it should, nevertheless, have been possible to lay the foundations of a system capable of fighting corruption.’ Again, I am not aware of serious analyses confuting this assessment, which I share (whereas I have reservations on Jacqué’s analysis of the causes of Eulex’s bad performance, on which more later).

Eulex’s advisory functions

15. I have not conducted an equally detailed analysis of Eulex’s performance of the other half of its mandate, its advisory functions, nor am I aware of any independent empirically grounded assessment. Yet, even assuming that Eulex did achieve positive results in this field, they are highly unlikely to have translated themselves into concrete improvements of Kosovo’s law enforcement sector. For those results are likely to have been elided by its failure to strengthen either criminal deterrence or the accountability principle: as Kosovo’s judges and prosecutors were (as of 2013) in effect ‘selected by politicians, rather than by an independent panel’, and remained exposed to intimidation, corruption and ‘intense political pressure’, offering capacity-building, training and advice to them can only have achieved negligible improvements.[6] Consistent with this analysis, two studies written in 2012, four years after Eulex began its work, found that ‘political interference of the executive branch in judicial matters is rampant’, and that judges even ‘tend to act in anticipatory obedience to external influences’.[7]

Eulex’s performance: conclusions

16. In short, during the six years while its staff and powers were at peak Eulex neither appreciably repressed or deterred serious crime, nor improved either the rule of law or the reliability of Kosovo’s law enforcement sector.

17. Considering the political, reputational, organizational, and financial investment that the EU made on Eulex, its results undoubtedly harmed the credibility of the Union’s foreign policy and its broader political interests.

18. The effects on Kosovo of Eulex’s failure are harder to assess. In the first instance, it can be argued that the mission merely failed to improve Kosovo’s conditions: that, in other words, Eulex’s failure was neutral to Kosovo’s development prospects.

19. But this conclusion would appear simplistic. For by allowing corruption and organized crime to persist, and arguably rise, Eulex has also harmed the credibility of the criminal repression system. A 2012 analysis attests that in Kosovo ‘[t]here is an overall perception that officeholders can engage in corruption and be immune to prosecution’.[8] In such a country the rule of law could not sustainably be improved without reducing the impunity that political corruption and organized crime enjoyed, for both the intrinsic and the demonstrative value of such prosecutions: sanctioning prominent, high-level cases is necessary to affirm the very supremacy of the law and establish the accountability principle. The passivity exhibited by Eulex has confirmed the apparent sacrosanctity of the criminal elite instead, and it has reinforced what has aptly been called Kosovo’s ‘glass ceiling of accountability’.[9] Indeed, Eulex’s failure to investigate the suspected crimes of the elite provided them with an implicit patent of innocence, which they often invoked. Coupled with the fact that Eulex’s mere presence may have crowded out, and effectively disempowered, other potential opponents of high-level crime, such as public opinion and civil society organizations, these considerations suggest that Eulex’s performance has damaged Kosovo. Even though the depth and scope of the damage seem impossible to assess, it can plausibly be argued that Kosovo would now be in somewhat better conditions had Eulex not been deployed there.

20. This conclusion rests on purely abstract reasoning, and is certainly debatable. But it is worth noting that the only serious alternative is that indicated at paragraph 17: neutrality. I stopped following closely Eulex and Kosovo in 2015, and cannot exclude that Eulex’s performance has since improved (this is not my impression, however, nor have I read serious analyses arguing it). Yet since then the mission has lost part of its staff and many of its powers, such that any improvement in its performance is unlikely to have translated itself into significant concrete achievements.

The causes of Eulex’s underperformance: the allocation of resources

21. It can hardly be argued that Eulex lacked resources. The problem, rather, is that they were allocated irrationally (that is, inconsistently with the rationale of Eulex’s mandate and with Kosovo’s needs). My book conducts a fairly detailed assessment of this topic. My main conclusion is that the mission had too few judges and prosecutors: 2.3 per cent of the staff, during those first six years, or one sixth of the size of Eulex’s police advisory unit, half of whose members—6.1 per cent of the staff—dealt with the administration and day-to-day functions of Kosovo’s police and played no direct role in the prevention or repression of crime (the police advisory unit was large and unnecessary in equal measure, incidentally, and it dealt also with matters of such small import as the management of the vehicle fleet of Kosovo’s police).

22. The too few prosecutors were irrationally distributed, moreover: only half of them – 13 according to the organogram, but never more than nine or ten – were in charge of corruption and organized crime, and they also had to deal with war crimes files. The district of Milan, by contrast, whose population is comparable to Kosovo’s, has 12 specialized anti-corruption prosecutors who, unlike Eulex’s, are not burdened by any advisory function. Assuming that one third of Eulex’s prosecutors worked full-time on corruption and spent only one third of their time on the advisory functions, and excluding the Kosovar prosecutors from the calculation (by reason of their exposure to interference and intimidation), the comparison between Kosovo and Milan is one to six. Prosecutors are the gatekeepers of the criminal courts, for without their stimulus the latter remain idle: deploying so few of them severely constrained the overall potential of the mission even before it set foot in Kosovo.

The deeper causes of Eulex’s underperformance: weak independence, accountability, and oversight

23. One could retort that Eulex achieved few results because fighting serious crime in Kosovo is a complex enterprise. This consideration must certainly be borne in mind, but the mission’s results were gravely unsatisfactory also because it disregarded its mandate. In the annex to my book I discuss eight cases, of which I have direct and documentary evidence proving (or at least strongly suggesting) that Eulex conducted no investigations, or issued no indictments, despite the fact that it disposed of credible and well-documented evidence strongly suggesting that serious crimes had been committed.

24. In short, I believe that at the roots of Eulex’s underperformance lie: (1) the weak independence of its judges and prosecutors vis-à-vis the mission’s management, which had political interests that sometimes diverged from the mission’s mandate (to wit, it would have been hard for the head of mission to negotiate delicate law-and-order matters with Kosovo’s prime minister after the mission arrested the finance minister for corruption); (2) the weak accountability of the mission’s staff and management, which had feeble incentives to act diligently and loyally to the mission’s mandate; (3) the weak oversight that the mission received from Brussels, which for instance allowed the irrational allocation of its resources to persist.

25. Hence the particular importance of judicial independence within the mission. By separating the management from the mission’s judges and prosecutors, greater independence would have allowed both Eulex and the EU to enforce the law upon Kosovo’s elite and, at the same time, continue dealing with it diplomatically. For firm judicial independence would have allowed the head of mission to tell Kosovo’s prime minister that he knew nothing, and could do nothing about, the arrest of the finance minister, precisely because prosecutors and judges are independent. Save for the most exceptional cases, this arrangement would have struck a more productive trade-off between the conflicting objectives of at the same time dealing with Kosovo’s elite, and cleaning it of its criminal components.

26. At leas in part, underlying these causes may lie the absence of a clear and firm political mandate from Brussels for Eulex to implement its mandate vigorously. In other words, the EU member states that more strongly supported the case for Kosovo’s independence may not have been very insistent on that front, on account of the risk that a string of prominent arrests by the mission would unveil, before international public opinion and their own electorates, the inadequacy of the political elite of the new state.

27. This, however, does not fully explain Eulex’s conduct. For there is no doubt that those same EU member states did want the mission to target the criminal components of Kosovo’s elite, at least in reasonable proportion.[10] Eulex’s underperformance therefore stems in large part from the timidity and vested interests of its management, for repressing high-level crime is a complex, demanding, and potentially dangerous activity: if they could calculate that their inaction on his front would not be held against them, thanks to weak oversight from Brussels, it seems natural that they would concentrate on the easier and far less controversial task of providing advice and capacity building to Kosovo’s law enforcement bodies.

Final remarks

28. One conclusion of my book, in 2015, is that Eulex should have been either deeply reformed, in the direction I just indicated, or withdrawn. Jacqué’s report (cited at paragraph 14) equally presents the alternative between reform and withdrawal (even though, as I said, the reforms he suggest do not fully coincide with mine). The mission has not been meaningfully reformed, but merely reduced in size and powers.

29. Another conclusion of my book is that Eulex’s history suggests serious shortcomings on the governance of the EU’s foreign policy (which can be inferred from paragraphs 23–7).

30. I therefore suppose that, should the British government choose to continue contributing to Eulex, it might wish to take a more critical and demanding stance on the mission’s governance and the quality of the oversight it receives from Brussels. As an engaged and informed but external contributor, London would seem ideally placed to help both Eulex and the EU to improve their performance.

31. The same reasoning may be extended to other CSDP missions, existing or future: Britain’s participation might be valuable not just for its concrete contribution, but also for the independent assessment that London may provide on the governance, oversight, and management of those missions.

32. I am unable, conversely, to opine on whether Britain’s participation would be in its own interest.

7 February 2018