(CN) — The European Union’s highest court on Tuesday broadened its sphere of jurisdiction and said it has the authority to examine the actions of EU agencies and personnel even when they take place outside the bloc’s borders.
In widening its judicial oversight into the foreign policy arena, the European Court of Justice’s grand chamber took the side of two women in war-torn Kosovo who accused an EU-led civilian mission in Kosovo of failing to investigate the disappearance and deaths of their husbands during the 1999 Kosovo conflict. A son also was killed alongside one woman’s husband.
The power of EU courts over the bloc’s foreign policy has long been a contested gray area, but Tuesday’s ruling showed the Luxembourg-based court is flexing its muscles over some aspects, particularly when it comes to concrete actions by agencies and personnel carrying out EU duties in foreign lands.
While the court said it was not in the business of assessing the legality of political, security and strategic choices the bloc makes in foreign policy, when “acts and omissions” are not “directly related to those political or strategic choices” it has “jurisdiction to assess the legality of those acts or omissions or to interpret them.”
Tuesday’s ruling overturned a November 2021 decision by the General Court, a lower EU court, that said the claims of the Kosovar women were outside the jurisdiction of EU courts. The women argue the EU mission in Kosovo violated their human rights by not investigating what happened to their family members.
The Kosovar women appealed to the high court. In their appeal, they were joined by the European Commission, the EU’s executive body. It too asked the high court to cast aside the lower court decision, arguing more clarity was needed over what aspects of foreign policy fall under the courts’ jurisdiction.
“It’s a generous ruling and I think it’s a right ruling because it brings a spotlight of judicial scrutiny onto acts that otherwise would not have been able to be scrutinized,” said Fergus Randolph, a London-based lawyer for the plaintiffs, in a telephone interview.
This case goes back to a large-scale EU-led mission established in 2008 in Kosovo known as Eulex Kosovo, an abbreviation for the European Union Rule of Law Mission in Kosovo.
With more than 3,000 police officers and judicial personnel at its height, the mission was given the task of policing the newly independent Kosovo and setting up courts to investigate war crimes committed during the Serbia-Kosovo conflict in 1998 and 1999. The mission is still in operation, though its duties have been scaled back.
The women at the center of Tuesday’s case asked Eulex to investigate what happened to their family members. But their pleas for investigations went unheeded, leading both women to file complaints with a human rights panel overseeing Eulex. That review board found Eulex had violated the women’s rights by not conducting proper investigations.
“Eulex didn’t do very much; there was a review panel that was set up, and the review panel said, ‘Yeah, there have been breaches of your relevant human rights,’” Randolph said. “But the review panel had no authority to do anything to force Eulex” to conduct the probes.
It remains largely unknown what happened to the men, said Jovanka Savic, a London-based lawyer for the plaintiffs, in a phone interview. She declined to provide details about her clients, but their stories were briefly described in reports from the human rights review panel.
The husband of the woman identified in Court of Justice documents only as KS was last heard from on June 29, 1999, according to a panel report. The man, a doctor of Serbian ethnicity at a hospital in Pristina, Kosovo’s main city, telephoned home at about 1 p.m. and told their daughter he was coming home. But he was never heard from again, and his whereabouts and remains have not been found.
In the other case related to a woman identified as KD by the Court of Justice, her husband and son, both of Serbian ethnicity, disappeared on June 16, 1999, while they were visiting a family home outside Pristina, according to a panel report. KD heard gunshots before they disappeared. Their bodies were found in an unmarked mass grave containing nine bodies a few days later.
“These are cases that have been outstanding for about 25 years with a range of authorities responsible for the investigations not actually having conducted those investigations,” Savic said.
She said the ruling was a long overdue win, but she remained cautious about whether her clients will finally see proper investigations get done into what happened to their loved ones or receive reparations.
“How we get there, if we get there, is still very uncertain,” she said. “It should have been resolved many years ago.”
Eulex has long faced criticism for not doing nearly enough to investigate war crimes in Kosovo and failing to tackle corruption and illegality in the country, which split away from the former Yugoslavia following armed conflict with Serbian forces and a NATO bombing campaign.
The EU mission was even engulfed in a series of corruption scandals between 2014 and 2017 with numerous high-level officials accused of wrongdoing, including bribe taking.
It is possible that Tuesday’s ruling may have subtle but wide-ranging ramifications for EU operations in conflict zones such as Kosovo.
The European Commission and its foreign affairs arm, the European External Action Service, did not reply to messages seeking comment.
In Kosovo, there are more than 500 people still trying to find people missing since the war, Savic said.
The case will now return to the General Court, which will revise its ruling based on the high court decision.
Courthouse News reporter Cain Burdeau is based in the European Union.