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Volume 9 (2005) - Max Planck Foundation for
Max Planck Yearbook of United Nations Law Volume 9 2005 Max Planck Yearbook of United Nations Law Founding Editors Jochen A. Frowein Rüdiger Wolfrum Max Planck Yearbook of United Nations Law Volume 9 2005 Editors Armin von Bogdandy Rüdiger Wolfrum Managing Editor Christiane E. Philipp Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON A C.I.P. Catalogue record for this book is available from the Library of Congress. This book should be cited as follows: Max Planck UNYB Printed on acid-free paper. ISBN 90-04-14533-8 © 2005 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands V Foreword In October 2005 the United Nations is celebrating its 60th anniversary, a good opportunity to consider past activities of the United Nations as well as the challenges it is facing. Some of these new challenges were not anticipated by the diplomats who assembled in San Francisco 60 years ago. The present Volume 9 of the Max Planck Yearbook of United Nations Law is dedicated to one particular issue where the United Nations throughout the last years has met a new challenge and has not yet developed a coherent strategy for how to cope with it, namely the management of post-conflict situations. Post-conflict situations are considered those where either, due to different internal or external reasons, the organization of a state has disappeared totally or where different conflict parties compete for the control of a state or where after an internal or an international conflict, followed by a change of the governmental regime, the government has to be re-established. The management of those situations undoubtedly belongs to one of the main functions of the United Nations, in particular the Security Council with its competence in respect of the preservation or restoration of international peace. This has been accepted as such by the United Nations most prominently in the Report of the SecretaryGeneral In Larger Freedom: Towards Development, Security and Human Rights for All and has been acknowledged in this Volume. Members of the Max Planck Institute for Comparative Public Law and International Law and others have therefore undertaken to describe and analyze several post-conflict situations where the United Nations either has been directly involved in the administration of a territory or has supervised the respective efforts of Regional Organizations or states or, at least, has provided guidance for states. The situations chosen are not meant to cover all cases in which the United Nations, Regional Organizations or states have been involved. The selection and respective analysis of the cases was undertaken with the view to establish whether the United Nations has developed a general pattern in the management of those post-conflict situations. The case studies are supplemented by articles on cross-cutting issues tackling questions such as post-conflict VI justice, nation- and state-building and their conceptual clarification, as well as the experiences under the League of Nations. Within the United Nations, the view seems to prevail that each case has to be treated individually. The analysis undertaken in this Volume points in a different direction. The United Nations should develop substantive standards, which are as comprehensive as possible, to govern the international administration in post-conflict situations undertaken by whomsoever. The existence of such standards would make it easier for the United Nations to influence more effectively the administration of the above mentioned cases, and would have given the United Nations a tool it could have used in the latest case at hand, the U.S. led coalition in Iraq. The current proposal concerning the establishment of a Peacebuilding Commission, as well as a Peacebuilding Support Office within the Secretariat, as proposed in the above mentioned report, only covers the institutional side within the United Nations without concerning the more central aspect of applicable standards. Rüdiger Wolfrum Heidelberg, August 2005 VII Restructuring Iraq Possible Models based upon Experience gained under the Authority of the League of Nations and the United Nations Contents List of Contributors ................................................................................. XI Abbreviations ......................................................................................... XV Wolfrum, Rüdiger, Iraq – from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference ............................................................................................ 1 Matz, Nele, Civilization and the Mandate System under the League of Nations as Origin of Trusteeship ....................................................... 47 Case Studies Gruss, Daniel, UNTEA and West New Guinea ........................................................ 97 Keller, Lucy, UNTAC in Cambodia – from Occupation, Civil War and Genocide to Peace ............................................................................. 127 Oellers-Frahm, Karin, Restructuring Bosnia-Herzegovina: A Model with Pit-Falls ........ 179 Max Planck UNYB 9 (2005) X Friedrich, Jürgen, UNMIK in Kosovo: Struggling with Uncertainty ......................... 225 Benzing, Markus, Midwifing a New State: The United Nations in East Timor ......... 295 Afsah, Ebrahim/ Guhr, Alexandra H., Afghanistan: Building a State to Keep the Peace............................. 373 Goldmann, Matthias, Sierra Leone: African Solutions to African Problems?................... 457 Philipp, Christiane E., Somalia – A Very Special Case ......................................................... 517 Cross Cutting Issues Seibert-Fohr, Anja, Reconstruction through Accountability.......................................... 555 von Bogdandy, Armin/ Häußler, Stefan/ Hanschmann, Felix/ Utz, Raphael, State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches.................................................. 579 Utz, Raphael, Nations, Nation-Building, and Cultural Intervention: A Social Science Perspective ............................................................................ 615 Wolfrum, Rüdiger, International Administration in Post-Conflict Situations by the United Nations and Other International Actors...................... 649 Book Reviews ......................................................................................... 697 List of Contributors Afsah, Ebrahim BA (SOAS), MPhil (TCD), MPA (Harvard), Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law Benzing, Markus Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Heidelberg von Bogdandy, Armin Dr. iur., M.A., Professor of Public Law, University of Heidelberg; Director at the Max Planck Institute for Comparative Public Law and International Law Friedrich, Jürgen LL.M. (McGill, Montreal), Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Hamburg Goldmann, Matthias Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Heidelberg Gruss, Daniel LL.M.-I.P. (Exeter/Dresden), Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Hamburg XII Max Planck UNYB 9 (2005) Guhr, Alexandra H. Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Hamburg Häußler, Stefan Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Frankfurt/ Main Hanschmann, Felix Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Frankfurt/ Main Keller, Lucy lic. iur., Junior Fellow at the Max Planck Institute for Comparative Public Law and International Law, Ph.D. candidate at the Faculty of Law, University of Lucerne Matz, Nele Dr. iur., LL.M. (University of Wales, Aberystwyth), Fellow at the Max Planck Institute for Comparative Public Law and International Law Philipp, Christiane E. Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Oellers-Frahm, Karin Dr. iur., Fellow at the Max Planck Institute for Comparative Public Law and International Law Seibert-Fohr, Anja LL.M., S.J.D. (George Washington University), Fellow at the Max Planck Institute for Comparative Public Law and International Law List of Contributors XIII Utz, Raphael M.Phil. (Oxon), Ph.D. Student, Institute for Eastern European History, University of Heidelberg Wolfrum, Rüdiger Dr. iur., Dr. h.c., Professor of Public Law, University of Heidelberg; Director at the Max Planck Institute for Comparative Public Law and International Law Abbreviations ACABQ Advisory Committee on Administrative and Budgetary Questions AD Annual Digest of Public International Law Cases A.F.D.I. Annuaire Français de Droit International AJDA Actualité Juridique – Droit Administratif AJIL American Journal of International Law Am. U. Int’l L. Rev. American University International Law Review Am. U. J. Int’l L. & Pol’y American University Journal of International Law and Policy Anu. Der. Internac. Anuario de Derecho Internacional Arch. de Philos. du Droit Archives de Philosophie du Droit Aus Pol. & Zeitgesch. Aus Politik und Zeitgeschichte Austr. Yb. Int’l L. Australian Yearbook of International Law Austrian J. Publ. Int’l Law Austrian Journal of Public International Law AVR Archiv des Völkerrechts Brook. J. Int’l L. Brooklyn Journal of International Law B. U. Int’l L. J. Boston University International Law Journal BVerfGE Decisions of the German Federal Constitutional Court BYIL British Yearbook of International Law XVI Max Planck UNYB 9 (2005) Cal. W. Int’l L. J. California Western International Law Journal Cal. W. L. Rev. California Western Law Review Case W. Res. J. Int’l L. Case Western Reserve Journal of International Law Chi. J. Int’l L. Chicago Journal of International Law CLJ Cambridge Law Journal CML Rev. Common Market Law Review Colo. J. Int’l Envtl. L. & Pol’y Colorado Journal of International Environmental Law and Policy Colum. Hum. Rts L. Rev. Columbia Human Rights Law Review Colum. J. Transnat’l L. Columbia Journal of Transnational Law Colum. L. Rev. Columbia Law Review Comunità Internaz. La Comunità Internazionale Conn. J. Int’l L. Connecticut Journal of International Law Cornell Int’l L. J. Cornell International Law Journal CTS Consolidated Treaty Series CYIL Canadian Yearbook of International Law Den. J. Int’l L. & Pol’y Denver Journal of International Law and Policy DGVR Deutsche Gesellschaft für Völkerrecht (German Society of Public International Law) Dick. J. Int’l L. Dickinson Journal of International Law Duke J. Comp. & Int’l L. Duke Journal of Comparative and International Law Duq. L. Rev. Duquesne Law Review EA Europa-Archiv ECOSOC Economic and Social Council ed. editor eds editors e.g. exempli gratia EJIL European Journal of International Law Abbreviations XVII ELJ European Law Journal Env. Policy & Law Environmental Policy and Law Envtl L. Rep. Environmental Law Reports EPIL Encyclopedia of Public International Law et al. et alii et seq. et sequentes etc. et cetera EuGRZ Europäische Grundrechte Zeitschrift EuZW Europäische Zeitschrift für Wirtschaftsrecht FAO Food and Agriculture Organization Fla. J. Int’l L. Florida Journal of International Law Fordham Int’l L. J. Fordham International Law Journal Fordham L. Rev. Fordham Law Review Foreign Aff. Foreign Affairs Foreign Pol’y Foreign Policy Ga. J. Int’l & Comp. L. Georgia Journal of International and Comparative Law Geo. Int’l Envtl L. Rev. Georgetown International Environmental Law Review Geo. L. J. Georgetown Law Journal Geo. Wash. J. Int’l L. & Econ. George Washington Journal of International Law and Economics Geo. Wash. L. Rev. George Washington Law Review GYIL German Yearbook of International Law Harv. Int’l L. J. Harvard International Law Journal Harv. L. Rev. Harvard Law Review Hastings Int’l & Comp. L. Hastings International and Compara- Rev. tive Law Review HRLJ Human Rights Law Journal HRQ Human Rights Quarterly HuV-I Humanitäres Völkerrecht – Informationsschrift XVIII Max Planck UNYB 9 (2005) IAEA International Atomic Energy Agency ibid. ibidem; in the same place IBRD International Bank for Reconstruction and Development ICAO International Civil Aviation Organization ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICSID International Centre for the Settlement of Investment Disputes id. idem; the same IDA International Development Association i.e. id est; that is to say IFAD International Fund for Agricultural Development IJIL Indian Journal of International Law ILA International Law Association ILC International Law Commission ILCYB Yearbook of the International Law Commission ILM International Legal Materials ILO International Labour Organization ILR International Law Reports ILSA J. Int’l L. ILSA Journal of International Law (International Law Students Association) IMF International Monetary Fund IMO International Maritime Organization Ind. J. Global Legal Stud. Indian Journal of Global Legal Studies Ind. Int’l & Comp. L. Rev. Indiana International and Comparative Law Review Int’l Aff. International Affairs Int’l Law. The International Lawyer Int’l Rev. of the Red Cross International Review of the Red Cross Iowa L. Rev. Iowa Law Review Abbreviations XIX IP Die internationale Politik Isr. L. R. Israel Law Review Isr. Y. B. Hum. Rts Israel Yearbook on Human Rights J. History Int’l L. Journal of the History of International Law J. Int’l Aff. Journal of International Affairs JIEL Journal of International Economic Law JIR Jahrbuch für internationales Recht JPR Journal of Peace Research JWT Journal of World Trade JWTL Journal of World Trade Law Law & Contemp. Probs Law and Contemporary Problems LJIL Leiden Journal of International Law LNTS League of Nations Treaty Series Loy. L. A. Int’l Comp. L. Rev. Loyola of Los Angeles International and Comparative Law Review Miami U. Int’l & Comp. L. University of Miami International and Rev. Comparative Law Review McGill L. J. McGill Law Journal Mich. J. Int’l L. Michigan Journal of International Law Mich. L. Rev. Michigan Law Review Mil. L. Rev. Military Law Review Minn. J. Global Trade Minnesota Journal of Global Trade NAFTA North American Free Trade Area NATO North Atlantic Treaty Organization NILR Netherlands International Law Review NJCL National Journal of Constitutional Law Nord. J. Int’l L. Nordic Journal of International Law NQHR Netherlands Quarterly of Human Rights NYIL Netherlands Yearbook of International Law N. Y. U. J. Int’l L. & Pol. New York University Journal of International Law and Politics XX N. Y. U. L. Rev. Max Planck UNYB 9 (2005) New York University Law Review Ocean & Coastal L. J. Ocean and Coastal Law Journal ODILA Ocean Development and International Law OJEC Official Journal of the European Communities Pace Int’l Law Rev. Pace International Law Review PCIJ Permanent Court of International Justice Pol. Sci. Political Science RADIC Revue Africaine de Droit International et Comparé RBDI Revue Belge de Droit International RdC Recueil des Cours de l’Académie de Droit International RDI Revue de Droit International, de Sciences Diplomatiques et Politiques RECIEL Review of European Community and International Environmental Law REDI Revista Española de Derecho Internacional Rev. Dr. Mil. Dr. Guerre Revue de Droit Militaire et de Droit de la Guerre Rev. ICR Revue Internationale de la Croix Rouge RGDIP Revue Générale de Droit International Public RIAA Reports of International Arbitral Awards Riv. Dir. Int. Rivista di Diritto Internazionale RTDE Revue Trimestrielle de Droit Européen RUDH Revue Universelle des Droits de L’homme San Diego L. Rev. San Diego Law Review Santa Clara L. Rev. Santa Clara Law Review Stanford J. Int’l L. Stanford Journal of International Law Abbreviations XXI SZIER/RSDIE Schweizerische Zeitschrift für internationales und europäisches Recht/Revue Suisse de Droit International et de Droit Européen Temp. Int’l & Comp. L. J. Temple International and Comparative Law Journal Tex. Int’l L. J. Texas International Law Journal Tex. L. Rev. Texas Law Review Transnat’l L. & Contemp. Probs Transnational Law and Contemporary Problems Tul. Envtl L. J. Tulane Environmental Law Journal Tul. J. Int’l & Comp. L. Tulane Journal of International and Comparative Law U. Chi. L. R. University of Chicago Law Review UCDL Rev. University of California Davis Law Review UCLA J. Envtl L. & Pol’y University of California Los Angeles Journal of Environmental Law and Policy UCLA J. Int’l L. & Foreign Aff. University of California Los Angeles Journal of International Law and Foreign Affairs UCLA Pac. Basin L. J. University of California Los Angeles Pacific Basin Law Journal UNCIO United Nations Conference on International Organization UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development UNDP United Nations Development Programme UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNFPA United Nations Population Fund XXII Max Planck UNYB 9 (2005) UNHCR United Nations High Commissioner for Refugees UNICEF United Nations Children’s Fund UNIDO United Nations Industrial Development Organization UNITAR United Nations Institute for Training and Research UNJYB United Nations Juridical Yearbook UNRWA United Nations Relief and Works Agency for Palestine Refugees in the Near East UNTS United Nations Treaty Series UNU United Nations University UNYB Yearbook of the United Nations UPU Universal Postal Union Va. J. Int’l L. Virginia Journal of International Law Va. L. Rev. Virginia Law Review Vand. J. Transnat’l L. Vanderbilt Journal of Transnational Law Vol. Volume VRÜ Verfassung und Recht in Übersee Wash. L. Rev. Washington Law Review WFP World Food Programme WIPO World Intellectual Property Organization WMO World Meteorological Organization WTO World Trade Organization Yale L. J. Yale Law Journal Yale J. Int’l L. Yale Journal of International Law ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law ZEuS Zeitschrift für europarechtliche Studien ZRP Zeitschrift für Rechtspolitik Iraq – from Belligerent Occupation to Iraqi Exercise of Sovereignty: Foreign Power versus International Community Interference Rüdiger Wolfrum* I. II. * Introduction The Period of Belligerent Occupation 1. Applicable Law 2. General Objective of the International Norms on Belligerent Occupation 3. Obligations of the Belligerent Occupant a. Restoration, Maintenance of Peace and Re-establishment of an Effective Infrastructure – the Rules of International Humanitarian Law b. The Role of the Coalition in Respect of the Political Restructuring of Iraq c. The Role of the Coalition Forces as Belligerent Occupants as Modified by Security Council Resolution 1483 d. The Coalition Provisional Authority – General Functions and Status e. The Structural Reform concerning Foreign Investment, the Financial Market, Taxation and Privatization f. The Use of Natural and other Resources by the Occupying Power g. State Responsibility I would like to thank M. Benzing, J. Friedrich and Dr. C. Philipp for their comments on an earlier draft, as well as J. Windsor for checking the language. The article was finished at the beginning of August 2005 before the new Constitution for Iraq was published. A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 1-45. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. Max Planck UNYB 9 (2005) 2 4. The Interim Governing Council a. Establishment of the Interim Governing Council b. Status and Functions of the Interim Governing Council in Respect of the Reorganization of Iraq c. The Iraqi Special Tribunal 5. From the Interim Governing Council to the Interim Government a. Establishment of the Interim Government b. Law of Administration/ Interim Constitution c. The Interim Government of Iraq – Sovereign and Independent? aa. Introduction bb. Restoration and Maintenance of Security in Iraq under the Interim and the Transitional Government and the Status of the Multinational Force cc. General Restraints imposed upon the Interim and the Transitional Government by the Security Council dd. Management of Natural Resources ee. Continuation/ Discontinuation of Norms Issued by the CPA ff. International Responsibility for Actions Committed by Members of the Multinational Force after 30 June 2004 III. Conclusions I. Introduction Since the beginning of the war of the United States and its allies (the Coalition) against Iraq this state has undergone four different stages: (1.) the war which ended officially on 1 May 20031; (2.) the period of belligerent occupation by the United States and its allies; the end of which was marked by the formal “resumption of sovereignty” through 1 On 1 May 2003 President Bush declared the end of “major” military operations in Iraq. Some speculation developed from this wording. It has been argued that the President did not declare the end of the war so as not to be obliged to release the prisoners of war and to be further in the position to arrest people accused of war crimes, see in this respect, M. Hmond, “The Use of Force against Iraq: Occupation and Security Council Resolution 1483”, Cornell Int’l L. J. 36 (2004), 443 et seq. (444). This is not the case as will be shown below. The continuation of the period of belligerent occupation depends upon whether the United States or rather the Coalition Military Forces exercise control over Iraq whereas the former government does not. In fact, the letter of 8 May 2003 of the Permanent Representatives of the United States and the United Kingdom, to which S/RES/1483 (2003) of 22 May 2003 refers, states: “… recognizing the specific authorities, responsibilities and obligations under applicable international law of these states as occupying powers under unified command”. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 3 the “Interim Government” on 28 June 2004, respectively 1 July (3.) and (4.) the period under the “Transitional Government” until the takeover by an elected government, which is scheduled for December 2005. The term “Interim Government” used within this article refers to the government established on 1 July 2004 which lasted until the election of the Transitional National Assembly on 30 January 2005 which formed a “Transitional Government”. In spite of the different stages Iraq has gone through since the beginning of the war by the United States and its allies, the process of transition of Iraq from belligerent occupation to an Interim Government and then to the Transitional Government was a gradual one, since the functions of each of the respective governments of Iraq increased. Nevertheless different rules of international law govern each of these periods. The following article will deal with the second2 and, in particular, the third and fourth stages, namely when Iraq was under the belligerent occupation of the United States and its allies and the periods thereafter when the governmental authority was assumed by the Interim Government and the Transitional Government respectively. As far as the period of occupation is concerned the article will also deal with the question whether the occupying forces lived up to the applicable international law, whether the respective international norms are adequate in a situation where the change of a governmental system seems to be the prerequisite for a return to a sustainable peace and whether the Security Council modified the legal situation. The stages after 28 June 2004 raise the question concerning the legitimacy of the establishment of the Interim Government and the Transitional Government respectively and concern their status, taking into consideration the functions exercised and the prerogatives enjoyed by the United States and its allies. 2 The war against Iraq, particularly the question whether it was legal under international law or, at least, legitimate has been extensively covered in literature. Max Planck UNYB 9 (2005) 4 II. The Period of Belligerent Occupation 1. Applicable Law Belligerent or military occupation places the de facto ruling authority in the hands of the occupant.3 The rights of the occupant are temporary, not permanent, whereas the de jure sovereignty rests with the respective state whose territory has been occupied.4 International law governing this situation and limiting the powers of the occupying power is enshrined in arts 42-56 of the Hague Regulations,5 the Fourth Geneva Convention, in particular arts 27-34 and 47-78,6 in Additional Protocol I7 as well as in customary international law.8 The respective rules of 3 4 5 6 7 8 See also The Manual of the Law of Armed Conflict, UK Ministry of Defence, 2004, 274 et seq.; A. Roberts, “What is a Military Occupation?”, BYIL 55 (1984), 249 et seq.; C. McCarthy, “The Paradox of the International Law of Military Occupation: Sovereignty and the Reformation of Iraq”, Journal of Conflict & Security Law 10 (2005), 43 et seq. (45). Belligerent occupation does not confer sovereignty upon the occupant, see McCarthy, see note 3, 49; on the historical development of this issue see R.R. Baxter, “The Duty of Obedience to a Belligerent Occupant”, BYIL 27 (1950), 235 et seq.; M. Greenspan, The Modern Law of Land Warfare, 1959, 217. Annex to the Convention Respecting the Laws and Customs of War on Land of 18 October 1907 (authentic text French), reprinted in: D. Schindler/ J. Toman, The Laws of Armed Conflicts, 1988, 63 et seq. The International Military Tribunal of Nuremberg had stated that the Hague Regulations constituted customary international law, cf. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. XXII, 497. Article 154 Fourth Geneva Convention states that it complements the Hague Regulations. This is underlined by Greenspan, see note 4, 213 whereas H.P. Gasser in: D. Fleck (ed.), Handbook of Humanitarian Law in Armed Conflict, 1995, states that the dominant law is the Fourth Geneva Convention (241). For a comparison of the provisions of the Fourth Geneva Convention and of the Hague Regulations, see J. Pictet, Commentary IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 1958, 614. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ILM 16 (1977), 1391 et seq. Under the Fourth Geneva Convention the meaning of the notion of “occupation” is wider than under the Hague Regulations. According to article Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 5 international humanitarian law apply whenever a belligerent state occupies the territory of the adversary or a part thereof.9 The applicability of international humanitarian law does not depend upon whether the military occupation was in conformity with international law (as, for example, in the case of self-defense) or not. The applicable international humanitarian law deals with particular aspects of a belligerent occupation. Given the technical and, in particular, political changes that have occurred in modern warfare, international humanitarian law can no longer be considered comprehensive. For example new weapon technology requires a redefinition of leading principles of international humanitarian law. What is even more relevant for the complex dealt with in this contribution is the increasing lack of differentiation between civilians and combatants. Apart from that international humanitarian law is supplemented by international human rights law.10 9 10 42 of the Hague Regulations it is essential that an occupied territory is “… actually placed under the authority of the hostile army”, whereas under article 2 (2) of the Fourth Geneva Convention the rules of belligerent occupation also apply in cases where the occupation meets no armed resistance. The broadened ambit of belligerent occupation means that there exists no intermediate period between what might be referred to as invasion phase and the inauguration of a stable military occupation. Also cases are covered where the occupation is not in fact the outcome of a military confrontation. C. Greenwood, “The Administration of Occupied Territories in International Law”, in: E. Playfair (ed.), International Law and the Administration of Occupied Territories, 1992, 241 et seq. (243). As to the application of general international human rights standards see J.A. Frowein, “The Relationship between Human Rights Regimes and Regimes of Belligerent Occupation”, Isr. Y. B. Hum. Rts 28 (1998), 1 et seq. (9 et. seq.). He points out that international humanitarian law is to be considered as lex specialis. A detailed analysis is contained in Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2004, 20 et seq. He emphasizes, though, that the norms of international humanitarian law protecting human rights address states as beneficiaries rather than individuals. One has to take into account though that the U.S. Government seems to advocate the non-applicability of human rights treaties to U.S. forces abroad, see the Report of the U.S. Defense Department, Working Group on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, of 6 March 2003. The U.S. Government advances two main arguments to endorse its position, namely that international human rights treaties do not apply outside the United States and that, as far as the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is concerned for the United States, according to its under- 6 Max Planck UNYB 9 (2005) According to article 42 Hague Regulations a territory is considered occupied when it “is actually placed under the authority of the hostile army”. This is a factual issue,11 no proclamation to that extent is needed. It is only decisive that the former government has been rendered incapable of publicly exercising its authority in the respective area and that the occupying power is in a position to substitute its own authority for that of the former government. At least after 1 May 2003 Iraq in its totality had to be considered as militarily occupied in spite of the ongoing terrorist attacks or the calls from some political or religious leaders to resist the allied forces. The formerly disputed issue whether the rules of military occupation apply only during the course of actual warfare has been resolved by article 6 Fourth Geneva Convention according to which the Convention continues to apply to the occupied territory despite the general close of military operation in a conflict. 11 standing issued upon ratification, torture is meant to embrace only any act inflicting severe physical or mental pain that is specifically intended to cause such pain or suffering. As far as the first argument is concerned it has to be noted that the Human Rights Committee has consistently held that pursuant to article 2 para. 1 of the Covenant on Civil and Political Rights the rights enshrined must be respected in any place, where the respective government effectively exercises its jurisdiction. As for the second argument one cannot but state that such understanding runs counter to object and purpose of the International Covenant on Civil and Political Rights, as for details see A. Cassese, “Are International Human Rights Treaties and Customary Rules on Torture Binding upon U.S. Troops in Iraq?”, Journal of International Criminal Justice 2 (2004), 872 et seq. Finally, the U.S. Government should take into account that the International Criminal Tribunal for the Former Yugoslavia held in the Furundžija case that the prohibition of torture contained in international humanitarian law constitutes jus cogens, ICTY, Trial Chamber, Prosecutor v. Furundžija, Judgment (1998), Case IT-95-17/1, ILR 121, 213 et seq. (254-257, 260 (1)). See article 42 Hague Regulations; this provision is supplemented by article 27 of the Fourth Geneva Convention. The Proclamation of occupation by the United States is only relevant to the extent that the population of the areas under the effective authority of the United States became aware of the existence of occupation. Such proclamation can neither bring occupation into existence nor postpone the applicability of the international humanitarian law rules on belligerent occupation. A. Roberts, “The End of Occupation: Iraq 2004”, ICLQ 54 (2005), 27 et seq. (30/31), indicates that in the political statements made by the U.S. and the U.K. governments the word “occupation” was avoided, whereas it was used in S/RES/1483 (2003) of 22 May 2003. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 7 One issue has to be taken into consideration concerning the applicability of the Fourth Geneva Convention. According to article 6 para. 3, the application of this Convention ceases one year after the general close of military operations. However, as long as the Occupying Power exercises the functions of a government the arts 1 to 12, 27, 29 to 34, 47, 49, 51 to 53, 59, 61 to 77 and 143 Fourth Geneva Convention remain applicable. This rule has been modified by article 3 lit. (b) Additional Protocol I according to which the application of the Conventions and of the Protocol shall cease, in the case of occupied territories, on the termination of occupation. In respect of Iraq the application of that provision is problematic. This provision cannot be considered to be part of customary international law; thus for those of the occupying states, such as the United States, which are not a party to Additional Protocol I, the Fourth Geneva Convention will be only temporarily applicable in its entirety, and for others until military occupation comes to an end. This means in essence that the applicable rules will differ among the occupying states, namely, the United States and the United Kingdom on the one hand and the others such as Japan, Italy and Poland on the other. The issue of replacement of the humanitarian rules on occupation by human rights rules was discussed in abstracto at the Diplomatic Conference of Geneva in 1949 which adopted the Four Geneva Conventions. It was argued that one year after the close of hostilities, the authorities of the occupied state will and should have regained most of their responsibilities and, accordingly, there would be no further justification for applying rules accommodating the security interests of the occupying power.12 This is not a merely academic issue. For example, article 78 Fourth Geneva Convention dealing with security measures, in particular internments, does not belong to the core issues applicable for the whole period of occupation. In consequence thereof internment activities of the United States in Iraq have been covered by the stricter rules of general international human rights since 1 May 2004. 2. General Objective of the International Norms on Belligerent Occupation As already indicated the international norms on belligerent occupation referred to are meant to cover a transitional period only, i.e. until the 12 Pictet, see note 6, 43. 8 Max Planck UNYB 9 (2005) government of the occupied state has reorganized itself. They try to strike – in that period – a balance between the security interests of the occupying power and the presumed interests of the population of the occupied state by preserving the status quo ante as far as the unity of the respective state is concerned and the maintenance of the existing legal order to the extent that the security interests of the occupying power so permit. International law, in principle, does not legitimize the introduction of political changes.13 This is true even in those cases – and Iraq undoubtedly was such a case – where respective changes in government may be necessary for the transformation from a totalitarian regime into a democratic political system and thus to eradicate the causes of conflict. Stating that such a change may contribute to the restoration of peace does not yet answer whether unilateral actions allegedly pursuing such a purpose conform to existing international law.14 3. Obligations of the Belligerent Occupant a. Restoration, Maintenance of Peace and Re-establishment of an Effective Infrastructure – the Rules of International Humanitarian Law It is the main obligation of the belligerent occupant to restore and maintain, as far as possible, public order and safety.15 The U.S. Army 13 14 15 Pictet, see note 6, 273, who states that unwarranted interferences in the domestic affairs of an occupied territory “… are incompatible with the traditional concept of occupation … according to which the occupying power was to be considered as merely being a de facto administrator. The provision of the Hague Regulations in not applicable only to the inhabitants of the occupied territory; it also protects the separate existence of the state, its institutions and its laws”. See on this issue the second contribution of R. Wolfrum, in this Volume. Article 43 Hague Regulations: “The authority of the legitimate power having in fact passed to the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This provision is supplemented by article 27 Fourth Geneva Convention which, in its last sentence, states that the occupying power may take such measures of control and security as may be necessary as a result of the war. No further specification is provided for, leaving it to the discretion of the occupying power which measures to choose. How- Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 9 Field Manual 27-10 cites this obligation of the occupying power accurately: “... The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore and ensure, as far as possible, public order and safety ...”.16 The reference to the fact that the transfer of authority is the result of a factual development emphasizes again that this does not mean a transfer of sovereignty. It is this point which has been highlighted by the Security Council in respect of Iraq when it referred to the territorial integrity and sovereignty of Iraq.17 The obligation to ensure and restore public order and safety entails police functions with the view to protect, for example, museums, hospitals, the public infrastructure, public buildings, embassies and consulates against looting or destruction.18 The actual attitude taken by United States troops in the first days in Baghdad did not seem to reflect that obligation adequately. The occupant, on the other hand, is not responsible for the effects of terrorist attacks, though, as long as adequate precautionary measures have been taken. Since the responsibilities of the belligerent are of a merely temporary nature it must – as a matter of principle – refrain from interfering in the legal order of the occupied territory19 or in its governmental 16 17 18 19 ever, article 27 Fourth Geneva Convention contains certain restrictions implementing the general obligation of humane treatment. Further restrictions are contained in arts 41 to 43, 78 and 79 to 135 (Regulations for the Treatment of Internees) Fourth Geneva Convention. Apart from that one may argue that law enforcement measures – different from fighting pockets of resistance where the laws of armed conflict apply – should be guided by the 1979 UN Code of Conduct for Law Enforcement Officials and the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The U.K. Manual of the Law of Armed Conflict, see note 3, does not refer to this very basic principle. S/RES/1472 (2003) of 28 March 2003; 1500 (2003) of 14 August 2003; 1511 (2003) of 16 October 2003. Regulations issued by the occupying power falling under this category include amongst others regulations concerning child welfare, labor, food, hygiene and public health; cf. Pictet, see note 6, 337. Pictet, see note 6; different obviously E. Benvenisti, “The Security Council and the Law on Occupation: Resolution 1483 on Iraq in Historical Perspective”, Israel Defense Forces Law Review 1 (2003), 19 et seq. (30). He bases his argument predominantly on the fact that the French text of article 43 of the Hague Regulations referring to “L’ordre et la vie publics”, is broader than “public order and safety”. In no case would the French word- 10 Max Planck UNYB 9 (2005) structure20 unless its security interests demand otherwise. It is this general principle that has come under discussion. Article 64 Fourth Geneva Convention stipulates that the penal laws of the occupied territory shall remain in force. It gives expression to the general principle of the law of occupation, namely the continuity of the legal system which applies to the whole of law. Concerning penal law article 64 Fourth Geneva Convention provides for two exceptions. Penal laws may be repealed or suspended by the occupying power in cases where they constitute a threat to its own security or an obstacle to the application of the Convention. The first possibility is self-explanatory. The second one is to be understood as heralding a general principle. It enables the occupying power to abrogate any law not in conformity with the human rights standards enshrined in the Fourth Geneva Convention21 or to which this Convention alludes, namely rules which adversely affect racial or religious minorities (article 27 Fourth Geneva Convention) or are incompatible with the requirement of humane treatment. According to article 23 lit. (h) Hague Regulations the right of the inhabitants of the occupied territory to take legal action in the local courts must not be affected. The courts of the occupied territory retain jurisdiction to deal with any of the inhabitants’ cases that are neither of a military nature nor affect the security of the occupying forces. The latter cases are to be dealt with by the authorities of the occupying forces.22 According to article 49 Fourth Geneva Convention the occupying power is prohibited from transferring civilians from the occupied territory to another country. Article 147 of the Fourth Geneva Convention further lists unlawful deportation or transfer or unlawful confinement of protected persons as a grave breach of the Convention. Additionally collective punishment is prohibited.23 These rules which are to be con- 20 21 22 23 ing cover far-reaching re-organizational measures which determine the future of the occupied state. See below. Emphasized in the U.K. Manual of the Law of Armed Conflict, see note 3, 283-284. U.K. Manual of the Law of Armed Conflict, see note 3, 284. See article 50 of the Hague Regulations of 1907, see note 5, which provides: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible”. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 11 sidered as forming part of customary international law thus limit the means of the occupying force to suppress further internal resistance. The occupying power is further responsible for ensuring hygiene and public health24 as well as food and medical supply.25 In that respect the occupying power has to co-operate with the respective local and national authorities. If such authorities have ceased to exist or have been dissolved by the occupying power the respective responsibilities devolve upon the latter. This can be put more generally: the more an occupying power interferes with administration of an occupied territory the more responsibilities for the well-being of the population devolve upon the occupying power. It is doubtful whether this has been realized by the occupying powers of Iraq. Under article 59 Fourth Geneva Convention the occupying power is under the obligation, if the whole or part of the population of an occupied territory is inadequately supplied, to agree to relief schemes on behalf of the said population, and must facilitate them by all means at its disposal. Such schemes may be undertaken by states or impartial organizations. Every effort is to be made to protect the respective consignments. The occupant cannot refuse the assistance of particular nongovernmental organizations unless such assistance poses a threat to the security of the former. However, relief consignments do not relieve the occupying power of its respective responsibility.26 One element within the broader obligation of an occupying power to restore and maintain good order and security is to provide protection for cultural property. The protection of cultural property reflects the general principle of international humanitarian law that military activities should be directed against military objects only. Apart from that modern international law also considers cultural property as being of relevance for the international community at large and therefore its protection, in particular, in times of war is a matter of consequence.27 Cultural property is also exposed to destruction or damage during occupation. International humanitarian law has therefore developed a scheme 24 25 26 27 Article 56 Fourth Geneva Convention. Article 55 Fourth Geneva Convention. Article 60 Fourth Geneva Convention. For details see Dinstein, see note 10, 152 et seq.; R. Wolfrum, “Protection of Cultural Property in Armed Conflict”, Isr. Y. B. Hum. Rts. 32 (2002), 305 et seq. 12 Max Planck UNYB 9 (2005) for the protection in this situation.28 The safeguarding and preserving of cultural property remains, in principle, within the competence of the authorities of the occupied country. The occupying power should support them as far as possible29 and should, in particular, not prevent them from discharging their duties. In two special cases the occupying power itself has to take necessary measures, first when cultural property has been damaged by military operations. When such damage occurs during a period of occupation, the responsibility of the occupying power is apparently greater. Its duty in this case, however, is limited to the most necessary measures i.e. those which cover a situation which threatens the very existence of cultural property or its deterioration.30 The same applies for the situation where the national authorities are unable to act.31 Secondly, a party to a conflict is obliged to prevent the export of cultural property from a territory which it occupies during an international armed conflict. If such property is transferred from the occupied territory into the territory of another state, the latter is under an obligation to protect such property.32 Property illegally exported from a territory under occupation has to be returned at the close of hostilities to the competent authorities of the country previously occupied.33 The former occupying power is to pay an indemnity to those who hold such property in good faith.34 Cultural property deposited by one state in the territory of another state party must be returned by the latter at the close of hostilities.35 This provision is mainly addressed to the powers with custody of objects in their jurisdiction or in territories occupied by them. In such territories they may not confiscate cultural property. 28 29 30 31 32 33 34 35 In particular the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 and the respective Protocol, as well as the two Additional Protocols to the Geneva Conventions are of relevance. Article 5 (1) of the 1954 Hague Convention. Article 5 (2) ibid.; J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, 1996, 85. Article 5 (2) ibid. See on this cases the Protocol for the Protection of Cultural Property in the Event of Armed Conflict of 1954. Section I (3) of the 1954 Protocol. Section I (4) of the 1954 Protocol. Section II (5) of the 1954 Protocol. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 13 Violations of these duties must be prosecuted and are liable to penal or disciplinary sanctions.36 After having taken over the control of Baghdad the Coalition Forces have neglected their obligation under general international law to protect the Iraqi National Museum. Neither the United States nor the United Kingdom is party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.37 Nevertheless, it is more than doubtful whether the Coalition Provisional Authority has lived up to its general obligation under international law to provide for effective protection of the museums and the sites of archaeological relevance. In keeping with the said international agreement, S/RES/1483 obliges all Member States to take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraqi National Museum, the National Library and other locations in Iraq. It is worth noting that this covers the period since 6 August 1990.38 Chapter VII of the UN Charter is binding upon all states and forms the basis for the treatment of cultural property removed from Iraq since 6 August 1990. b. The Role of the Coalition in Respect of the Political Restructuring of Iraq As already indicated under international humanitarian law, the occupying power must not politically restructure the occupied state. This is reflected in article 43 Hague Regulations which has received detailed supplementation in the Fourth Geneva Convention. According to the latter, in restoring and maintaining peace and security the laws in force of the occupied state shall be respected at all times unless the occupant is absolutely prevented from doing so.39 This provision – read literally – seems to be difficult to reconcile with present day realities. M. Greenspan argues that where wars are fought to achieve a change of a particular political regime, as was the case in World War II, the military occupant cannot be under an obligation to uphold the regime fought against. This is, in his view, particu36 37 38 39 Article 28 of the 1954 Hague Convention. Reprinted in Schindler/ Toman, see note 5, 745 et seq. S/RES/1483 (2003) of 22 May 2003 operative para. 7. This principle is emphasized in the U.K. Manual of the Law of Armed Conflict, see note 3, 277. 14 Max Planck UNYB 9 (2005) larly true in the case where the change of the political regime is the only effective means to secure peace. On that basis a wider interpretation of article 43 Hague Regulations has been argued.40 Such an interpretation, however, would deprive article 43 Hague Regulations of all its meaning making it dependent upon the objectives pursued by the occupant when entering the war.41 As much as it was legitimate to overthrow the totalitarian government of Germany and to introduce the rule of law and democracy in Germany there are now definite limits of international humanitarian law which hinder the occupant from freely and unilaterally changing the structure and the political system of an occupied state. Those limits are specified in the Fourth Geneva Convention.42 Changes in the political structure of the occupied state can only be made by the population of that state or representative institutions. A dominant influence exercised by the occupying power in this respect would go beyond its authorization under the respective rules of belligerent occupation and would be in violation of the principle of selfdetermination. In consequence thereof Regulation 1, Section 2 of the Coalition Provisional Authority states that all legislation in force in Iraq on 16 April 2003 shall remain in force unless replaced by the Coalition Provisional Authority or superseded by legislation.43 Nevertheless the Coalition Provisional Authority has significantly changed, in particular, the Iraqi legal order pertaining to its economic structure. It has further heavily influenced the political reorganization of Iraq. 40 41 42 43 Greenspan, see note 6. It should be noted that the U.S. Iraq Liberation Act of 1998 (Public Law 105-338-Oct. 31, 1998) already stated under Section 3: “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.” J.J. Paust, “The United States as Occupying Power over Portions of Iraq and Special Responsibilities under the Laws of War”, Suffolk Transnational Law Review 17 (2003), 1 (16 et seq.); H.H. Perritt, Jr., “Structures and Standards for Political Trusteeship”, University of California International Law and Foreign Affairs 8 (2003), 385 et seq. (393 et seq.), who argues that the Allied Occupation of Germany and of Japan had its basis on a political trusteeship equaled with the mandate or the trusteeship system of the League of Nations and the United Nation respectively. However, this is not the place to deal with the military administration of Germany and Japan. CPA Regulation 1 of 16 May 2003. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 15 Stated in more general terms, international humanitarian law is not designed to provide for post-conflict peace building in that it does not provide for the restructuring of a state even if this restructuring is the only means to reach a sustainable peace. It should be noted, though, that international law is not unaware that an interrelation may exist between the structure of a state and its influence on the peace in a region. International law is equally aware that the population of a state may need assistance in establishing a representative government. The means of assistance international law may provide in such situations differ significantly.44 Finally, it is worth considering whether general conclusions may be drawn from the situation in Iraq, in particular, taking into account the role the Security Council played in this respect. For example, under the mandate system of the League of Nations or the trusteeship system of the United Nations45 states have been authorized to administer certain territories with the view to prepare the respective population for selfgovernment.46 This not only opened the possibility for the states concerned to establish governmental structures based upon democracy and the rule of law but also obliged states to perform such a function. E. de Wet gives an overview of the instances and the format used for the administration of territories on behalf of the United Nations.47 The mandate system as well as the trusteeship system, however, applied only to post-colonial situations. Other means are the involvement of states, with or without the authorization of the United Nations or a regional organization, or of the United Nations itself as in the cases of Cambodia, East Timor or Kosovo. 44 45 46 47 For details see the second contribution of R. Wolfrum, in this Volume. See in this respect the contribution by N. Matz, in this Volume. See article 22 Covenant of the League of Nations, reprinted as Annex in the contribution of N. Matz; according to Article 76 lit. (b) UN Charter it is the basic objective of the trusteeship system “... to promote the political economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards selfgovernment or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned ...”. E. de Wet, “The Direct Administration of Territories by the United Nations and its Members in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq.; cf. also R. Caplan, International Governance of War-Torn Territories, 2005. 16 Max Planck UNYB 9 (2005) c. The Role of the Coalition Forces as Belligerent Occupants as Modified by Security Council Resolution 1483 Having briefly outlined the obligations of the Coalition Forces under international humanitarian law and the inherent restrictions concerning a political restructuring of Iraq it is necessary to consider whether and to what extent Security Council Resolution 1483 and subsequent resolutions of the Security Council mandate the Coalition to take steps which go beyond the narrow confines set by international humanitarian law. Such possibility exists in accordance with Article 103 UN Charter.48 It is another question whether and to what extent the Charter itself contains inherent limits for the Security Council in this respect. That the governments of the United States and the United Kingdom tried to gain international legitimization for their interim administration of Iraq can be taken from the letter of the United States and the United Kingdom of 8 May 2003 to the Security Council.49 The two governments attempted to achieve legitimacy for the Coalition’s belligerent occupation of Iraq. They further attempted to have the Coalition provided with the authority to govern and administer Iraq for an extended period of time and to reconstruct it politically and economically, to lift the economic sanctions and to end the Oil for Food Program. The two governments achieved some but not all of these objectives. Other members of the Security Council were particularly careful in not providing for an ex post legitimization of the invasion of Iraq. They also did not give the Coalition a totally free hand in the reorganization of Iraq. Security Council Resolution 1483 gives the Coalition the mandate to administer Iraq and to work towards its political and economic reorganization.50 This mandate goes beyond the powers assigned to a bel48 49 50 See D.J. Scheffer, “Beyond Occupation Law”, AJIL 97 (2003), 842 (843 et seq.). Article 103 UN Charter constitutes a conflict of laws rule rather than a form of hierarchy; see R. Bernhardt, “Art. 103”, marginal note 6, in: B. Simma (ed.), The Charter of the United Nations, 2nd edition, 2002. Doc. S/2003/538. Para. 4 of S/RES/1483 (2003) of 22 May 2003 reads: “Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future.” For a more restrictive interpretation see T. Marauhn, Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 17 ligerent occupant under international humanitarian law, in general. This is particularly true in respect of the political reorganization. The power of the Security Council to modify international humanitarian law in respect of the occupation of Iraq rests in its powers under Chapter VII of the UN Charter. The ultimate motive of the Security Council to broaden the mandate of the coalition forces may rest in the fact that the Security Council frequently has accused Iraq of having violated Security Council Resolutions and thus having been in breach of international law.51 Apart from that in S/RES/1441 (2002) the Security Council referred to S/RES/688 (1991) which stated that one of the major threats the regime of Saddam Hussein posed was its oppression of the Iraqi people. On that basis the mandate for a political reorganization of Iraq is to be seen as a contribution towards the restoration and preservation of peace in the region. It is to be noted that S/RES/1483 distinguished between the “Authority”, which refers to the United States and the United Kingdom,52 and other states.53 Only the powers and functions of the former have been broadened whereas other states are called upon “to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”. This differentiation of the states militarily engaged in Iraq is remarkable since the distribution of responsibilities is an unequal one. This may reflect realities. However, it is questionable whether it is possible to have several states bound by the rules of the Fourth Geneva Convention 51 52 53 “Konfliktbewältigung statt Legalisierung”, Vereinte Nationen 51 (2003), 113 et seq. (117); T. Bruha, “Irak-Krieg und Vereinte Nationen”, AVR 41 (2003), 295 et seq. (311); H.H. Perritt, Jr., “Iraq and the Future of United States Foreign Policy: Failures of Legitimacy”, Syracuse Journal of International Law and Commerce 31 (2004), 149 (152), speaks of a political trusteeship. As to the interpretation of Security Council resolutions in general, M.C. Wood, “The Interpretation of Security Council Resolutions”, Max Planck UNYB 2 (1998), 73 et seq. See S/RES/1483 (2003) of 22 May 2003, Preamble. See S/RES/1483 operative paras 4 and 6 referring to the “Authority” as compared to para. 5 referring to “all concerned” which means the Authority and all other states militarily involved in Iraq. 18 Max Planck UNYB 9 (2005) concerning the administration of occupied Iraq whereas the United States and the United Kingdom are not.54 Although the powers of the Coalition have been expanded, S/RES/1483 also establishes some limits; the exact scope of such limits can only be established indirectly, though. When operative para. 5 of Security Council Resolution 1483 calls on “all concerned” to comply with their obligations under international law, including the Geneva Conventions and Hague Regulations, this means that the said Resolution does not mean to override international humanitarian law completely but it has to be read and interpreted in the context of the former. In particular the Resolution reaffirms the right of the Iraqi people to self-determination55 and thus emphasizes that the process set into motion to restructure the government of Iraq must ultimately lead to a truly representative and democratically elected government.56 This is further emphasized by the fact that the Coalition is meant to assist the people of Iraq57 which means that the leading role is to be played by the people of Iraq. To put it differently, the Coalition must not impose its vision concerning a reorganized Iraq on the respective Iraqi institutions. It also must not set prejudices that would limit the liberty of Iraqi organs in the shaping of a new legal order for Iraq. Thus the Security Council gives the Coalition a certain leeway to reach a stage where a truly representative government has been established without compromising on the objective to be achieved. The Coalition has not kept within this limit, in particular, not as far as the national economic order is concerned, as will be seen.58 In particular, the reference to the integrity of the state of Iraq excludes any attempt to fragmentize Iraq. This rules out promotion of or preparation for a secession of the predominantly Kurdish populated areas from Iraq. It does not, however, exclude the establishment of a fed- 54 55 56 57 58 Roberts, see note 11, 33 points out that the wording may have its roots in domestic concerns of states such as Japan which supplied forces with a strictly humanitarian mission. Preamble. S/RES/1483 (2003) of 22 May 2003, see operative paras 4, 8 lit. (c), 9; this concurs with the approach advocated in the presentation by F.L. Kirgis, “Security Council Resolution 1483 on the Rebuilding of Iraq”, ASIL Insights (2003), available at <www.asil.org/insights.htm>. S/RES/1483 (2003) of 22 May 2003, operative paras 1 and 4. See below. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 19 eral system vesting the Kurdish region with autonomy even exceeding the one which existed, at least theoretically, previously. Further, S/RES/1483 does not compromise on the temporary nature of the administrative powers of the Coalition. Although the Security Council does not provide for a time frame in which the governmental powers are to be transferred back to Iraqi organs, para. 9 of S/RES/1483 expresses its support for the creation of a transitional Iraqi administration. This, at least, indicates that the Security Council expected a procedure to be set into motion that would provide for a stepby-step return of governmental authority to an Iraqi administration.59 This is not an equivalent to a clear-cut time frame in which full governmental power was to be returned from the Coalition to an Iraqi government. Nevertheless, this procedure at least reflects that belligerent occupation by the Coalition has to be transitional. The declared intent of the Coalition to restructure and in particular to re-establish the security forces of Iraq conforms to the basic principles of international humanitarian law, namely that it is for the population of the territory under occupation to reorganize itself and to establish the necessary institutions for the preservation of internal peace and security. The respective efforts of the Coalition are endorsed by the Security Council without qualifying them. Finally para. 8 lit. (c) of S/RES/1483 provides that the UN Special Representative for Iraq would have to work intensively with the Coalition and the Iraqi people to restore and establish national and local institutions of representative governance. This principle has not been fully implemented. The influence of the UN Special Representative concerning the composition of the Interim Governing Council and the subsequent Interim Iraqi Government was, in fact, limited. One may conclude that S/RES/1483 has modified international humanitarian law on belligerent occupation as far as Iraq is concerned to an extent that legalized the efforts of the Coalition to restructure Iraq politically. Apart from this fact which is of significance in itself for the situation prevailing in Iraq, the Security Council has developed a model. It is the main feature of this model to entrust particular states with the post-conflict management of a state and thus, in principle, fol- 59 Highly critical on para. 9, Hmond, see note 1, 449 who interprets this paragraph as giving the Coalition unlimited power for an unlimited period of time. This interpretation has been overtaken by events. 20 Max Planck UNYB 9 (2005) lows the pattern of the “coalition of the willing” used in the war against Iraq mandated by S/RES/678 (1990) of 29 November 1990.60 d. The Coalition Provisional Authority – General Functions and Status The situation of Iraq during the period of belligerent occupation is illustrated best by the status of the Coalition Provisional Authority. The Coalition Provisional Authority (CPA) was established shortly after the forces of the United States and its allies took control over Baghdad on 9 April 2003.61 Its mandate was to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, (including advancing efforts to restore and establish national and local institutions for a representative government) and facilitating economic recovery, sustainable reconstruction and development.62 This mandate concurs with the obligations of the occupying power under international humanitarian law. It is further modified and endorsed by S/RES/1483. Further elements concerning the administration of Iraq are contained in S/RES/1511 (2003) of 16 October 2003 and S/RES/1546 (2004) of 8 June 2004. The authority of the Governments of the United States and of the United Kingdom to establish such an institution rests in the respective rules of international humanitarian law, in particular those rules which oblige the occupying power to restore and maintain public order and security. This not only requires the undertaking of necessary activities but mandates also the establishment of the corresponding organizational infrastructure.63 On the U.S. national level the authority to set 60 61 62 63 Operative para. 2 refers to “Member-States co-operating with the Government of Kuwait”. A thorough assessment of, in particular, the origin of the CPA is provided by L.E. Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Congressional Research Service – Library of Congress, April 29, 2004. U.S. Office of Management and Budget, Report to Congress Pursuant to Section 1506 of the Emergency Wartime Supplemental Appropriations Act 2003 (Public Law 108-11, June 2, 2003, 2). See in this respect the letter of the Permanent Representative of the United States and of the United Kingdom to the President of the UN Security Council of 8 May 2003. Its relevant part reads: “In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 21 up, together with the Allies, the CPA may be derived from the Presidential War Power Authority. This does not make the CPA an American Federal Agency,64 though, since this would ignore the fact that the Authority had been established jointly by the United States and the United Kingdom even though the CPA reported to the U.S. Department of Defense and applied, for example, U.S. rules on procurement. Further it is impossible to consider the CPA as having been established by S/RES/1483. The Security Council merely takes note of the establishment of this Authority – and thus endorses it, including its mandate – and further re-emphasizes the application of the United Nations Charter as well as of the international humanitarian law.65 The CPA thus constituted an institution of its own, based upon international humanitarian law, in particular article 43 of the Hague Regulations, and on a respective agreement between the United States and the United Kingdom.66 Accordingly, the United States and the United Kingdom were jointly responsible for this Authority and in case of violations of international law would have to face the respective liability jointly. S/RES/1511 reaffirmed the administration of Iraq by the CPA; this can be taken as an acquiescence of the Security Council in this form of civil administration.67 By endorsing the roadmap concerning the transitional resumption of governmental authority by Iraqi institutions, in particular the Interim Government in S/RES/1546 (2004) of 8 June 64 65 66 67 command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction”, Doc. S/2003/538 of 8 May 2003. This possibility is discussed by Halchin, see note 61, 6-7. The respective preambular paragraph of the resolution reads: “Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”).” See Roberts, see note 11, 35. De Wet, see note 47, 316. 22 Max Planck UNYB 9 (2005) 2004, the Security Council re-emphasized the temporary nature of the CPA.68 In this context it is worth emphasizing that the CPA was established differently from NATO’s Stabilization Force (SFOR) in Bosnia. Although this force is also composed of a Coalition it is overseen by an international organization, namely NATO, and its establishment was explicitly authorized by the Security Council.69 Accordingly, the Coalition against Iraq opted for a less international organizational structure for the management of the post-conflict period thus following more closely the traditional pattern envisaged by the Hague Regulations than the Coalition against former Yugoslavia, which made use of the possibilities opened under Chapter VII of the UN Charter. e. The Structural Reform concerning Foreign Investment, the Financial Market, Taxation and Privatization The CPA Order 39 of 19 September 2003 promulgated a radical reform of the Iraqi legislation concerning foreign investment.70 According to this Order the complete foreign ownership of business in all sectors of the Iraqi economy is permitted. This does not apply though to the extraction and initial processing of natural resources.71 This Order also permits unrestricted, tax free transfer of all profits to foreign states.72 Foreigners and foreign-owned enterprises cannot purchase land; there is the possibility of a lease up to 40 years and the lease can be renewed for another such period.73 Foreign-owned retailed business must provide a $ 100,000 bond before conducting business in Iraq. Apart from these exceptions the Order stipulates that, in general, foreigners and Iraqis are treated equally as far as investment is concerned.74 This Order deviates radically from the pre-existing law, in particular the Iraqi Civil Code and the Iraqi Commercial Code which prohibited investment in, and establishment of, companies in Iraq by foreigners who are not resident citizens of Arab countries. The abolition of privileges for Arab citizens is worth noting. 68 69 70 71 72 73 74 At para. 2. S/RES/1088 (1996) of 12 December 1996, operative para. 18. See in particular McCarthy, see note 3, 52 et seq. CPA Order No. 39, Section 6 (1). Ibid. Section 7 (2) lit. (d). Ibid. Section 8 (2). Ibid. Section 13. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 23 The banking system has been transformed from a state-controlled system to a system which provides for the establishment of up to six foreign banks over the next five years.75 Further changes have been introduced in respect of the taxation system,76 and a new currency has been issued. Many sectors of the Iraqi public sector have been privatized; this includes, inter alia, primary and secondary education.77 Generally speaking Iraq has been transformed by the CPA from a centrally controlled socialist system into one which is free market oriented.78 Although it may be questioned whether the belligerent occupant had the legitimacy to introduce such changes, it is beyond doubt that they were mandatory if Iraq is to recover economically.79 The nature of these changes is such that it may be difficult for a future democratically elected Iraqi government to reverse them. These reforms go considerably beyond what is necessary to re-establish public order and civil life as provided for under article 43 of the Hague Regulations and the respective provisions of the Fourth Geneva Convention. Such changes in the economic sector have not been mandated by respective Security Council Resolutions. The political and economic desirability of such reforms is a separate question from the more limited issue of the necessity of reform for the purpose of re-establishing public order and civil life. All that is desirable but not strictly necessary and goes beyond the aim of re-establishing public order and civil life has to be left to the institutions of Iraq based upon democratic elections. Otherwise, the underlying assumption that sovereignty remains with the occupied state would become quite meaningless. f. The Use of Natural and other Resources by the Occupying Power A crucial restriction which international humanitarian law imposes upon the belligerent occupant is the rules on the use of natural resources. According to the international rules on military occupation the occupying powers are restricted in using the natural resources of Iraq. 75 76 77 78 79 CPA Order 40 of 16 September 2003. CPA Order 37 of 16 September 2003. See, for further details, McCarthy, see note 3, 54. McCarthy, see note 3, 55. See report of the UN Secretary-General of 17 July 2003, Doc. S/2003/715, para. 84. Max Planck UNYB 9 (2005) 24 Article 55 Hague Regulations formulates the leading principle according to which the occupying state is only the administrator and usufructuary of public buildings, real estate, forests and agricultural works belonging to the occupied state.80 Although this provision does not mention oil the latter is, considering the object and purpose of this provision, covered under this provision. In respect of the export of oil an arrangement has been reached within the framework of the United Nations81 which meets the basic principle under article 55 Hague Regulations. According to the arrangements decided upon in the Security Council a Development Fund for Iraq was established.82 All export sales of petroleum, petroleum products and natural gas are to be made consistent with international market best practices. All proceeds from such sales have to be deposited into the Development Fund. Five per cent of the proceeds are set aside for the Compensation Fund.83 S/RES/1483 stipulated that the Development Fund was to be disbursed at the discretion of the Authority (para. 13), but this was later changed, when the Interim Government of Iraq assumed full responsibility in June 2004.84 To make sure that the proceeds from oil exports are used for the restructuring of Iraq these proceeds have been declared to be immune from confiscation.85 g. State Responsibility A violation of the norms of armed conflict by the armed forces or – during the period of occupation – by state officials or persons working under the authority of the occupying power involves the international responsibility of that state, which may be liable to pay compensation for that violation. The transfer of governmental powers from the government of Iraq to the Coalition results in the transfer of international responsibility from the former to the latter. The United States has addressed this issue and provides for compensation on the basis of the Foreign Claims Act which covers damages resulting from United States military activities abroad. According to guidelines for the applicability 80 81 82 83 84 85 The U.K. Manual of the Law of Armed Conflict, see note 3, 303 does not elaborate upon this issue. S/RES/1483 (2003) of 22 May 2003. S/RES/1483 (2003) of 22 May 2003, operative para. 12. Operative para. 21, ibid. S/RES/1546 (2004) of 8 June 2004 operative para. 24. S/RES/1483 operative para. 22 and S/RES/1546 operative para. 27. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 25 of that Act in Iraq only damages are covered resulting from military activities committed after 1 May 2003, the day of the proclamation of belligerent occupation. The Act does not cover damages resulting from military action. Apart from that, no procedure has been set in motion to cover state responsibility resulting from activities of the personnel of the CPA. Therefore, this regime is not embracing enough to cover the state responsibility which may result from violations of international law attributable to the Coalition. Accordingly, the United States and the United Kingdom are separately and commonly responsible for the respective acts. 4. The Interim Governing Council a. Establishment of the Interim Governing Council As already indicated, the Security Council was particularly concerned that the people of Iraq would be put into the position “to reform their institutions and rebuild their country”.86 Although S/RES/1483 does not refer to democracy it at least speaks of a “representative government”.87 S/RES/1546 in this respect goes a decisive step further since it speaks in its operative part of “Iraq’s political transition to democratic government” and “democratic elections”.88 In keeping with international humanitarian law the Coalition was obliged to gradually transfer governmental functions back to Iraqi institutions. The first step for a transfer of governmental functions back to Iraq was the establishment of the Iraqi Interim Governing Council on 13 July 2003. The Interim Governing Council consisted of 25 members, who were appointed by the CPA. It was meant to represent the full spectrum of the Iraqi society. This Council appointed a nine-member rotational leadership committee from among its members, and on 11 August 2003 the Interim Governing Council formed a 25-member constitutional preparatory committee. According to CPA Regulation No. 6 of 13 July 2003, the establishment of the Interim Governing Council was legitimized by reference to the powers and functions of the CPA and Security Council Resolution 86 87 88 S/RES/1483 (2003) of 22 May 2003 operative para. 1. Preamble ibid. Operative para. 4 ibid. 26 Max Planck UNYB 9 (2005) 1483. This reference is of significance since it reflects the attempt to give the Interim Governing Council some international legitimacy. In fact, the relevant part of that resolution is phrased broadly enough to cover the establishment of such a Council.89 It remains doubtful, though, whether one can speak in this context of the formation of an “Iraqi Interim Administration” “by the people of Iraq”. The respective decisions were taken by the Administrator of the CPA directly. Neither the people of Iraq nor the Special Representative of the Secretary-General were able to influence the procedure of selecting the members of the Governing Council. In respect of the people of Iraq the Administrator of the CPA had no choice – given the total lack of representative bodies – but to select the members of the Interim Governing Council based upon its own authority. More intensive consultations with the UN Special Representative, however, would have not only been possible but necessary to meet the standards as enshrined in Resolution 1483.90 Given the way the Governing Council was established91 it is understandable that the Security Council in S/RES/1500 (2003) of 14 August 2003 only welcomed this development as “... an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq”. This means that the Security Council considered the occupying powers as those which were fully responsible for the present administration of Iraq and its future development. The statements of the members of the Security Council clearly indicate their ambivalence in this respect. Whereas the representative of France expressed his dissatisfaction with the resolution, the representative of Germany spoke of an important first step in the development towards an internationally recognized representative government. The representatives of the United States, the United Kingdom and of Spain took a more positive view.92 In spite of the divergent views 89 90 91 92 The respective part reads: “[The Security Council] ... 9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ...” See also the more positive view in S/RES/1511 (2003) of 16 October 2003, operative para. 4. Note has to be taken of the fact, though, that the UN Special Representative was assassinated in August 2003. Critical in this respect Roberts, see note 11, 38. See Doc. S/PV/4808 of 14 August 2003. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 27 and wording of Security Council Resolution 1500 which clearly reflects a compromise, this Resolution contains, apart from the establishment of the United Nations Assistance Mission for Iraq (UNAMI), the important message that the Security Council accepts the Interim Governing Council as a representative Iraqi interlocutor and thus legitimizes its establishment.93 b. Status and Functions of the Interim Governing Council in Respect of the Reorganization of Iraq The status and functions of the Interim Governing Council of Iraq are detailed in CPA Regulation Number 6 of 13 July 2003. It was meant to act as the principle body of Iraqi interim administration. Its task was to act as “representative of the Iraqi people” and to ensure “that the Iraqi people’s interests are represented in both the interim administration and in determining the means of establishing an internationally recognized, representative government”. The reference to “means” seems to indicate that the Interim Governing Council should not establish the government. This is confirmed in Section 2 of Regulation Number 6 where vis-à-vis the CPA the Governing Council is restricted to a consultative role. The establishment of the Governing Iraqi Interim Council was covered by S/RES/1483. However, its status was overrated in particular by S/RES/1511. The functions of the Interim Council were limited. As already indicated above, the Coalition Provisional Authority has restructured Iraq in particular as far as its economic and political system is concerned. Reference is to be made in this respect to the above mentioned Order 39 concerning foreign investment, Order 40 altering the banking system, Order 54 on trade liberalization policy, Order 56 concerning the Central Bank Law and Order 61 amending the Iraqi Company Law. It is to be discussed whether such changes, which have no foundation in international humanitarian law have been legitimized by the Interim Governing Council. At least this body was – retroactively – approved by S/RES/1483 and 1511.94 93 94 See also in this respect the terminology used by the Report of the Secretary-General pursuant to para. 24 of S/RES/1483, Doc. S/2003/715 of 17 July 2003. In S/RES/1511 (2003) of 16 October 2003 operative para. 4 states: “Determines that the Governing Council and its ministers are the principle bodies of the Iraqi interim administration, which, without prejudice to its further Max Planck UNYB 9 (2005) 28 All these Orders referred to above indicate that they have been adopted in close co-operation with the Interim Governing Council. However, this does not seem sufficient to establish a linkage between the population of Iraq and the Coalition Provisional Authority which would legitimize such far-reaching structural changes. The Interim Governing Council was established by the Coalition Provisional Authority. Although it was meant to represent the political spectrum of Iraqi society the latter was not directly involved in the process of establishment. Certainly the Security Council welcomed the creation of the Interim Governing Council and refers to this organ as embodying the sovereignty of the state of Iraq. This does not mean that the Security Council endorsed that far-reaching structural changes in Iraq were to be undertaken in the transitional period by this organ or, even less, by the Coalition Provisional Authority with some unsubstantial involvement of the Interim Governing Council. Finally, it has to be noted that the involvement of the Interim Governing Council in the drafting of these Orders was of a recommendatory nature, only. Therefore all these changes, particularly in the economic sector, lack legitimacy. The situation would have been different if the Security Council had mandated the Occupying Powers to undertake such measures. c. The Iraqi Special Tribunal In order to set the legal framework for the prosecution of crimes allegedly committed by high-level members of the Ba’ath Party regime for particular crimes, the Interim Governing Council on 10 December 2003 promulgated the Statute for an Iraqi Special Tribunal.95 Although a considerable degree of similarities exists between the Statute of the Iraqi Special Tribunal and the Statutes of International and Mixed Tribunals, i.e. the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Serious Criminal Offences Panels in East Timor (SCOPET), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and – to a lesser extent – the war crimes trials taking place un- 95 evolution, embodies the sovereignty of the State of Iraq during the transitional period…”. Available at <http://www.cpa-iraq.org/human_rights/statute.htm>. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 29 der the emergency justice system in Kosovo96 – there are also marked differences. The Iraqi Special Tribunal is clearly not an international court as the ICC, the ICTY or the ICTR. It is even less international than the mixed tribunals. However, it is equally not a genuine Iraqi Tribunal. It is first of all not fully embedded in the Iraqi judicial system nor does it only apply Iraqi criminal or Iraqi criminal procedural law. Articles 11 to 13 of the Statute contain a list of crimes which is almost identical to the respective list contained in arts 6 to 8 of the ICC Statute. The Statute of the Iraqi Special Tribunal contains in article 14 only three additional offences drawn from Iraqi criminal law, i.e. manipulation of the judiciary, squandering of public resources and abusive pursuit of policies that might lead to war against an Arab country. In respect of the general principles which govern the proceeding before the Iraqi Special Tribunal the Statute mostly follows established international standards. It enshrines the ne bis in idem principle and it provides for the responsibility of the accomplice and the superior and excludes superior orders as defense. In its organizational structure the Iraqi Special Tribunal follows that of the ICC, namely by providing for Pre-trial, Trial and Appeal Chambers. A strong Prosecution and a Department for Administration were also established. Finally, the Statute of the Iraqi Special Tribunal establishes that the former enjoys primacy vis-à-vis domestic Iraqi courts. In that respect it follows the example of the ICTY and the ICTR rather than of the ICC. One of the main differences between the Iraqi Special Tribunal and the international or mixed tribunals rests in its composition.97 The Statute provides that the judges shall be Iraqi nationals to be selected by the Iraqi government (Governing Council)98 and that expert assistance would be provided by non-Iraqis.99 This composition of the Tribunal does not harmonize with the fact that the criminal law as well as the 96 97 98 99 See L.A. Dickinson, “The Promise of Hybrid Courts”, AJIL 97 (2003), 295 et seq. (296-298). Critical in this respect M.P. Scharf, “Is It International Enough? A Critique of the Iraqi Special Tribunal in Light of the Goals of International Justice”, Journal of International Criminal Justice 2 (2004), 330 et seq. Article 28 and article 5 lit. (c) of the Statute, although the Governing Council, if it deems necessary, may appoint non-Iraqi judges in accordance with article 4 lit. (d) of the Statute. Articles 6 lit. (b) and 7 lit. (n) of the Statute; the role of foreign advisers is quite unclear. 30 Max Planck UNYB 9 (2005) procedure – apart from the sentencing standards100 – will be international in nature rather than Iraqi.101 The Iraqi Special Tribunal is different from most international and mixed tribunals by its jurisdiction ratione temporis which exceeds by far that of the other comparable tribunals. It covers the events from 17 July 1968 (date of the coup d’état by the Ba’ath Party) to 1 May 2003 (declaration of the “end of major hostilities”).102 In comparison the jurisdiction of the ICTY covers crimes from 1991 to the present, that of the ICTR crimes which took place in 1994, that of the Special Court for Sierra Leone the time from 1996 to the present and the one of the ECCC the time from 1975 to 1979. The only exception is the SCOPET which is vested with unlimited temporary jurisdiction although in practice all investigations seem to address crimes committed around the 1999 referendum.103 The jurisdiction ratione temporis of the Iraqi Special Tribunal does not match with the law it is meant to apply. The jurisdiction ratione temporis covers three major military campaigns (the 1980-1988 IranIraq war, the 1990-1991 Gulf War and the War of 2003), and the crimes committed in the context of them. In this respect the applicable criminal law is appropriate. It is less appropriate in respect of atrocities committed by the Ba’ath party regime unrelated to an armed conflict such as repression of political opponents and human rights abuses unless they amount to genocide or crimes against humanity. More generally it is an open question whether the prosecution of human rights abuses and the oppression of political opponents, unless they amount to genocide or crimes against humanity, is not in violation of the principle that criminal law cannot be applied retroactively. Given the jurisprudence of the 100 101 102 103 Article 24 of the Statute generally refers to Iraqi sentencing standards, but instructs consideration of international precedents in relation to offences having no counterpart under Iraqi law. This may be compared with article 24 of the ICTY Statute. The possibility to apply the death penalty departs from the model applied in international or mixed tribunals. Critical in this respect Y. Shany, “Does One Size Fit All? Reading the Jurisdictional Provisions of the New Iraqi Special Tribunal Statute in the Light of the Statutes of International Criminal Tribunals”, Journal of International Criminal Justice 2 (2004), 338 et seq. (341 et seq.). Article 1 lit. (b) of the Statute. S. Katzenstein, “Hybrid Tribunals: Searching for Justice in East Timor”, Harvard Human Rights Journal 16 (2003), 245 et seq. (274); critical in respect of the jurisdiction ratione temporis of the Iraqi Special Tribunal, Shany, see note 101, 340, 341. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 31 International Military Tribunal of Nuremberg one may question whether, until the jurisprudence of the ICTR, the crime against humanity does not require a nexus to an armed conflict.104 This view has been consolidated in the latter sense only in the jurisprudence of the ICTY and the ICTR. Equally it was only this jurisprudence which provided for the application of war crimes designed for international conflicts to non-international conflicts.105 This may be of particular relevance for serious crimes committed against parts of the Iraqi population without amounting to crimes against humanity or genocide. In this context it is worth noting that the Statute of the Iraqi Special Tribunal contains no clear reference to the nullum crimen, nulla poena sine lege principle.106 Furthermore the Statute of the Iraqi Special Tribunal differs from the International Military Tribunal as far as it concerns the crime of aggression. The former may, in accordance with article 14 lit. c of the Statute prosecute the “abuse of position and the pursuit of policies that may lead to the threat of war or the use of armed forces of Iraq against an Arab country …”. This crime has been taken from the Iraqi criminal law. In general, one has to conclude that the Iraqi Special Tribunal constitutes an ill-conceived attempt to work off the crimes committed by the former governmental regime of Iraq. The initiators wanted to avoid this Tribunal being seen as the executor of victor’s justice without, however, leaving the establishment of that Tribunal to Iraq. The result is a national tribunal with some elements borrowed from international criminal law which will be considered as a special court to serve only one purpose. The court violates the basic principle also enshrined in international criminal law, namely, the prohibition to apply criminal law retroactively. 104 105 106 Article 5 of the Statute of the ICTY requires such nexus whereas the Secretary-General’s Report on Aspects Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, ILM 32 (1993), 1159 et seq. (1173), held such a nexus not to be necessary; in favor of the latter G. Dahm/ J. Delbrück/ R. Wolfrum, Lehrbuch des Völkerrechts I/3, 2002. The first judgment to do so was the decision on jurisdiction in the Tadić Case by the Appeals Chamber, IT-94-1 AR 72 of 2 October 1995. Shany, see note 101, 344, 345 discusses whether it may be introduced through the reference to Iraqi law. 32 Max Planck UNYB 9 (2005) 5. From the Interim Governing Council to the Interim Government a. Establishment of the Interim Government On 15 November 2003 the Interim Governing Council and the CPA concluded an agreement on the timetable and program for the drafting of a new constitution and holding of elections under that constitution as well as on a course of action to restore Iraq’s sovereignty and to end the occupation by 30 June 2004. This agreement stipulated that, through a CPA-supervised process of caucuses held in the 18 governorates of Iraq, a Transitional National Assembly was to be established by 31 May 2004 and that this Assembly would then elect an executive branch and appoint ministers. The agreement also set forth a specific timetable for the constitutional process. The elections were held on 31 January 2005 for a constitutional convention which has to elaborate a constitution to be approved in a referendum. The Assembly is meant to provide the draft of a permanent constitution by 15 August 2005. This draft is to be presented for general referendum no later than 15 October 2005. Article 61(c) of the Transitional Administrative Law provides that a permanent constitution can be ratified if a majority of the voters in Iraq approved it and if two thirds of the voters in three or more of Iraq’s eighteen governorates do not reject it. This provision modifies the decision-making process for the referendum in favor of the major minority groups in Iraq. According to this road-map national elections for a new Iraqi government will be held, based on the new constitution, by 31 December 2005. The Security Council endorsed the formation of a sovereign Interim Government for Iraq107 and welcomed the end of occupation from 30 June 2004. Security Council Resolution 1546 endorsed the date for elections on 31 January 2005, the formation of a Transitional National Assembly to draft a constitution and the 31 December 2005 date for the election of a constitution-based government. Resolution 1546 further reconfirms the presence of the Multinational Force under unified command. The Security Council considers the presence of the Multinational Force as being justified by a respective request of the Interim Government.108 In that respect reference is made to two corresponding letters from the Prime Minister of the In107 108 S/RES/1546 (2004) of 8 June 2004, operative para. 1. Ibid., para. 9. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 33 terim Government of Iraq and the U.S. Secretary of State in which the Prime Minister requests the mandate of the Security Council for the presence of the Multinational Force to the conditions set out in the letter of the Secretary of State. The Multinational Force has the task to take all necessary measures to ensure safety and stability in Iraq. Its mandate will be reviewed after twelve months or if the Government of Iraq so requests.109 A special unit within the Multinational Force was set up which has the task of protecting the UN activities in Iraq. b. Law of Administration/ Interim Constitution On 8 March 2004 the Iraqi Governing Council signed the so-called Law of Administration for the State of Iraq for the Transitional Period, which is the new Iraqi interim constitution and serves from 30 June 2004, when the CPA returned the governmental functions. This law also provides a framework for continued co-operation among Iraq and the members of the Coalition. The law will expire after a permanent constitution has been approved and elections have been held. The Law of Administration has all the features of a national constitution: supremacy in respect of all other national legal norms; a particular procedure for amendment; the establishment of the governmental structure for Iraq; a catalogue of fundamental rights etc. In respect of fundamental rights the Law of Administration provides for the respect of individual human rights. The respective catalogue of human rights, in general, reflects international human rights standards. The Iraqi Interim Government consists of the National Assembly, the Presidency Council, the Council of Ministers (including the Prime Minister), and the judicial authority. The system is to be republican, federal, democratic with a separation of powers.110 Two particularities are to be mentioned in the context of this article. According to article 7 of the Law of Administration, Islam is the official religion of the state and to be considered a source of legislation. This formula follows an approach contrary to the one in Western European states, which pro109 110 The respective operative para. 12 reads: “Decides further that the mandate of the multinational force shall be reviewed at the request of the Government of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this mandate earlier if requested by the Government of Iraq.” Article 4. Max Planck UNYB 9 (2005) 34 vide for a separation of state and religion – and even goes further than the respective formula in the Afghan constitution.111 The other particularity is the confirmation of the establishment of the Iraqi Special Tribunal.112 Apart from the road-map already referred to, neither Security Council Resolution 1546 nor the Transitional Administrative Law provide for details about the process concerning the drafting of the constitution. One significant guiding principle has been formulated. According to article 60 of the Transitional Administrative Law, the National Assembly must carry out its constitution-writing responsibility “in part by encouraging debate on the constitution through regular general public meetings in all parts of Iraq and through the media, and receiving proposals from citizens of Iraq”. The same idea is reflected in Security Council Resolution 1546 which states that the Special Representative of the UN Secretary-General and the United Nations Assistance Mission for Iraq, “as requested by the government of Iraq” shall promote national dialogue and consensus building on the drafting of a national constitution by the people of Iraq.113 This indicates two elements of the constitution-making process; it rests in the responsibility of Iraq and must not be driven from the outside. The constitution-making for Afghanistan followed the same approach. Further, the process is to be an all embracing one and to include the population as such, namely the civil society. Whether there exists such an Iraqi civil society in the meaning used in West-European societies is a different matter. One cannot exclude that, in practice, this opens the constitution-making process to non-Iraqi dominated or, at least influenced groups, and thus runs counter to the first guiding principle, namely that the constitutionmaking process is the responsibility of Iraq. c. The Interim Government of Iraq – Sovereign and Independent? aa. Introduction In the first preambular paragraph, Resolution 1546 welcomes “... the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent Interim Government of Iraq by 30 June 2004”. It is doubtful whether this qualification is cor111 112 113 See the contribution of E. Afsah/ A.H. Guhr, in this Volume. Article 48. S/RES/1546 (2004) of 8 June 2004, operative para. 7 (a) (iii). Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 35 rect, given the restrictions the Interim Government of Iraq faces in respect of security issues and in respect of the laws, regulations, orders and directives issued by the CPA. According to the well known dictum of Judge Huber in the Arbitral Award on the Island of Palmas Case “… sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the function of a state.”114 It is generally accepted that national sovereignty has undergone significant modifications due to the constraints international law places on the freedom of action of states. However, the constraints imposed upon the Interim Government of Iraq and thereafter the Transitional Government of Iraq do not derive from rules developed by the community of states in a process Iraq was able to participate in. The restraints the Iraqi government is under are those of the Coalition. Neither the Interim nor the Transitional Government of Iraq can be qualified as having the prime responsibility for the conduct of governmental affairs in Iraq. As long as this has not been achieved Iraq must be considered to remain – in spite of pronunciations to the contrary – under belligerent occupation.115 Note should be taken that the restraints of the Iraqi government also devolve from the respective Security Council Resolutions. Only as far as the management of oil resources and revenues based thereon are concerned has the Interim Government regained some freedom.116 The restrictions concerning security issues reflect the real situation. The Interim Government lacked some of the competences required for it to be considered sovereign. Apart from that the Interim and the Transitional Government must not take decisions affecting Iraq’s destiny beyond the limited interim period. bb. Restoration and Maintenance of Security in Iraq under the Interim and the Transitional Government and the Status of the Multinational Force The question concerning restoration and maintenance of security in Iraq is closely linked to the functions of the Multinational Force in Iraq. Two issues are decisive concerning the Multinational Force in Iraq: the basis of its continuous presence and the decision concerning 114 115 116 RIAA Vol. 2 (1949), 829 et seq. This view is shared by Roberts, see note 11, 41 et seq. See above. 36 Max Planck UNYB 9 (2005) its engagement. Both issues are regulated by S/RES/1546. The respective provisions concern the issues which were discussed most controversially. The Security Council assumes – as has been indicated already – that the presence of the Multinational Force117 in Iraq is based upon the “request of the incoming Interim Government”.118 Therefore the Security Council reaffirms the authorization for the Multinational Force. This wording in fact changes the basis for the presence of the Multinational Force and its very nature. Whereas the authorization of the presence of such force in S/RES/1511 was solely based upon the competencies of the Security Council under Chapter VII of the UN Charter (“to take all necessary measures to contribute to the maintenance of security and stability in Iraq ...”), and thus the Multinational Force has to be considered a force falling under Article 48 of the UN Charter, its presence is now based upon the request of the Interim Government. This renders the Multinational Force technically a peace-keeping force albeit with a robust mandate. The connection between the former authorization and the new one is established through the word “reaffirms” in para. 9 of S/RES/1546, which is constructively ambiguous enough to allow also the interpretation that the basis for the presence of the Multinational Force in Iraq remains, at least partially, S/RES/1511 (2003) 119 and thus Chapter VII of the UN Charter. The litmus test for the position of the Interim Government of Iraq in this respect, that is to say its sovereignty and independence as far as security is concerned, is whether the mandate of the Multinational Force would automatically be terminated upon the request of the Interim Government; this would mean that a respective resolution of the Security Council ending the mandate of the Multinational Force would be of a merely declaratory nature.120 This alternative would be the logical one since, according to S/RES/1546 para. 9, the presence of the Mul- 117 118 119 120 Within this “Multinational Force” shall exist a “distinct entity” to provide security for the UN presence (see operative para. 13 of S/RES/1546). S/RES/1546 (2004) of 8 June 2004, operative para. 9. See the statements made in this respect. Operative para. 12 of S/RES/1546 reads: “Decides further that the mandate of the multinational force shall be reviewed at the request of the Government of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this mandate earlier if requested by the Government of Iraq.” Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 37 tinational Force is based upon the request of the incoming Interim Government. That being the case the Interim Government should have the power to terminate the mandate. The alternative would be that, irrespective of such a request, the Security Council could argue that the necessary degree of stability in Iraq had not been achieved at the moment the request was made and therefore could decline such a request. It goes without saying that, if such decision of the Security Council were made and implemented, the nature of the Multinational Force would change back from a peace-keeping force being established with the consent of the state concerned to an interventionist force having its basis in Article 48 UN Charter. It is a further question whether the wording of para. 12 of S/RES/1546 excludes the possibility of a veto. According to S/RES/1546 a request to withdraw the Multinational Force can be launched by the Government of Iraq, not the Interim Government.121 Taken literally this could be read to mean that the request for review may only be made by the Government of Iraq enjoying democratic legitimacy. The Prime Minister of Iraq in his letter, attached to Resolution 1546, though, refers to the Transitional Government in this respect.122 This wording seems to indicate that the Transitional Government may claim the right to initiate the review of the presence of the Multinational Force, but it does not include the Interim Government. Apart from the wording on the review of the presence of the Multinational Force in Iraq, this provision, in respect of the expiry of the mandate, should be taken into account. Para. 12 in connection with para. 4 of S/RES/1546 states that the mandate of the Multinational Force will expire when a constitutionally elected Government of Iraq has been established, namely by 31 December 2005. This expiry is an automatic one; no further decision of the Security Council is needed in this case to terminate the mandate of the Multinational Force. This is logical. The Security Council has entrusted the Coalition to work for the establishment of a representative government which can only mean a government which has been democratically legitimized. Only such government – this is the presumption – will constitute the stabilizing factor which guarantees peace and security in the region. Until then this guarantee has to be provided for by 121 122 See the wording of para. 12, above. The Government requests the Security Council to review the mandate of the Multinational Force at the request of the Transitional Government of Iraq, or twelve months from the date on which this resolution was adopted. 38 Max Planck UNYB 9 (2005) the Multinational Force. It goes without saying that such a government of Iraq could ask for the further presence of the Multinational Force. Taking the provisions in connection with the presence of the Multinational Force together with the reference in the second line of para. 12 of S/RES/1546 to “Government of Iraq” they cannot refer to the democratically elected government only. The government of Iraq does not have to request the review of the presence of the Multinational Force the presence of the latter ends automatically. Therefore this terminology can only mean to refer to the Transitional Government. This would harmonize Security Council Resolution 1546 with the wording of the letter of the Prime Minister of Iraq to which this Security Council Resolution equally refers. Thus before the establishment of a “constitutionally elected government”, as para. 4 (c) terms it, the Interim Government of Iraq could not request the review of the mandate of the Multinational Force. The Security Council has committed itself to terminate the mandate of the Multinational Force, if so requested by the Transitional Iraqi Government. This means, however, that the Security Council would have to adopt a resolution to terminate the mandate of the Multinational Force if it acted upon such a request which confirms that the Multinational Force is considered technically as a peace-keeping force. This also rules out a veto against such a resolution requested by the Transitional Government of Iraq. A further question in this respect is whether and to what extent the Interim Government of Iraq and thereafter the Transitional Government have been able to influence the military activities of the Multinational Force. The respective rules are contained in para. 11 of S/RES/1546 and in the two letters attached to the Resolution. They reflect a two tier approach. The Iraqi Interim Government has committed itself to develop, with the assistance of the Multinational Force, its own security forces as well as fora to co-ordinate the activities of the Iraqi forces and of the Multinational Force. These fora are also meant to allow for reaching agreement on the policy concerning “sensitive offensive operations”. The influence of the Interim Government on the military activities of the Multinational Force is an indirect one based upon procedure and the formulation of guidelines or policies. The reference to a “security partnership” in this context, thus, is a euphemism and meant to camouflage the fact that the Iraqi Interim Government will not be in a position to influence directly concrete military decisions of the Multinational Force. The role of the Transitional Government is not Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 39 enhanced, although with the buildup of Iraqi forces, its influence will increase de facto. To sum up, the sovereignty of the Interim Government of Iraq concerning security issues has been significantly limited as far as the presence of the Multinational Force in Iraq is concerned as well as concerning its military activities. In respect of the former aspect the role of the Transitional Government is stronger since it may request the withdrawal of the Multinational Force. This will also improve its standing and influence regarding concrete military activities of the Multinational Force. The nature of the Multinational Force oscillates between a peace-keeping force with a robust mandate and an intervention force. cc. General Restraints imposed upon the Interim and the Transitional Government by the Security Council As indicated above, the governments of Iraq are not only restrained by the remaining presence of the coalition in Iraq and the dominance of the latter as far as security issues are concerned but also by the resolutions of the Security Council. These restraints are mostly of a general nature – with the exception of the use of natural resources. Nevertheless, they reflect the position of the Security Council concerning the future development of Iraq. The Security Council emphasizes that “the sovereignty of Iraq resides in the State of Iraq”.123 This means that the Coalition and the governments of Iraq have only a temporary mandate and must not take decisions which affect Iraq’s future beyond the limited interim period. This later point is reiterated explicitly in operative paragraph 1 of S/RES/1511 (2003). All Security Council Resolutions reaffirm the independence, sovereignty, unity and territorial integrity of Iraq.124 This excludes any fragmentation of Iraq. This does not rule out, though, the establishment of a federal system.125 123 124 125 See S/RES/1511 (2003) of 16 October 2003, second preambular paragraph. See S/RES/1483 (2003) of 22 May 2003; 1500 (2003) of 14 August 2003; 1511 (2003) of 16 October 2003 and 1546 (2004) of 8 June 2004. In S/RES/1546 (2004) of 8 June 2004 the Security Council endorsed the commitment of the Interim Government to work towards a “federal, democratic, pluralist, and unified Iraq”. 40 Max Planck UNYB 9 (2005) The Security Council also reaffirmed the right of the Iraqi people “freely to determine their own political future”.126 In the context in which this principle is placed it clearly goes beyond democratic elections. This refers to the constitution-making process which has to be under the responsibility of an institution which derives its legitimacy from general elections in Iraq. For these reasons the elections for a Transitional National Assembly which took place on 30 January 2005 were of particular relevance.127 On that basis the first operative paragraph of S/RES/1546 is to be interpreted which emphasizes that the Interim Government shall refrain “from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office …”. The Coalition Provisional Authority has interpreted this constraint as limiting the Interim Government’s power to conclude treaties. In fact, on the basis of this provision in S/RES/1546, one has to conclude that the powers of the Interim Government did not exceed the ones of the occupying forces under international humanitarian law. It is another question, though, whether and to what extent the powers of the Transitional Government go beyond the ones of the Interim Government. This government has as a basis of legitimacy the elections of 30 January 2005, but it still lacks a constitutional basis, that is to say a constitution accepted by the Iraqi population. Therefore this government is restrained from taking actions which can be left to an Iraqi government formed on the basis of elections after an Iraqi constitution has been adopted. The Security Council refrained from giving specific indications concerning the content of the future Iraqi constitution. It has, however, emphasized the importance of the rule of law, national reconciliation, respect for human rights including the rights of women, fundamental freedoms, and democracy including free and fair elections.128 This may be considered to refer, albeit in a very general form, to the Agenda for Democratization.129 126 127 128 129 S/RES/1511 (2003) of 16 October 2003; 1546 (2004) of 8 June 2004, preamble. See the Report of the Secretary-General pursuant to operative para. 30 of S/RES/1546 (2004) of 8 June 2004, Doc. S/2005/141 of 7 March 2005. S/RES/1546 (2004) of 8 June 2004. Supplement to Report Doc. A/50/332 and A/51/512; on this see the second contribution of R. Wolfrum, in this Volume. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 41 dd. Management of Natural Resources According to paras 24 to 26 of S/RES/1546 the Interim Government assumes, upon the dissolution of the CPA, the responsibility concerning the above-mentioned Development Fund for Iraq. However, the restrictions imposed upon Iraq by para. 20 of S/RES/1483 of 22 May 2003 continue to apply. This means that all sales of oil and gas are monitored internationally and that the proceeds from all such sales have to be deposited in the Development Fund for Iraq or in the also abovementioned Compensation Fund. The International Advisory and Monitoring Board will be enlarged by including a member nominated by the Interim Government of Iraq. This, at least, gives it the possibility to voice its interests in the procedure. As far as the continuing mandate of the Board is concerned S/RES/1546 adopts a similar but not an identical procedure as for the mandate of the Multinational Force. According to para. 25 the mandate of the Board expires definitely with the establishment of a democratically elected Iraqi Government. But the mandate may be reviewed at the request of the Interim Government or twelve months from the date of the resolution. However, the Security Council does not commit itself to terminate that mandate earlier even if the Interim Government of Iraq so requests.130 The Interim Government of Iraq equally assumes full responsibility concerning the Oil for Food Program.131 In spite of these restrictions, the Interim Government has taken over the responsibilities from the CPA at least in respect of the assets of the Development Fund. That these funds are used predominantly for the development of Iraq has been insured by upholding the immunity of such funds against proceedings against the former government of Iraq. This provides the Interim Government with the necessary means to actively engage in the establishment and development of Iraq and its infrastructure. ee. Continuation/ Discontinuation of Norms Issued by the CPA Before handing over its responsibilities to the Interim Government, the CPA has issued Order No. 100 of 28 June 2004 which provides for the transition of laws, regulations, orders, and directives issued by the CPA. This Order is guided by two leading principles. All functions so 130 131 Operative para. 25 of S/RES/1546 (2004) of 8 June 2004. Operative para. 26 ibid. 42 Max Planck UNYB 9 (2005) far executed by the CPA devolve upon the Iraqi Interim Government. All norms issued so far by the CPA as amended in Order No. 100 remain in force unless amended or rescinded by legislation in accordance with the Law of Administration for the State of Iraq. This Order provides against the development of a vacuum but gives the Interim Government – at least after the establishment of the Parliament – the control over the normative order of Iraq. Nevertheless, the powers and functions of the Iraqi government are limited in this respect since the Law of Administration for the state of Iraq will serve as a constitution until a final one has been adopted. That means the Iraqi government will, in fact, only be able to control the normative order of Iraq after the elaboration and adoption of the Iraqi constitution. Although this procedure reflects the demands of reality in general, it is already now evident that, in particular as far as the economy of Iraq is concerned, decisions have been taken which will be difficult to revoke. These decisions are irreconcilable with international humanitarian law as well as the resolution of the Security Council emphasizing that it is the right of the Iraqi people freely to determine their own political future and control their own economic order.132 ff. International Responsibility for Actions Committed by Members of the Multinational Force after 30 June 2004 According to S/RES/1546 the Interim Government of Iraq is meant to assume “governing responsibility and authority ... by 30 June 2004”. Does this mean that, under the rules of state responsibility, henceforth the conduct of soldiers of the Multinational Force, including the private groups in its service, falls under the responsibility of Iraq? Article 6 of the ILC Articles on State Responsibility covers this situation. According to this provision it is essential whether organs, including military forces, are placed at the disposal of another state. Only in this case the conduct of these organs can be attributed to the receiving state. This requires that such organs act with the consent of the receiving state and in conjunction with the machinery of said state. This is not the situation envisaged for Iraq. As already outlined above, the Interim Iraqi Government may only exercise an indirect influence upon the military activities; its influence on all other activities is even more limited. From this it must be concluded that the Multinational Force is not placed at the disposal of Iraq. 132 S/RES/1511 (2003) of 16 October 2003, preamble. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 43 This is confirmed considering the status of the members of the Multinational Force as set out in the norms established by the CPA. According to CPA Order Number 17 (revised on 27 June 2004), which remains in force for the duration of the mandate of the Multinational Force, all personnel of the Coalition Forces, including their civil consultants, are immune from the Iraqi legal process.133 They are subject only to the jurisdiction of the sending state.134 Apart from that, the sending states retain the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on them by the law of that sending state over all persons subject to the military law of that state. Also, services and equipment contractors are not subject to Iraqi laws or regulations as far as their contracts are concerned and are immune in this respect from the Iraqi legal process.135 Although the possibility exists to waive immunity136 these rules confirm that the threshold of article 6 of the ILC Articles on State Responsibility has not been met. The Multinational Force cannot be considered to have been placed at the disposal of Iraq. On the same basis it cannot be argued that these forces have been placed at the disposal of the United Nations. Accordingly, any violation committed by their members will entail international responsibility of the sending state. III. Conclusions The following conclusions may be drawn from the experience with the occupation of Iraq. The principle governing the transition of Iraq from the former governmental regime via the power exercised by the occupying states to a government under a new national regime is the principle of self-determination. This obliged the occupying powers to establish a transition process from belligerent occupation to full sovereignty exercised by a democratically elected and representative government for Iraq. This has been emphasized frequently by the Security Council in stressing the right of the Iraqi people to freely determine their own political future. In spite of the rhetoric to the contrary, the role of the Security Council concerning the post-conflict period of Iraq was limited. It has issued resolutions emphasizing several principles relevant for the 133 134 135 136 Section 2, para. 1. Section 2, para. 3. Section 4. Section 5. 44 Max Planck UNYB 9 (2005) administration of Iraq by the occupying powers and on the transitional process leading to a new governmental regime in Iraq. They have reconfirmed the sovereignty and territorial integrity of Iraq, thus indicating that the Security Council would not accept a fragmentation of Iraq or the occupation of parts thereof by other states. This did not rule out, though, that a future constitution for Iraq would provide for a decentralized governmental system vesting territorial units with some even significant autonomy so as to accommodate ethnic or religious diversity. All resolutions of the Security Council dealing with the postconflict period of Iraq give some explicit guidance as to the future governmental system. In that respect they limit the Coalition as well as the Interim and the Transitional Government of Iraq. The final Government of Iraq is to be based on the free decision of the people of Iraq; it is to be representative, based upon the rule of law and affording equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender.137 In respect of the latter topic reference is made to S/RES/1325 (2000) of 31 October 2000 calling, amongst other things, upon the Member States of the United Nations to increase the number of women in national institutions at all levels. It is astonishing that S/RES/1483 refrains from explicitly referring to democracy as the governing principle for the future constitution – the term “representative government” may be taken only to refer to a government which is representative in regard of the composition of the Iraqi population as far as ethnicity, religion and gender is concerned; equally there is no explicit reference to the protection of human rights according to international standards. This may be due to the expressed desire of representatives of the Iraqi society that “democracy should not be imposed from the outside”.138 Nevertheless, the Interim Government of Iraq as well as the Security Council are striving for a governmental regime in Iraq based upon democratic elections whose powers are defined by a permanent constitution. This is, according to S/RES/1546 para. 4 in connection with para. 12, the condition under which the Security Council considers the further presence of the Multinational Force as being unnecessary. Thus Iraq is a clear-cut case where attempt is being made to pro- 137 138 S/RES/1483 (2003) of 22 May 2003, fifth preambular paragraph. Report of the Secretary-General, see note 93, para. 19. Wolfrum, Iraq – from Belligerent Occupation to Sovereignty 45 vide for peace through the establishment of a constitution based on democracy.139 The post-conflict situation and the development of a representative and democratically elected government took place under the guidance of the Coalition. It acted on the basis of a vaguely phrased mandate of the Security Council. Such an approach is equivalent to the approach followed by S/RES/678 (1990) of 29 November 1990, referred to as action taken by a coalition of the willing acting under a mandate of the international community. Whether such an approach recommends itself for post-conflict management is a question which deserves further scrutiny.140 139 140 As to the relationship between self-determination and democracy see the second contribution of R. Wolfrum, in this Volume. Ibid. Civilization and the Mandate System under the League of Nations as Origin of Trusteeship Nele Matz I. II. The Origin of Trusteeship Concepts in International Law: Introduction From Colonial Rule to Mandates: Perspectives on Colonization and Decolonization 1. The End of World War I 2. Colonial Rule and International Law a. Colonialism and the Right to Self-Determination at the Time of the League of Nations b. The Linkage between Sovereignty and Civilization in 19th and early 20th Century Theory and Practice c. Approaches to Different Standards of Civilization d. Implications for Current Policies III. Structure and Function of the Mandate System 1. Governing Principles: Non-Annexation and “Sacred Trust” 2. Establishment and Classification of Mandates 3. The Main Institutional Features of the Mandate System 4. The Example of German South West Africa (Namibia) a. The Controversy about the Status of Namibia as a Mandated Territory: The Question of Sovereignty b. The Termination of the Mandate c. Namibia’s Independence d. UNTAG as a Model for State-Building? e. League of Nations and UN involvement in the Issue of Namibia: A Brief Conclusion IV. From Mandates to Trusts V. Conclusions: Are there Lessons to be Learnt from the Mandate System? 1. Institutional Conditions 2. The Legal Dimension 3. Perceptions of Foreign Authority and Ressentiments Annex: Article 22 Covenant of the League of Nations A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 47-95. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. 48 Max Planck UNYB 9 (2005) I. The Origin of Trusteeship Concepts in International Law: Introduction The Trusteeship System of the United Nations as established by Chapter XII and XIII of the UN Charter was designed as a mechanism to safeguard stability in a territory’s transitional process of attaining selfgovernance. The importance of stability in state-building and nationbuilding processes1 and the fundamental difficulties experienced when attempting to compel a Western understanding of democracy on societies with a distinct history, different cultural values and religious beliefs is inter alia reflected by the present situations in Afghanistan and Iraq. Despite long years of struggle to establish self-government and democracy either in states in which the former government was overthrown by armed conflict or in territories that were former colonies, the UN Trusteeship System is to some extent a victim of its own success. With the independence of Palau, the last UN Trust Territory, on 1 October 1994 the Trusteeship Council suspended operation a month later.2 One of the recommendations made by the High-level Panel on Threats, Challenges and Change in its report on the reform of collective security and the UN proposes the deletion of Chapter XIII, i.e. the final and formal abolition of the Trusteeship Council.3 As the reason for this recommendation the High-level Panel states that the Trusteeship Council assisted with ending the era of colonialism and steered many successful cases of decolonization, but that it was time for the United Nations to formally turn its back on any references to colonialism and 1 2 3 Although often used interchangeably in legal and political writing on the issue, state-building and nation-building differ according to their relevant objects, their purposes and the means employed to achieve the relevant aims. See the contribution by A. von Bogdandy et al., in this Volume. This, however, does not mean that colonialism in the broader sense of foreign authority over non-self governing territories had ended completely. Yet, in contrast to the era of colonialism the circumstances as well as international perception of such administration are different, particularly because of the general recognition of a right to self-determination for all peoples, and cases of foreign administration are considerably fewer. Report of the High-level Panel on Threats, Challenges and Change – A More Secure World: Our Shared Responsibility, Doc. A/59/565, para. 299. Matz, Civilization and the Mandate System under the League of Nations 49 to counter any potential attempts to return to such mentalities by abolishing the Trusteeship Council.4 Nevertheless, the experiences made with UN trusts may serve either as examples of how to assist a nation with the establishment of stable structures of democratic self-governance or of what mistakes should be avoided. However, to draw practical conclusions for the future of statebuilding, it is important to also examine the historical development of the administration of territories on the way to eventual self-government prior to the foundation of the United Nations. The UN trusteeship approach was not the first attempt undertaken by the international community to stabilize emerging states in times of their establishment, particularly, in the process of decolonialization. In addition to some approaches to international territorial administration prior to World War I,5 the League of Nations elaborated a so-called “Mandate System” to govern non-self-governing entities and to supervise powers performing colonial and post-colonial administration in such territories.6 4 5 6 Ibid. As a consequence of this recommendation, it is questionable whether a proposal made by the Secretary-General in 1997, Report of the SecretaryGeneral – Renewing the United Nations: A Programme for Reform, Doc. A/51/950, will be pursued in the future. In para. 85 of this report the Secretary-General had recommended the possible transformation of the Trusteeship Council into a forum through which Member States could exercise collective trusteeship for the global environment. E.g. the General Treaty for the Re-Establishment of Peace between Austria, France, the United Kingdom, Prussia, Sardinia, Turkey and Russia, the so called “Treaty of Paris”, 1856, CTS Vol. 114, 409 et seq., that created the European Danube Commission. On further examples before and after World War I see B. Deiwert, “A New Trusteeship for World Peace and Security: Can an Old League of Nations Idea be Applied to a Twenty-first Century Iraq?”, Ind. Int’l & Comp. L. Rev. 14 (2004), 771 et seq. (781 et seq.). The existing literature on the League of Nation’s Mandate System is extensive and ranges from a large number of early monographies such as Q. Wright, Mandates under the League of Nations, 1930, which must be considered the most comprehensive work in this field; D. Hall, Mandates Dependencies and Trusteeship, 1948; C.L. Upthegrove, Empire by Mandate, 1954; to more recent articles that attempt to analyze different aspects of the system, e.g. A. Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations”, N.Y.U.J. Int’l L.& Pol. 34 (2001), 513 et seq. This paper does not aim to examine the body of literature on mandates in toto. It shall rather 50 Max Planck UNYB 9 (2005) The main underlying philosophy of the Mandate System itself can be traced back to the trusteeship concept established under British law and is to a certain extent analogous to the concept of tutelage or guardianship known from private law.7 In international relations the idea of administering over-sea territories as trusts developed mainly in regard to British colonial policy during the late 18th century and was more widely explored during the 19th century.8 The question whether different models for political trusteeship offer solutions to current difficulties, e.g. with regard to the governance of so-called “failed states” has resurfaced in recent years.9 The experiences with the League of Nations Mandate System as one of the first international concepts of political trusteeship modeled on a common law trust serve as a background to the UN Trusteeship System. To some extent the Trusteeship System was a “natural evolution”10 of the Mandate System. Due to the historical setting at the times of their respective creation, the two systems differ in regard to their more specific aims. While the Mandate System cannot be analyzed without taking into account the colonial realities at that time and closely related allegations that some societies were not yet developed or civilized enough to determine their political fate by themselves, the Trusteeship System in times of its operations understood itself as a stabilizing, albeit only temporary institution to assist with the establishment of structures for self-government, without denying the general capacity of and right to self-determination. Although from our perspective today the Mandate System seems inseparably linked to the general policies of colonialism and to such colonial mentalities in particular that survived the first attempts to end colonial rule over certain territories between the two World Wars, the analysis of certain elements might shed some light on today’s success 7 8 9 10 serve as an introduction to and explanation of the developments of how the international community has been dealing with non-self-governing territories from the former colonies to the current situations in Kosovo or Iraq respectively. F. Ermacora, “Mandates”, in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, 1995, 871 et seq. (871). For a more detailed overview see Deiwert, see note 5, 773 et seq. See e.g. Deiwert, see note 5, 773 et seq. On political trusteeship models and their conceptions see also H.H. Perritt, “Structures and Standards for Political Trusteeship”, UCLA J. Int’l L. & For. Aff. 8 (2002), 385 et seq. Perritt, see above, 396. Matz, Civilization and the Mandate System under the League of Nations 51 and failure with state-building activities under foreign or international governance. This paper examines the reasons for as well as the function and structure of the historical League of Nations’ Mandate System with regard to its relevance for the UN Trusteeship System and for current state-building processes with international involvement or under international supervision. Particular weight is put upon the issue of civilization of peoples in its historical, i.e. colonial and post-colonial, and modern context and its relevance in international law. The paper first discusses the historical development from colonial rule to the beginning of the Mandate System (II.) and, in a second step, the structure and function of different types of mandates (III.). In this section, particular emphasis is put upon the international experiences made with the administration of the territory today governed by the state of Namibia, the former German South West Africa. This integrated case-study shall serve as an illustration of the general implications as well as of a malfunctioning of the Mandate System. In the section following the case-study the paper briefly addresses the development from mandates to trusts after the foundation of the United Nations (IV.). Some considerations on the question whether modern postconflict state-building can profit from the experiences with models for political trusteeship in general and the Mandate System in particular are summed up in the conclusions (V.). II. From Colonial Rule to Mandates: Perspectives on Colonization and Decolonization It is not the aim of this paper to give a detailed chronological overview of colonial history and the significance of the Mandate System as a cornerstone of this development.11 Instead, the following subsections attempt briefly to highlight the end of World War I as the political setting for the creation of the Mandate System by the League of Nations and 11 The establishment of the Mandate System can be classified as a cornerstone that marks the end of the second phase of the history of colonization, colonial rule and its gradual decline. The first significant event in the history of colonial rule was the Berlin West Africa Conference that consisted of a series of negotiations held between November 1884 and February 1885. The third phase is marked by the entry into force of the UN Charter in 1945. Max Planck UNYB 9 (2005) 52 then to discuss the various factors that enabled and required the leading powers to establish and operate a system dealing with former colonies. 1. The End of World War I During World War I it was realized that the maintenance of future peace depended to a significant extent upon an internationalization of colonial policy.12 After the war the question what should become of the colonies of the conquered belligerents led to controversies. To those victorious states that were themselves colonial powers such as the United Kingdom and France the former colonies of Germany and the Ottoman Empire were perceived as the spoils of war to be shared among the victors. In fact the United Kingdom, France, Russia, Japan and Italy had already agreed separately on the allocation of the enemies’ colonies with the clear aim of annexation to enlarge their respective territories.13 Hence, from the perspective of the victorious colonial powers it was clear that the former German and Ottoman colonies would remain colonies, albeit under different sovereign authority. The United States with their own colonial history of dependency from the English Crown and the long and painful struggle for independence were generally opposed to annexation of the colonial territories by the victors.14 By the United States’ political influence, particular by President W. Wilson’s programmatic approach to establish safeguards for future peace,15 the idea of – if not full and immediate at least 12 13 14 15 Upthegrove, see note 6. D. Rauschning, “Mandates”, EPIL III (1997), 280 et seq. (280). To justify colonial rule over the Philippines, the United States claimed not to pursue economic and imperial interests, but to assist the peoples with development on various levels. Such reasons for foreign government were repeated in the context of the Mandate System, although, as will be shown in particular in regard to class C mandates, the line between foreign assistance with the administration of a peoples’ territory and colonial rule is often difficult to draw. President Wilson elaborated a program of the so-called “Fourteen Points” that dealt with the establishment of a system of world peace and called for inter alia diplomacy, restrictions to armament, disarmament, unrestricted trade and freedom of navigation and the creation of a “league of nations”. Although Wilson’s ideas were to some extent pursued with the establishment of the League of Nations, his further requests only found a weak reflection in the League’s political and legal outset. Matz, Civilization and the Mandate System under the League of Nations 53 eventual or gradual – self-determination of societies and decolonization of dependent territories found its way into the political deliberations for post-war international relations. Before the United Nations was founded, it was again the US American President F.D. Roosevelt, who proclaimed together with the British Prime Minister W. Churchill that they would respect the right of all people to choose the form of government they wished to live under.16 However, at the time of the foundation of the League of Nations such a perspective was far from being a common understanding, despite first attempts to change colonial policies. The proposed change rather focused on finding compromise between existing and potential colonial powers to prevent possible acts of aggression against one another and not on the liberation of peoples from foreign domination, since the issue of controversy about over-sea territories was perceived a likely reason for future aggression and a threat to world peace.17 The origins of the League of Nations and the origin of the Mandate System are closely connected with the efforts of two men, Wilson who proposed the League of Nations on the one hand and the South-African General J.C. Smuts on the other. Smuts made the main proposals for the administration of territories under the supervision of the League of Nations that were to some extent incorporated into the Mandate System.18 However, originally Smuts had only envisaged a system of international control based upon non-annexation and self-determination for those territories formerly under domination of Russia, Austria and the Ottoman Empire. With regard to the former German colonies Smuts opposed any concepts of self-determination and clearly favored annexa16 17 18 The joint declaration known as the Atlantic Charter, 1941, is accessible online at <http://usinfo.state.gov/usa/infousa/facts/democrac/53.htm>, last visited 6 March 2005. P. Baker, “The Making of the Covenant from the British Point of View”, in: P. Munch (ed.), Les Origines et l’Œvre de la Societé des Nations, Vol. II, 1959, 16 et seq., (55 et seq.) states that there was no reason to explain why the question of mandates was considered of primary importance for a new order of peace and stability, since it was “universally agreed by all thinkers and politicians that rivalry in securing political control and trade privileges in backward parts of the world has been a prolific cause of international misunderstanding and trouble”. In his publication “The League of Nations – A Practical Suggestion”, which became known as the “Smuts Plan”, reprinted in: D.H. Miller, The Drafting of the Covenant, Vol. 2, 1928, 23 et seq., Smuts made the first concrete plans for trusteeship. 54 Max Planck UNYB 9 (2005) tion.19 Most likely, South-African interests in the territory of German South West Africa, which South-Africa had occupied in the course of the war, played a significant role in this distinction. The Mandate System that was developed and eventually established by the Covenant of the League of Nations (the Covenant)20 was a compromise to meet a political dilemma that comprised a variety of factors. The difficult political background to the creation of the Mandate System and the at least partially ambiguous response by the League of Nations justifies the question whether the Mandate System was designed to negate colonialism or to recreate it in an albeit different form and setting.21 Indeed the issue whether colonial authority should be maintained by different powers or whether some other form of foreign government was to be established was the crucial question after the peace negotiations at the end of World War I. Article 119 of the Versailles Peace Treaty 191922 withdrew authority over her former colonies from the German Reich by providing that: “Germany renounces in favour of the Principal Allied and Associated Powers all her rights and titles over her oversea possessions.” In a similar process the Ottoman Empire lost authority over her territories in Northern Africa. In order to inter alia prevent destabilization of the territories that were liberated from German and Ottoman colonial authority but considered to be not yet capable of self-government, the victorious powers established a kind of condominium over most of these former colonies.23 The League of Nations created a legal basis for agreement on administration of the relevant territories by establishing the Mandate System in one lengthy article of their newly adopted stat- 19 20 21 22 23 As Smuts stated in the “Smuts Plan”, ibid., 28, “the German colonies in the Pacific and Africa are inhabited by barbarians, who not only cannot possibly govern themselves, but to whom it would be impracticable to apply any idea of political self-determination in the European sense”. League of Nations, Pacte de la Societé des Nations/ Covenant of the League of Nations, 1932; an online version of the document in English is accessible at <http://www.ku.edu/carrie/docs/texts/leagnat.html>, last visited 6 March 2005. Anghie, see note 6, 568. CTS Vol. 225, 188 et seq. Some territories formerly under Turkish rule, e.g. Armenia and Kurdistan, never became mandates. Matz, Civilization and the Mandate System under the League of Nations 55 ute: article 22 of the Covenant.24 In its para. 1, article 22 of the Covenant emphasizes as one of the core principles the well-being and development of peoples living in those colonies that as a result of the war have lost their former colonial sovereign as a sacred trust of civilization. The central provision for the legal concept of the Mandate System is established by para. 2 that refers to the notion of sacred trust: “The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experiences or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.” Although decolonization is not explicitly referred to, the overall concept expressed by article 22 of the Covenant may be regarded as the first manifestation of the ultimate goal to abrogate the colonial system that was still being pursued by many European states. A reflection of the goal to end colonialism is that the Mandate System does not explicitly promote continued or new colonial power. The circumstance that colonial powers had to give up their legal position and transfer structures into a regulated mandate or trusteeship is one of the most important issues in the decolonization process, although it is only a first step on the way to self-government of formerly dependent territories. Additionally, the Mandate System distinguishes different stages of development and links them to potential self-determination for the most developed, thus allowing a process of gradual self-government to at least some societies.25 This first legal attempt to initiate a process of decolonization later found further elaboration in Chapters XI and XII of the UN Charter and the Decolonization Declaration of the UN General Assembly.26 24 25 26 Article 22 is reprinted as an Annex to this article. Article 22 para. 4 Covenant relates to the former Ottoman colonies that are perceived as developed enough to only require some assistance by a Mandatory until “they are able to stand alone” and recognizes their independence on a provisional basis. Yet, the distinction between different territories and different degrees of self-determination has rightly been criticized as inconsistent and arbitrary, see D. Raič, Statehood and the Law of SelfDetermination, 2002, 196. Declaration on the Granting of Independence to Colonial Countries and Peoples, A/RES/1514 (XV) of 14 December 1960. Max Planck UNYB 9 (2005) 56 At the same time, the Mandate System may be perceived as an instrument of imperial power policy,27 because it continued the practice of foreign rule over the former colonies based upon an assessment of capability and civilization according to the leading states’ perspectives on African and Asian peoples. In contrast to the formal principles one might even state that some of the victors actually increased the size of their overseas empires without any serious commitment to leading the native population to obtain control over their political future.28 These two perspectives on the same system – progress in a decolonization process on the one hand and manifestation of imperial rule over peoples on the other – most precisely reflect the compromise-like character of the Mandate System. In order to better understand the further underlying reasons for the establishment of mandates for government over peoples in African and Asian territories after the end of World War I, a variety of interrelated issues has to be discussed and put into perspective and relation, namely the relation between colonial rule and international law, the evolution of a right to self-determination and different standards of civilization. 2. Colonial Rule and International Law The relationship between colonialism and international law comprises a variety of further legal and political issues. Definitive approaches to the different issues have changed over time as have the relationships between them. Hence, any analysis must give special attention to the legal and political views of the relevant time under review. In principle, a right to self-determination of peoples is closely connected to the issue of (state) sovereignty and discussions on both topics were, at the time of the League of Nations, very closely tied to views on different degrees of civilization. The realities of colonialism at the time of the foundation of the League of Nations cannot be discussed without examining the (European) opinion on different standards and forms of civilization. Neither can the issue of decolonization be examined without referring to the beginning universality of international law and the understanding of state sovereignty. The issue of state sovereignty is also linked to civilization, since the definition of sovereignty as power over a territory under 27 28 Ermacora, see note 7, 871. T.M. Franck, The Power of Legitimacy among Nations, 1990, 160. Matz, Civilization and the Mandate System under the League of Nations 57 a leader was adapted to exclude (most) African and Asian societies by a reference to a necessary degree of civilization.29 a. Colonialism and the Right to Self-Determination at the Time of the League of Nations In our political relations today colonialism in the narrow sense of the meaning seems to have been overcome, even if the foreign policy of some states is criticized as being an expression of neo-imperialist ideas. Nevertheless, as long as there exist non-self governing territories, 30 the United Nations continues to deal with the implementation of the Decolonization Declaration of 1960,31 e.g. by regularly evaluating the report of the Special Political and Decolonization Committee.32 The acknowledgement of the general right to self-determination of peoples and the integrity and sovereign equality of all states are the main reason why colonial rule over territories is no longer recognized and approved by the community of states. Instead the establishment of (new) colonial rule by a state over a territory not part of its own and against the will of the people of the territory would in most cases be regarded an infringement of universal international law and be treated accordingly by the UN Security Council. In our times almost all surface of the earth, with exemption of Antarctica and few territories whose status is unclear, belongs to the territory of some sovereign states, even if certain borders continue to be questioned. Consequently, any attempt by a state to establish colonial 29 30 31 32 On the link between sovereignty and civilization and the struggle of European legal and political thinkers to modify the definition of sovereignty in order to prevent recognition of certain African kingdoms that would otherwise fulfil the criteria for sovereign states and, hence, would qualify as members of the family of nations, see A. Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law”, Harv. Int’l L. J. 40 (1999), 1 et seq. (25 et seq.). Particularly in the Pacific region several small island territories are administered by foreign authority, e.g. Tokelau that is administered by New Zealand. On the neglected issue of “anachronistic colonial domination” over such micro-territories see Y. Collart, “La Societé des Nations et le colonialisme – Le Mandat international: Une vielle idée pour demain?”, in: The League of Nations in Retrospect – Proceedings of the Symposium, 1983, 384 et seq. See note 26. The latest resolution on the issue is A/RES/59/136 of 10 December 2004. 58 Max Planck UNYB 9 (2005) rule by annexation of a territory belonging to another sovereign state without consent would be a breach of the prohibition of the use of force established by Article 2 UN Charter. In the age of colonialism all territory not governed by a recognized nation was considered terra nullius, despite the fact that it was inhabited by native peoples. The question whether or not a territory was terra nullius when coming under the rule of a colonial power is the same as the one concerning the relation between certain governments and indigenous populations, e.g. in Australia, New Zealand or the United States. In the case of Australia the High Court explicitly recognized that at the time of the discovery of the continent and the subsequent settlement of people of European origin the territory had not been terra nullius only because it was not governed by a recognized state.33 However, from the perspective of recognized international law at the time before the creation of the League of Nations the evaluation of the status of territory inhabited by “savages” was clearly different. Not only was territory considered to be no-man’s-land, if no other European power exercised governance, neither were the people recognized as societies with a right to self-determination, despite the evolution of the principle as such. A right to self-determination of the people and even their right to resistance against oppression and, in the case of American independence the right to free themselves from unjust colonial rule, had been postulated by the American Declaration of Independence, of 4 July 177634 and the French Déclaration des Droits de l’Homme et du Citoyen, of 26 August 178935, however, these rights were not easily recognized universally. Even the French postulate of equal human rights for all people, while not explicitly distinguishing between different peoples, tied the issue of sovereignty to the nation. Nations, however, were at that time those recognized as belonging to the family of (civilized) nations. Hence, it must be presumed that while all French people and potentially the other European people were considered free and equal, such a 33 34 35 See the Decision by the High Court of Australia in Mabo and others v. Queensland (no. 2), 1992, HCA 23. An online version of the Declaration of Independence of the thirteen colonies can be accessed at <http://www.law.indiana.edu/uslawdocs/ declaration.html>, last visited 6 March 2005. An English online version of the French Declaration of the Human Rights can be accessed at <http://www.elysee.fr/instit/text1.htm>, last visited 6 March 2005. Matz, Civilization and the Mandate System under the League of Nations 59 notion with all their consequences for internal and external relations was largely denied in regard to societies of a non-European origin. The explicit reference to the right to self-determination and equal human rights of the peoples in dependent territories in the preambles of later French constitutions, namely the one of 1946 and 1958 further creates doubt whether the original declaration extended to non-European societies. At the time of the creation of the League of Nations, a right to selfdetermination was first introduced into international relations by some legal scholars and politicians, yet without general recognition. Wilson, who referred to safety for all peace-loving nations of the world and equal treatment of all peoples in his Fourteen Points of 8 January 191836 and elaborated on the issue in several further speeches, was not able to achieve explicit recognition of a right to self-determination in the Covenant.37 This failure must be qualified as significant, since many minority groups which had believed in the promises of self-governance as an absolute principle with which the allied powers had provoked resistance to destabilize their enemies, were dissatisfied when they found themselves excluded from the privileged categories effectively granting self-determination.38 When the American and French revolutions resulted in the liberal theories of governments deriving their legitimacy only from the consent of the governed and the supreme authority of the people, the implications for the people living under the rule of colonial powers were at first rather insignificant, since the European colonial powers concluded that peoples in colonial territories were incapable of governing themselves and benefited from the imperial power.39 36 37 38 39 Reprinted in J.A.S. Grenville, The Major International Treaties 1914 – 1973: A History and Guide with Texts, 1974, 57 et seq. Wilson was aware that colonialism would not be abolished on a short term basis. Consequently, he called for an – at least – “free, open-minded, and absolutely impartial adjustment of all colonial claims” that took into account the interest of the population concerned; to be found in his point No. Five of the Fourteen Points. On the relation between Wilson’s Fourteen Points and the later Covenant see also W. Schücking/ H. Wehberg, Die Satzung des Völkerbundes, Vol. 1, 1931, 21 et seq. Raič, see note 25, 189. C.E. Toussaint, The Trusteeship System of the United Nations, 1956, 5. 60 Max Planck UNYB 9 (2005) b. The Linkage between Sovereignty and Civilization in 19th and early 20th Century Theory and Practice The rise and decline of colonial rule just like the acknowledgement of a right to self-determination are closely tied to the issue of civilization of peoples. The main underlying question in this context is why colonial authorities but also the Mandate System denied some peoples the right to immediate self-governance and subsequent recognition as sovereign and equal subjects of the evolving international law. In addition to economic considerations, the spreading of Western civilization as well as of Christianity were the main reasons for colonialism of allegedly uncivilized peoples within certain territories by, particularly, Spain, Portugal, France, the United Kingdom and the Netherlands.40 Concerning the American continent and its native inhabitants the US Supreme Court noted in 1823 in Johnson v. Mackintosh41 that: “(...) the character and religion of its inhabitants offered an apology for considering them as people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new world , by bestowing on them civilization and Christianity, in exchange for unlimited independence.” The general understanding by colonial powers that the spreading of Western civilization was a benefit for the “uncivilized” peoples in the colonial territories was only slowly and gradually overcome by a different perception of humanity. Whereas the claim of superiority due to a higher degree of civilization first resulted in alleged rights to civilize and exploit territories, moral change resulted in the notion of a duty of the civilized nations to assist and protect peoples who had not yet reached the same level of development. Still, civilization was the main element of distinguishing between peoples and nations and the resulting inequality between peoples and societies was not countered but legalized by international law and its recognized notion of sovereignty as a foundation of international law.42 40 41 42 Ibid. 8 Wheat. 543 (1823). On the linkage between concepts of state sovereignty and inequality in international law see B. Kingsbury, “Sovereignty and Inequality”, EJIL 9 (1998), 599 et seq. Matz, Civilization and the Mandate System under the League of Nations 61 From the paternalistic perspective of 19th and early 20th century political thinking, a process of decolonization meant that a society first had to be educated to be civilized and then be granted selfdetermination before it could be recognized as an equal sovereign partner in international relations. While, as mentioned above, one of the most obvious reasons for colonial power is economic interest, i.e. use of the dependent territories for the exploitation of raw materials and as markets for homeland goods, this was not the only reason for denying self-government to a territory’s people. From the perspective of the colonial powers pre and post World War I the question why not to grant self-determination to peoples in their colonies was most likely answered with a paternalistic notion of “they are not ready for it”. In this context, one has to thoroughly examine for what a people must be “ready” in order to gain self-governance, what preconditions must be met and, first of all, who, if anyone at all, is competent to decide on such issues. A foreign decision on preconditions for self-governance, even if today elaborated by the United Nations, could easily come into conflict with a peoples’ equal right to self-determination as we understand it today. A normative understanding of sovereignty at the turn of the 19th century like today is understood to comprise independence and authority in the form of supremacy over territory and supremacy over persons.43 Colonies lack sovereignty by definition because they are governed and administered by another sovereign state on which they are fully dependent. The issue of sovereignty as one of the preconditions to become a recognized subject of international law is of vital importance when analyzing relations between European states and non-European territories in the 19th and early 20th century. Sovereign states, already at the turn of the 19th century, could rely upon equality in relation to other sovereign states.44 As Oppenheim stated: “In entering the Family of Nations a state comes as an equal to equals [...]. The quality before International Law of all member- 43 44 L. Oppenheim, International Law, Vol. 1, 1905, 101. In recent times, however, this principle has been questioned from the perspective of legitimacy and representation of people. In some fields of international relations, e.g. in the realm of voting procedures in international financing, the principle “one state – one vote” that is a result of the principle of equality of sovereign states has been modified to provide for enhanced fairness and legitimacy. 62 Max Planck UNYB 9 (2005) states of the family of nations is an invariable quality derived from their International Personality.”45 Statehood and equality, however, as already indicated by reference to a membership in the “family of nations” were further linked to the prior recognition as sovereign states.46 The theory of recognition that evolved during the 18th century and transformed into a constituent precondition for membership in what was in 19th century language called the “family of nations” and what in today’s terminology is marked as the “international community” served to exclude societies from the privilege of sovereign equality in international law.47 Likewise the UN Charter states in Article 2 para. 1 that “the Organization is based on the principle of the sovereign equality of all its Members”. From this it follows, that entities that were not recognized as Member States of the family of nations or that do not qualify for membership in the United Nations today, could not and cannot automatically benefit from recognition and equal treatment. While it becomes clear that sovereignty and equality in international law are closely linked, this does not as such explain why territories were denied membership in the family of nations even if they had political structures that allowed territorial and personal supremacy; i.e. why they were denied recognition. In principle, a traditional definition of sovereignty and the resulting right to equal treatment contradicts the circumstance that many nonEuropean territories were first colonized and later administered by Mandatories, including those inhabited by societies that were politically organized and engaging in diplomatic relations. The main reason for denying non-European peoples and their political organization in a certain territory recognition as sovereign subjects of international law was the introduction of civilization as an additional condition for membership in the family of (civilized) nations. By this shift, civilization and membership in the family of civilized nations became the decisive factors for the recognition of sovereign states; not because the definition of sovereignty was modified but because civilization of society was added 45 46 47 Oppenheim, see note 43, 160 et seq. On statehood and personality in international law in relation to a right to self-determination see Raič, see note 25. On the relevance and historical development of the principle of recognition see G. Abi-Saab, “International Law and the International Community: The Long Road to Universality”, in: R.St. Macdonald (ed.), Essays in Honour of Wang Tieya, 1993, 31 (36 et seq.). Matz, Civilization and the Mandate System under the League of Nations 63 as a precondition to be allowed into the family of nations.48 This informal doctrine of a “membership test” that founded upon the distinction between European and Christians and all others and that was promoted by the Eurocentric thinking was sometimes described as the “standard of civilization”.49 Different standards of civilization and, in this case, the European standard of civilization were used to define societies and states inside and societies outside a group defined by the standard.50 Hence, even if a territory would have qualified as a state according to structures of territorial and personal supremacy, it was denied recognition and equal treatment if it was not “civilized”, unless it was for the benefit of the European authority. Despite the denial of recognition as a sovereign and equal state, European colonial powers recognized treaties concluded with local leaders, if they transferred sovereignty to the foreign authority. The contradiction between not recognizing sovereignty due to a lack of membership in the family of civilized nations, while at the same time referring to the establishment of legal authority due to a transfer of sovereignty by treaty with a former leader, cannot be solved.51 From this theoretical outset that, in practice, allowed colonization and other forms of administrative authority over “uncivilized” societies in accordance with international law, it is a long way to grant independence to the relevant societies and to recognize them as sovereign and equal members of the community of states. One step in the direction of such a development was the recognition of a right to self-determination of all peoples. The postulate of the equality of peoples that shared a common right to self-determination called for the formation of new states which would then in turn enjoy the principle of equality of all states. Yet, the acknowledgement of an equal right to self-determination for all peoples necessarily meant abolishing standards of civilization. When the League of Nations was founded, the Japanese proposal to include a clause on racial equality that would have set the basis for self-determination of non-European peoples was rejected and demonstrated the weak position of even the 48 49 50 51 Anghie, see note 29. Kingsbury, see note 42, 605. G.W. Gong, The Standard of ‘Civilization’ in International Society, 1984, 3. On the issue see also O. Yasuaki, “When was the Law of International Society Born? - An Inquiry of the History of International Law from an Intercivilizational Perspective”, J. History Int’l L. 2 (2000), 1 et seq. (3 et seq.). 64 Max Planck UNYB 9 (2005) already recognized Asian and African states in the Versailles peace process on the one hand and a profound and general resistance to racial equality as a political or even legal principle on the other.52 It follows from the combination of normative and informal doctrinal elements that, at the time of the establishment of the Mandate System, only being a member in the allegedly civilized family of nations together with power over a territory under the authority of a leader could result in recognition as a sovereign state. Only those states qualified as subjects of international law and hence qualified for membership in the League of Nations, and were allowed to create and implement a Mandate System for the well-being of the uncivilized former colonies. It was only in retrospect that a concept of sovereignty that was inherent in every people was referred to by some.53 The idea that mandated territories had sovereignty but that this sovereignty was temporarily deprived of actual expression was not common when the Mandate System was created but was introduced later to explain contradictions in legal and political theory. c. Approaches to Different Standards of Civilization When setting aside the common and “natural” understanding that dominated 19th and early 20th century thinking that African and Asian peoples were uncivilized, the central difficulty that remains is to define the content of the term “civilization” or a “standard of civilization”. Obviously, approaches to defining the meaning of civilization strongly depend upon the time and situation, the cultural background as well as upon philosophical considerations. In general, the understanding of what constitutes civilization varies considerably with the relevant context in which the question is examined. In the context of admittance to the family of nations the standard of civilization also gained a legal dimension, albeit without much agreement in legal writing as to how to define such a standard.54 When international law introduced the requirement of civilization as a precondition to be recognized as an actor, different approaches as to 52 53 54 See Kingsbury, see note 42, 607. E.g. in the separate opinion of ICJ Vice-President Ammoun in the case Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971), 16 et seq. (67 et seq.). Kingsbury, see note 42, 605. Matz, Civilization and the Mandate System under the League of Nations 65 what constituted the necessary degree of civilization existed, although it was in principle agreed that it had to be a standard of civilization in the European sense. In essence the importance of being a member of the civilized part of the world in colonial and post-colonial times does not define the preconditions for being recognized as civilized other than being as European as the European powers at the time of the League of Nations. Consequently, European values, standards and modes of behavior had to be copied and, furthermore, nations had to assimilate in a commercial sense, i.e. they had to engage in constant commercial relations with the European states.55 Likewise international law evolved from a “law of Christian nations” to a “public law of Europe” to a “law of civilized states” including the assimilated non-European states.56 First of all the encounter of European and non-European cultures in Africa and Asia but also with native Americans, native Australians or with New Zealand’s natives was exactly that: a clash of different cultures. In the end European culture and a European understanding of standards of civilization prevailed. However, the superiority that resulted in defining what amounted to civilization according to its own cultural standards was not established by an assessment of the values of the different cultural convictions – if suchlike would be possible at all – but by the accompanying military force and superiority. By the combination of military superiority with the missionary spreading of culture and religion non-European societies had no choice but to accept the standard of “civilization” as something worth attaining57 in order to ultimately be granted self-determination. Only assimilation promised recognition. It was hardly questioned by the Eurocentric perspective on international law that peoples living in Africa and Asia were uncivilized if compared with the European societies or societies descendant from the European peoples such as America or Australia and New Zealand. Although certain African and Asian states were recognized due to their standard of civilization, which was e.g. in the case of the recognition of Japan mainly demonstrated by military might, they remained outside the inner circle of European actors: tolerated but not considered fullyfledged Member States.58 55 56 57 58 Abi-Saab, see note 47, 36 et seq. Gong, see note 50, 238. Ibid., 98. Abi-Saab, see note 47, 37. 66 Max Planck UNYB 9 (2005) The Mandate System reflects the distinction between the civilized and the uncivilized by referring to tutelage as a sacred trust of civilization that can only extend – although not explicitly referred to as such – to the uncivilized or not yet sufficiently civilized societies. Despite its careful wording, the idea behind the establishment of different types of mandate was clearly based upon allegations that some peoples were not civilized enough to be able to govern themselves on a short-term or even medium-term basis. The Eurocentric understanding common at that time that the peoples in the dependent territories of Africa and Asia were too uncivilized to establish public order, public administration, stable governmental structures, a civil society, education and a viable economy was proliferated by political and legal opinion and writing at that time. Nineteenth century classification of “humanity” distinguished either between the “civilized”, “semi-civilized” and the “uncivilized” or in a different terminology between “civilized humanity”, “barbarous humanity” and “savage humanity”.59 Reasons for such a common understanding that was reflected in European societies in general, can partially be explained with reference to socio-cultural implications at that time. Contacts to African and Asian people were, at least for the ordinary European citizen, very limited. Relations to non-European societies and cultures were often restricted to tales of seafarers and adventurers. The fact that, mainly African, people were exhibited by their participation in shows held inter alia in German and Austrian zoos60 further promoted the picture of exotic but savage peoples and assisted the manifestation of a common understanding of superiority of the (European) “civilization”. 59 60 See ibid., 38 for further categories and references to late 19th century sources. In the late 19th and early 20th century shows with “exotic” people were a great success throughout Europe. The German zoo Hagenbeck in Hamburg, for example, held more than 60 so-called “Völkerschauen”. In these shows members of African, South-American and other native peoples performed “tribal dances” or were exhibited in their allegedly normal surroundings performing their daily chores to the fascination of the public. In accordance with the fashion of the time, shows were often provided with an alleged scientific background to attract an even greater audience. On the history and setting of these shows see inter alia H. Thode-Arora, Für fünfzig Pfennig um die Welt – Die Hagenbeckschen Völkerschauen, 1989; L. Dittrich/ A. Rieke-Müller, Carl Hagenbeck (1844-1913) – Tierhandel und Schaustellungen im deutschen Kaiserreich, 1998. Matz, Civilization and the Mandate System under the League of Nations 67 From our perspective today, “civilization” and a “high standard of civilization” might be equaled with the implementation of certain human rights standards. However, taking into account the violence and unrestricted brutality with which allegedly civilized states fought against each other during World War I, it is questionable whether at the time of the Mandate System there was any linkage between civilization and humanity in more concrete forms. In essence “civilization” at the time of the Mandate System was a notion of cultural arrogance if not a tendency towards racism that perceived as uncivilized those peoples that did not share European culture, religion and traditions. d. Implications for Current Policies Although democracy as the result of a process of self-determination of a people to govern their affairs internally and externally, is the indispensable foundation of many states that are important actors in the international arena, this development is relatively young. The idea to protect societies from undemocratic forms of government does not explain the historical reasons for denying self-government and is questionable even today. In the high time of colonial powers, most of the states exercising authority over overseas territories were monarchies with more or less strong approaches to democratic self-government of their own people. A lack of ability to democratically govern themselves at that time and even directly after World War I, when democratic republics were strengthened, could not have been the decisive factor. Instead civilization and the lack thereof was turned into the central issue that served as an interrelating factor for the issues of colonial rule, tutelage, sovereignty and self-determination. Relics of the distinction between the civilized and the uncivilized peoples remain in the texts of current international law, although they have lost their practical relevance. The most prominent example is given by Article 38 para. 1 lit. c. of the Statute for the ICJ.61 This article refers to “general principles of law recognized by civilized nations” as one of the sources of international law to be applied by the court. The provision with its reference to civilized nations has its origin in article 38 of the Statute for the Permanent Court of International Justice (PCIJ),62 the ICJ’s predecessor, that was adopted on 13 December 1920. The PCIJ served as the dispute settlement institution for the Member States 61 62 UNCIO Vol. 15, 355 et seq. LNTS Vol. VI No. 170, Statute. 68 Max Planck UNYB 9 (2005) of the League of Nations and its statute clearly reflects the perception of international law at the time of its creation. The reference to civilization to define the sources of law is a clear reflection of the origins of international law in the Westphalian system of sovereign states. Although each source named in Article 38 para. 1 of the ICJ Statute was originally linked to a standard of (European) civilization, the frequent use of the phrase “recognized by civilized nations” started to become an issue of embarrassment in international law and international relations in the 20th century.63 The fact that the reference to general principles of law of only the civilized nations as a source of international law was not deleted from the later Statute for the ICJ demonstrates that the Eurocentric era of international law was not yet completely over when the UN was founded, despite the acknowledgement of a right to self-determination and efforts to promote decolonization. Today, the term “civilized nations” in Article 38 para. 1 lit. c. ICJ Statute is understood to have no limiting or in any way restrictive character but refers – if not to all recognized states of the world – at least to all UN Member States.64 This understanding reflects that a practice of differentiating between the civilized and others has formally been given up in international legal relations and that the exclusively Eurocentric perspective on law has been overcome despite continuing economic and political dependencies between developed and developing states. Yet, the issue of different standards of civilizations might resurface even in our times, either as a “clash of civilizations” or as the question whether globalization forces a diverse cultural system to conform to a Western standard.65 With a view to current world relations one might all too easily apply the measuring stick of a Western understanding of democracy to determine whether societies are capable of governing themselves or whether foreign assistance in a broad sense of meaning is necessary. From a perspective that often has a decidedly paternalistic notion, a people that is not ready for democracy must be protected from instability or from villainous tyrants. According to such a line of argumentation a people requires guidance towards democratic self-government that can only be granted by some kind of external administrative authority. This, how63 64 65 D.P. Fidler, “The Return of the Standard of Civilization”, Chi. J. Int’l L. (2001), 137 et seq. (138). W. Heintschel von Heinegg, in: K. Ipsen, Völkerrecht, 2004, §17, para. 2. On this issue see Fidler, see note 63, 137 et seq. Matz, Civilization and the Mandate System under the League of Nations 69 ever, leads to a distinction between the “able” and the “unable”, the “knowing” and the “unknowing” that is more or less equivalent to the distinction between the “civilized” and the “uncivilized”, which has – at least formally – been abolished from modern political theory. In both cases, post World War I and today, the underlying scenario – Western nations use international law to impose policies, institutions and values embedded in Western civilization upon non-Western societies66 – is virtually the same. With a view to world politics of the last years the tendency is to replace the former distinction between civilized and uncivilized societies with a distinction between undemocratically and democratically governed peoples. Whether such a distinction is an advisable criteria for modern world politics is questionable. The relevant questions are caught in the dilemma between actively promoting human rights standards and respecting the integrity of states even if they are qualified as “failed states” by parts of the world community. III. Structure and Function of the Mandate System The conceptual structure of the Mandate System demonstrates its overriding objective not to treat the detached colonies as spoils of war to be transferred under new colonial rule but to create a system of controlled administration under supervision of the League of Nations. The system clearly is of an international nature, although the direct administrative authority is vested in single Member States, the Mandatories, in contrast to an approach of direct international government. 67 The balance of a Mandatory’s power on the one hand and supervision and control by the League of Nations on the other reflects the political compromise and shows certain deficiencies. The League of Nations itself had no legal competencies to transfer the administration of mandated territories un- 66 67 Ibid., 139. On the distinction between different models of direct administration after the foundation of the United Nations either as Direct Administration by the United Nations or as Direct Administration by UN Member States see E. de Wet, “The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq. 70 Max Planck UNYB 9 (2005) der its direct control should the Mandatory fail to comply with obligations under the mandate.68 1. Governing Principles: Non-Annexation and “Sacred Trust” Different levels of objectives and goals have to be distinguished when examining the Mandate System. One of the main political ideas behind the system was the prevention of exploitation of native peoples in dependent territories. This objective was supplemented by the one to promote the well-being and development of the people. These political deliberations were implemented and supported by a number of principles. Primarily, two elements formed the core of the Mandate System: the principle of non-annexation of the territory on the one hand and its administration as a “sacred trust of civilisation” on the other. While these considerations addressed some problems, e.g. the general restriction of the powers of the Mandatories, they raised others, particularly with regard to who had sovereignty over the territory. The circumstance that the Mandatories had to administer the mandated territories without annexation, while to some extent countering imperial desires of the existing colonial powers, did not solve the question of whether or not and to what degree any entity had sovereignty over the territories at all. The mandated territories were considered not yet capable of sovereignty, which would have meant self-determination in all respects. Under colonial rule the governed colonies by definition lack sovereignty. Yet, in these cases sovereignty and jurisdiction is with the colonial power. The Mandatories, as opposed to colonial authorities, administered the territories in accordance with the terms of the mandate and on behalf of the League of Nations. Hence, the performance of rights according to the mandate can only relate to conferred rights and not to original ones held by the Mandatory. At the same time the conferral of administrative rights does not necessarily transfer sovereignty. Furthermore, in order to be transferred from the League of Nations to a Mandatory it must have first been attributed to the organization. 68 In contrast thereto, the UN Charter crafted an idea of direct international government into its Article 81. Under this provision the United Nations could act as a potential Administrating Authority within the Trusteeship System. Matz, Civilization and the Mandate System under the League of Nations 71 This, however, must be denied when interpreting the Covenant. The Covenant is silent on the issue of new sovereignty over the territories. Article 22 only mentions that they have ceased to be under the sovereignty of the states governing them before the war. From the further wording it follows that the territories themselves are not ready for sovereignty. No indications are given that “tutelage” involved sovereignty. The League of Nations’ involvement in the Mandate System and the position of a supervisor over the Mandatories did neither transfer territorial sovereignty to the institution itself nor, as already explained, to the Mandatory. As a result, the mandated territories remained entities that were governed by international law without being recognized subjects of international law. Mention has already been made of – later – theories of “dormant” sovereignty that at all times lay with the people in dependent territories but that was only re-established69 when the territory became independent. The principle of administration as a “sacred trust of civilisation” was designed to prevent a practice of imperial exploitation of the mandated territory in contrast to former colonial habits. Instead, the Mandatory’s administration should assist in developing the territory for the wellbeing of its native people. A difficulty with the concept of “sacred trust” is its lack of definable content and its – from our perspective today – decidedly paternalistic tone. If anything, it can serve as a negative definition to detect the abuse of power, e.g. if in the case of the exploitation of gold and silver or minerals for the benefit of the Mandatory the latter is not treating the territory as a “sacred trust”. Apart from this, the term is without specific legal or even political meaning but rather affirms a moral duty to care. Although the idea behind the system is reflected by the use of the term “sacred trust”, it does not give guidance on how to actually perform the Mandatory’s function. Furthermore, it cannot serve as a measuring stick when controlling a Mandatory’s performance. This changed only when, after the creation of the United Nations and the establishment of the principle of self-determination, what 69 Technically it was for most territories not even a re-establishment of sovereignty but its first exercise, particularly because colonial powers arbitrarily drew borders of territories that had nothing in common with ethnic groups or societies inhabiting the land. When these borders were affirmed by the borders of the mandated territories they comprised societies that had formerly never exercised sovereignty as one people. 72 Max Planck UNYB 9 (2005) was formerly called a “sacred trust” was equaled with speedy development of structures for self-government.70 2. Establishment and Classification of Mandates All mandates71 were established by a Mandate Agreement, which set the terms for the administration by the Mandatory Power. By such a procedure rights and duties of the Mandatories were specified for each territory. Article 22 of the Covenant in accordance with its overall aim to guarantee the well-being and development of the peoples inhabiting the former colonies provides that: “the character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances”. Different groups of territories are further elaborated upon by article 22 paras 4-6 Covenant with reference to the different stages of cultural, political and economic development as well as certain particularities that require varied degrees of administration. Such differences are in further detail recognized by the specific mandates. Article 22 of the Covenant and the different mandate agreements have led to the classification of dependent territories as A, B and C mandates according to the degree of involvement of the Mandatory and the corresponding degree of self-governance. The so-called A mandates consisted of former Ottoman Empire colonies and comprised Iraq, Palestine including Transjordan, and Syria including Lebanon. According to article 22 para. 4 Covenant the societies living in these territories had developed in such a way that “their existence as independent nations can be provisionally recognized”. Although formally mandated territories, these A mandates were only nominally governed by foreign authority as the Mandatory was offering advice and support in the process of self-government. In contrast to the relatively far-reaching self-determination of the societies in A mandates, authorities that were mandated with category B mandates had far greater powers over the administration of the territory. Mandatory states exercised full administrative control under the 70 71 Franck, see note 28, 160. For the distribution of mandates and figures concerning the area of the territories and their population (as of 1938) see Hall, see note 6, 295. Matz, Civilization and the Mandate System under the League of Nations 73 supervision of the League of Nations’ organs that were responsible for the Mandate System. Category B mandates included the British and French rule over Cameroon and Togo72, German East Africa (Tanganyika) and Rwanda-Burundi. By its concept and degree of power, rule over C Mandate territories came closest to colonial rule. The relation between the Mandatory state and the mandated territory reminds of the relation between imperium and dominium.73 Article 22 Covenant names South-West Africa and certain South Pacific islands as being best administered as integral parts of the Mandatory’s territory: “owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilization, or their contiguity to the territory of the Mandatory … ”. Australia was mandated with the former German territories South of the equator, Japan with those North of the equator. Nauru was mandated to the United Kingdom, Western Samoa to New Zealand and former German South West Africa came under the Mandate of the Union of South Africa. The last mandate became a particularly problematic matter of international politics and international law and shall be given a closer look in some of the following sections.74 3. The Main Institutional Features of the Mandate System According to article 22 para. 7 of the Covenant Mandatories had to report annually on the situation in the territories they administered, as part of the balance between relatively far-reaching powers and League of Nations supervision. Those reports had to be submitted to the Council. However, in accordance with Article 22 para. 9 of the Covenant, the League of Nations established the so-called Permanent Mandates Commission to examine the annual reports and to advise the Council on matters related to the Mandate System. The creation of reporting requirements as part of a compliance procedure and compliance control has experienced growing approval in international human rights law and international environmental law in the last decades. To this ex- 72 73 74 In both cases parts of the territories were mandated to the United Kingdom and others to France. Ermacora, see note 7, 872. Infra at III. 4. 74 Max Planck UNYB 9 (2005) tent reporting requirements are still considered a modern and viable tool of institutions. However, a reporting scheme is hardly sufficient, if it is not accompanied by further means to influence the behavior of states should they fail either their reporting obligations or their substantial duties. In the case of the Mandate System the degree of actual control was relatively low. Although the Permanent Mandates Commission reviewed the reports, it did not verify the situation in the mandated territories. Neither was the Permanent Mandates Commission itself competent to decide on formal or substantial deficiencies concerning compliance with the relevant mandates. Another element already introduced by the Mandate System that is experiencing a revival in current international relations consists of the possibility for individuals to submit petitions. The right of petition was not expressly referred to in the Covenant. Nor was mention of such a right made by the texts of the different mandates. The Council established the system by the adoption of a Procedure in Respect of Petitions in 1923.75 The system inter alia served as a means of gathering additional information about the situation in a particular mandated territory for the Permanent Mandates Commission.76 In our times such a mechanism was inter alia introduced with the creation of the World Bank Inspection Panel to enhance accountability. However, the petition system that formed part of the Mandate System hardly functioned as an effective procedure to achieve a change of policy of the Mandatory. Petitions from inhabitants of the mandated territory were only accepted if they were transmitted by the Mandatory itself, which could either suppress petitions because inhabitants lacked trust in the Mandatory or because the Mandatory in fact refrained from transmitting such petitions. 4. The Example of German South West Africa (Namibia) In addition to the case studies performed by other contributions to this Volume, the following subsections focus on governance of the territory of the former German South West Africa to illustrate the setting and 75 76 Reprinted in Hall, see note 6, 314 et seq. S. Slonim, South West Africa and the United Nations: An International Mandate in Dispute, 1973, 47. Matz, Civilization and the Mandate System under the League of Nations 75 some of the failures of the Mandate System of the League of Nations.77 In contrast to other case studies, this article with its focus on the Mandate System and the issue of civilization does not attempt to draw the full and chronological picture of events from the negotiation of the Mandate for the territory to its independence. Rather this paper concentrates on briefly summarizing the main steps undertaken by the League of Nations and later the United Nations in regard to Namibia insofar as they are relevant for an assessment of the Mandate System and its deficiencies and a discussion on potential future models for trusteeship and state-building. As mentioned above, the Union of South Africa that was in this context represented by General Smuts played a significant role in creating the Mandate System. From the beginning South Africa expressed her will to be mandated with the territory of the former German colony South West Africa that lies adjacent to her own territory. When the Mandate System was initiated, “His Britannic Majesty” was mandated with the former German territory and, since the mandate was “to be exercised on his behalf by the Government of the Union of South Africa”,78 the latter administered it for more than half a century to great international concern regarding the means of administration and the political system established. The general acceptance of the name “Namibia” that stems from the Namib Desert instead of the former designation of the territory as “South West Africa” results from a UN General Assembly Resolution in 1968.79 Acceptance of the name by the community of states underlined the formal recognition of the territory’s right to rid itself from both its colonial label and from administration as part of the South African state territory. By such a proceeding the United Nations meant to emphasize the Namibian people’s claim to self-determination. The need for explicit re-statements of Namibia’s special, international status has 77 78 79 On the mandate and later UN involvement see inter alia Slonim, ibid. 76; G.M. Cockram, South West African Mandate, 1976; I. Sagay, The Legal Aspects of the Namibian Dispute, 1978. For a fuller picture on Namibia’s final independence and the role of the numerous political actors involved see e.g. V.J. Belfiglio, “The Issue of Namibian Independence”, African Affairs 78 (1979), 507 et seq.; S. Soni, “Regimes for Namibia’s Independence: a Comparative Study”, Colum. J. Transnat’l L. 29 (1991), 563 et seq. Preamble to the Mandate for German South West Africa, reprinted in Slonim, see note 76, 369 et seq. A/RES/2372 (XXII) of 12 June 1968. 76 Max Planck UNYB 9 (2005) to be seen in the context of the long-term controversy between South Africa and the League of Nations and, particularly, the UN over the administration of the former colony that began shortly after it became a mandated territory and ended with Namibia’s independence and full recognition as a sovereign state in 1990.80 a. The Controversy about the Status of Namibia as a Mandated Territory: The Question of Sovereignty When Germany had to renounce all rights concerning overseas territories according to article 119 of the Versailles Peace Treaty, the former German protectorate of South West Africa was classified a type C Mandate. On 17 December 1920 the Government of the Union of South Africa represented by the King of England was mandated with the administration of the territory. According to the regulation in article 22 para. 6 of the Covenant, South West Africa was allowed to administer the territory as part of its own. The far-reaching powers of the Mandatory are also referred to by article 2 of the German South West Africa Mandate according to which: “The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Union of South Africa, and may apply the laws of the Union of South Africa to the territory […]”. Apart from that general outline, the degree of administration and control was to be defined by the Council of the League of Nations in accordance with article 22 para. 8 of the Covenant. This article is also referred to in the preamble of the Mandate for German South West Africa. As mentioned above, category C mandates come closest to colonial rule, due to the far-reaching powers of the Mandatory, although the principle of the “sacred trust” was meant to prevent colonial exploitation. The example of Namibia demonstrates the difficulties to define the legal status of class C mandates. Despite the circumstance that the Mandatory state was allowed to exercise full administrative and legislative powers as if the territory was a portion of its own, in legal terms this did not result in an annexation of the territory. However, the apparent contradiction between the principle of non-annexation and de lege lata treatment as part of the Mandatory’s territory leads to a de facto annexation. In the case of Namibia the de facto annexation to80 Namibia was admitted to membership of the United Nations on 23 April 1990. Matz, Civilization and the Mandate System under the League of Nations 77 gether with the profound difficulties in defining the issue of sovereignty for class C mandates resulted in a lack of clear rejection of South African claims in the time of the League of Nations. The mandated territory remained a particular subject of international law: neither sovereign itself nor formally a part of another sovereign state’s territory. Yet, the League of Nations was doubtful how to react when South Africa challenged exactly this conclusion. The wording of the Mandate for German South West Africa81 is already ambiguous as far as the issue of sovereignty over the territory is concerned, since it does not clearly reject South African claims to sovereignty over the territory, but instead affirms full powers.82 In 1926, six years after the beginning of the mandate, South-Africa first formally claimed the possession of sovereignty and initiated a controversy with the League of Nations that resulted in a very vague interpretation of South African sovereignty over the territory which was accepted by South Africa.83 The granting of factual power and the fictional treatment of the territory as if it were part of the Mandatory’s state territory together with relatively weak institutional control, however, paved the way for a more obvious abuse of powers in the decades to come. The initial reasons why, according to the League of Nations, the territory was to be administered by another state – a society allegedly too uncivilized to take its governance into its own hands – differed considerably from the later South-African reasons for not leading the territory towards self-determination and independence. Due to the common border with the territory it was mandated with, South-Africa claimed a threat to national security by Soviet Union influences on organizations operating in the territory, namely the South West Africa People’s Organization (SWAPO).84 81 82 83 84 See note 78. Ermacora, see note 7, 875. This difficulty, although it became most apparent in the case of Namibia, was shared by other class C mandates as well. The mandate for the German Possessions in the Pacific Ocean Lying North of the Equator, reprinted in Hall, see note 6, 307 et seq., that concerns those Pacific islands brought under Japanese authority after World War I is formulated in equally sparse and ambiguous words, in fact, article 2 of the Japanese mandate uses in its relevant parts exactly the same wording as article 2 of the mandate for German South West Africa. Ermacora, see note 7, 875. Belfiglio, see note 77, 507. Max Planck UNYB 9 (2005) 78 Hence, the reason for continued administration was South-African national-security and not the well-being of the people of the mandated territory and their education towards self-government. Although the Mandate for German South West Africa misses a provision that the territory’s population should be gradually led to self-governance, article 22 para. 6 Covenant refers to the interests of the population that are to be safeguarded and not to the political interests of the Mandatory state. In addition to the questionable reasons for continuing administration of the territory by the Mandatory, the treatment of the indigenous population of South West Africa, whose interest article 22 para. 6 Covenant explicitly mentions, gave rise to concern when South-Africa introduced a system of apartheid in Namibia that contradicted the duty to safeguard the well-being of the native population. b. The Termination of the Mandate When the League of Nations dissolved and the United Nations was created the controversy about the status of Namibia entered into a new round. Although the League of Nations under which the Mandate System was established no longer existed, in legal terms the mandates continued. In principle, three different options existed in regard to Mandatories and their relation to the community of states and the newly founded United Nations: (1.) to terminate the mandate and leave the territories in a state of self-determination and independence; (2.) to transfer the mandates into the UN Trusteeship System and continue administration under its conditions; or (3.) to continue the mandate without transfer and without the League of Nations institutional setting. The last mentioned option is the one with the most difficult legal status with regard to control of the Mandatory’s continuous administration. South Africa explicitly refrained from formally transferring her administration of the territory she had been mandated with into the UN Trusteeship System as envisaged by Article 77 of the Charter, despite numerous resolutions adopted by the UN General Assembly to the effect that South Africa was obliged to put the territory under UN Trusteeship.85 Nevertheless, in addition to the declaration that South Africa 85 See e.g. A/RES/141 (II) of 1 November 1947. The ICJ, in its first Advisory Opinion dealing with Namibia, later held that there was no obligation by South Africa to enter into a trusteeship agreement with the United Na- Matz, Civilization and the Mandate System under the League of Nations 79 would comply with her obligations of the mandate, she also issued reports to the Trusteeship Council. When criticism within the United Nations concerning South Africa’s administration of Namibia grew significantly in 1949, South Africa stopped the submission of reports arguing that she was not obliged to report to the United Nations but had only done so on a voluntary basis.86 Despite the controversy about the administration of the territory and reporting obligations, South Africa, once again, confirmed her determination to continue authority in accordance with the spirit of the mandate. In its Advisory Opinions the ICJ upheld the opinion that the mandated territory continued to have an international status, since the mandate was not terminated with the League of Nation’s dissolution on 18 April 1946.87 Although the court explicitly stated that South Africa was not competent to alter the status of the territory unilaterally, this did not abrogate South Africa’s claim to sovereignty over the territory and the related lack of intent to lead the territory to self-determination and eventual self-government. Furthermore, criticism concerning the question whether South Africa ruled for the well-being of the people in the mandated territory rose significantly when the Mandatory prepared to establish a regime based upon apartheid that extended to the territory. Since Advisory Opinions do not result in decisions that are legally binding, the ICJ opinions did not lead to any change of behavior on part of the Mandatory. Furthermore, South Africa’s refusal to submit to supervision and to cooperation in this respect, contrasted with any effective supervisory powers by the United Nations. Since the territory of Namibia was not transferred into the Trusteeship System, the institution of the Trusteeship Council had no competencies in this matter. The rather weak powers the League of Nations had held in regard to supervision of the Mandatories were now considered to lie with the UN General Assembly. When South Africa showed no signs of intent to comply with the obligations under the mandate, Ethiopia and Liberia, relying upon article 7 of the 1920 Mandate,88 submitted claims to the ICJ stating that 86 87 88 tions, see International Status of South West Africa, ICJ Reports 1950, 128 et seq. (139 et seq. and 144). On the different positions see A/RES/337 (IV) of 6 December 1949. See e.g. International Status of South West Africa, ICJ Reports 1950, 128 et seq. In its relevant part, the article reads as following: “The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and an- 80 Max Planck UNYB 9 (2005) South Africa seriously violated her duties as a Mandatory. The ICJ’s decisions in this matter revealed the weaknesses of proceedings according to the Statute for the ICJ in general and did little to establish trust in the efficient settling of disputes in international law. Although the ICJ had on a preliminary basis in 1962 rejected South Africa’s claim that the applicants lacked standing to bring the case before the court, it dismissed the applicants’ claim four years later finding that they lacked a legal interest in the settling of the matter.89 In contrast thereto, the United Nations was held to have such an interest in claiming compliance with the obligations accepted by South Africa under the mandate. However, the United Nations as an international organization was excluded from applying for a binding court decision. According to article 34 para. 1 of the ICJ Statute only states can be parties to dispute settlement procedures. Likewise, the obligation to follow a decision made by the ICJ extends only to states that are parties to the relevant dispute, Article 94 UN Charter. In accordance with Article 96 para. 1 UN Charter the only means to achieve a ruling by the ICJ on the matter was the application for another non-binding Advisory Opinion by the General Assembly or the Security Council. Finally, lacking effective judicial possibilities to influence South Africa’s behavior concerning the territory, the United Nations decided on 27 October 1966 to terminate the mandate because of South Africa’s constant lack of fulfillment of her obligations under the mandate.90 As a consequence of the termination of the mandate, the United Nations claimed that the territory had come under direct responsibility of the United Nations and on 19 May 1967 the organization established the UN Council for South West Africa that was later designated as the UN Council for Namibia.91 The UN Security Council quickly recognized the mandate’s termination and reacted to the new situation by calling upon South Africa to withdraw her administration over the territory as the continuation of South African presence in Namibia was contrary to 89 90 91 other Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.” South West Africa, Second Phase, ICJ Reports 1966, 6 et seq., particularly paras 15 et seq. A/RES/2145 (XXI) of 27 October 1966. As to the composition of the Council, see D.S. Haase, “Namibia Council”, in: Wolfrum, see note 7, 1995, 914 et seq. Matz, Civilization and the Mandate System under the League of Nations 81 international law and therefore illegal.92 Furthermore, the Security Council stated that due to the illegality of South African presence in Namibia, all acts taken by the South African Government in relation to Namibia after the termination of the Mandate were illegal and void.93 When the Security Council requested another Advisory Opinion by the ICJ to clarify the legality of the termination of the mandate and its consequences, the court confirmed the UN’s position.94 In its Advisory Opinion the ICJ held that: “the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately”.95 By S/ES/301 (1971) of 20 October 1971 the United Nations endorsed the court’s conclusions, but just like previous resolutions adopted by the General Assembly or the Security Council on the issue, South Africa disregarded the decision and the ICJ’s opinion. The vote taken by the 29th General Assembly to deprive South Africa of its seat in the Assembly as a sanction to her continuous refusal to comply with United Nations and the ICJ’s decisions on Namibia did not lead to the expulsion from the United Nations as such and did not result in a change of behavior on South Africa’s part. c. Namibia’s Independence In the light of the circumstance that South Africa did not give up her factual authority over the Namibian territory, the United Nations undertook a variety of political strategies to pave the way for eventual independence. What seemed impossible at the time of the League of Nations – an immediate right to self-determination for the Namibian people – was reaffirmed constantly and accompanied by more concrete action. The concept of administration as a “sacred trust of civilisation” had changed over the years. With the creation of the United Nations and its Trusteeship System foreign authority over territories was in this context understood as assistance to the realization of the peoples’ right 92 93 94 95 S/RES/264 (1969) of 20 March 1969 and S/RES/269 (1969) of 12 August 1969. S/RES/276 (1970) of 30 January 1970. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq. Ibid., para. 133. 82 Max Planck UNYB 9 (2005) to self-determination. South Africa, however, still relied upon the distinction between civilization represented by the white South African Government and the “uncivilized” natives. She had apparently not followed this new understanding when she refused to transfer Namibia into the Trusteeship System and instead acted in accordance with her divergent comprehension of civilization.96 The refusal to transfer the territory into Trusteeship together with the refusal to withdraw from Namibia and to grant it independence openly contradicted South Africa’s proclaimed policy of self-determination. When political pressure rose significantly in the 1970s this was only to a lesser extent due to a different or stronger interpretation of the right to self-determination compared to the time of the founding of the United Nations, but mainly due to the many new states that had emerged during the process of world-wide decolonization. These states were particularly sensitive concerning questions of foreign and illegal rule over territories. The result from a debate that was dominated by “militant Africans”97 consisted of a resolution that endorsed a report on resort to “armed struggle” that at least partially contradicted the UN Charter.98 The UN Council for Namibia that was established as the legal administering authority until the territory’s independence was a subsidiary organ of the General Assembly according to Article 22 of the Charter. Although the Council for Namibia was charged with inter alia administrative and legislative functions until a Namibian legislative assembly was established, its actions failed to gain any influence on the internal affairs of the territory due to South Africa’s refusal to recognize competencies of the Council for Namibia. However, in regard to the external affairs of the territory the Council for Namibia was more successful in representing Namibia in conferences and concerning international treaties convened under the auspices of the United Nations.99 The main role of the United Nations in the question of Namibia and the right to self-governance of its people lay in the search for a political solution. In particular the Security Council emphasized the need for 96 97 98 99 Belfiglio, see note 77, 512. Ibid., 513. See A/RES/31/146 of 20 December 1976. For an overview see E. Klein, “Namibia”, EPIL III (1997), 485 et seq. (488 et seq.). Matz, Civilization and the Mandate System under the League of Nations 83 free elections under UN supervision and control.100 To achieve this aim, the United Nations and the South African Government had to cooperate, which led to the peculiar situation that the United Nations as the de iure administrator had to negotiate with the illegal but de facto administrator of the territory in order to finally establish a situation of selfdetermination for the Namibian people. Only when Canada, France, Germany, the United Kingdom and the United States as the five Western members of the Security Council in 1978 formed the so-called “Contact Group” and made concrete proposals for achieving Namibia’s independence by the end of 1978 could the assent by South Africa and SWAPO101 be attained. The Contact Group’s diplomatic efforts have to be regarded as an “extra-UN” initiative that responded to the failure of the United Nations to solve the Namibian problem. Yet, it did not operate without linkage to the United Nations. Not only did the United Nations take up the main Contact Group’s proposals in its Security Council Resolution 435 (1978), the proposals also foresaw an institutional role for the United Nations in the independence process. The most important institutional proposal made by the Contact Group in relation to the UN’s role in assisting Namibia in the time of transition from South African rule was the establishment of the UN Transition Assistance Group (UNTAG). This institution, when it finally came into operation, consisted of a civil and a military section to effectively safeguard a peaceful process of selfdetermination by free and fair elections. In the years following the first proposals by the Contact Group, the implementation of Security Council Resolution 435 (1978) was the focus of UN activities concerning Namibia. South Africa seriously delayed the process by attempting to link the implementation of the resolution to withdrawal of Cuban forces from Angola.102 Arguably the “linkage regime” that was sponsored by the United States, despite the 100 101 102 S/RES/385 (1976) of 30 January 1976 that called for such elections was passed by an unanimous vote. On SWAPO’s role in the process of independence and its relationship with the United Nations see Klein, see note 99, 489 and Belfiglio, see note 77, 507 et seq. This condition for Namibia’s independence was originally initiated by the US President Ronald Reagan in 1981, who wanted to link the two issues to settle the question of Cuban forces in Angola, and found, quite naturally, South Africa’s appraisal, F. Ansprenger, Freie Wahlen in Namibia – Der Übergang zur staatlichen Unabhängigkeit, 1991, 22. Max Planck UNYB 9 (2005) 84 significant delays, succeeded eventually, when South Africa, Angola, Cuba and the United States entered into negotiations.103 A breakthrough in diplomatic activities came in 1988, when South Africa, Angola and Cuba affirmed the right to self-determination of the people in the region and South Africa and Cuba promised to withdraw troops from Namibia and Angola respectively in the tripartite Agreement on the Independence of Namibia on 22 December 1988.104 The first general elections to a constituent assembly that were recognized and supervised by the United Nations105 took place in November 1989. After the elaboration of a Namibian constitution and its adoption by the Assembly, Namibia finally gained independence on 21 March 1990. d. UNTAG as a Model for State-Building? While the United Nations attempted for decades to pave the way to free and fair elections with its proposals and resolutions, it ultimately failed to achieve the essential consent by South Africa, Angola and Cuba for a political solution. UN efforts, e.g. by the Council for Namibia, were unsuccessful due to South African resistance. Yet, the United Nations gained institutional weight again when it was “re-introduced” into the political process to provide for a mission to ensure that the first elections were free and fair: UNTAG operated under a Secretary-General Special Representative for Namibia and performed civil, police and military tasks. This specific UN function was important to ensure the final success of decades of struggle for self-determination of the Namibian people. One might say that in the context of discussing models for current and future state-building under international involvement it is not sufficient to step in at a rather late stage of the process to safeguard elections. It is true that a mission like UNTAG with a largely political mandate – despite its military section – is not comparable to political trusteeship. However, it is not the purpose of the contributions to this 103 104 105 Soni, see note 77, 565. Doc. S/20325. An online version of the agreement can be accessed at <http://www.c-r.org/accord/ang/accord15/c07.shtml>, last visited on 6 March 2005. Previous attempts to hold elections that were initiated by political groups operating in Namibia were not recognized due to a lack of freedom and fairness of procedures. Matz, Civilization and the Mandate System under the League of Nations 85 Volume to create fixed models for state-building. Every case of statebuilding differs in regard to its historical and political setting. There can only be elements that can be defined as desirable in the respective context. One of these elements is the safeguarding of free elections, no matter how the situation of regime change was actually achieved and how it has to be assessed from the view of international law. The safeguarding of free elections is a task for which the United Nations or another credible and legitimate organization is absolutely necessary to counter allegations of unilateral (Western) domination likely to occur otherwise. Particularly with a view to the situation in Iraq, UN involvement at a later stage, e.g. to safeguard the holding of free elections and to further accompany the following period of a constitutional development, is better for the organization’s credibility as well as for the acceptance of the results in the emerging state in question which helps avoid giving way to unilateralism that is likely to lead to ressentiments. Yet, with view to the fuller picture of state-building under international law, a mission like UNTAG can only be part of a system that takes international political trusteeship seriously. Insofar, the UN’s role in Namibia’s struggle for independence has elements of failure, i.e. in the light of years of unsuccessful attempts to change an occupation illegal under international law, as well as a success. e. League of Nations and UN involvement in the Issue of Namibia: A Brief Conclusion The only gradual conceptual difference between administration of class C mandates and colonial rule, the lack of effective control and the ambiguous behavior concerning South Africa’s early claim to sovereignty over Namibian territory are clearly significant failures of the League of Nations’ Mandate System. Nevertheless, the drafting of the specific Mandate for German South West Africa contributed to the institutional weaknesses by lacking any references to the status of the territory as well as to eventual self-governance of the native people. Consequently, even at the times when South Africa still affirmed her will to exercise her powers in the spirit of the mandate, there was hardly any possibility to insist on granting self-determination to the people and on cutting back South African competencies by relying on the wording of the mandate. That South Africa contradicted her own proclaimed policy of self-determination is a distinct matter. The denial of an explicit right to self-determination, although it can be explained by reference to the Eurocentric distinction between the Max Planck UNYB 9 (2005) 86 civilized and the uncivilized at the time of the League of Nations, is a significant shortcoming of the Mandate System that facilitated a de facto annexation of class C territories. However, despite the circumstance that the system facilitated the abuse of power by the Mandatory and, hence, contributed to the illegal occupation, it was first of all South Africa’s lack of will to act in accordance with international law that led to a continuous refusal of a right to self-determination even after this right was formally recognized and constantly reaffirmed, i.e. after the foundation of the United Nations. Furthermore, although the case of Namibia reflects the shortcomings of the Mandate System as well as certain weaknesses of the United Nations, it shall not be overlooked that Namibia was the only case in which a Mandatory illegally occupied the territory subjected to administration by the League of Nations. The approach that was pursued by the United Nations in regard to Namibia is ambivalent. On the one hand the peaceful, political solution preferred by the United Nations was in the end successful; on the other hand the weakness of the political strategy is reflected by the fact that the process from South Africa’s refusal to cooperate with the United Nations in the matter of Namibia until the latter’s independence took almost 40 years. Furthermore, the breakthrough in diplomatic negotiations was not a result of direct UN involvement, although the years of political efforts shall not be underestimated. It shall not be denied that state and nation-building are processes that require much time. Yet, in the case of Namibia it was not the actual transitional period but the political process of achieving a stage of transition that took the most time. When one takes into consideration that the United Nations and, in particular, the Security Council were weakened considerably during the time of the Cold War, it is questionable whether there actually have been missed opportunities that would have led to a more straight-forward process of independence. In this context it shall be again noted that South Africa claimed a threat to her national security by the Soviet Union’s activities in Africa and used this argument to justify her continuing de facto annexation of Namibia.106 UN Security Council Resolution 435 that adopted the proposal of the Contact Group was only possible, because the Soviet Union finally agreed to abstain from a negative vote. The delay in pursuing the process of independence by the United States and South African linkage of the question of Namibia with the withdrawal of Cuban troops from Angola is another example for the particularities of the Cold War era. 106 See Belfiglio, see note 77, 507 Matz, Civilization and the Mandate System under the League of Nations 87 IV. From Mandates to Trusts As already mentioned in the context of the case-study on Namibia, the breakdown of the League of Nations in the course of World War II and its dissolution on 18 April 1946 did not result in the abrogation of the Mandate System.107 However, international institutional control over the Mandatories, while never particularly strong, ended completely. The ending of institutional supervision destroyed one of the theoretical pillars of the Mandate System: control over those powers mandated with the administration of a territory and prevention of annexation of the former colonies. Formally, the Mandate System was only terminated completely, when the United Nations terminated South Africa’s mandate for the administration of Namibia in 1966, i.e. when the last mandate concluded under the League of Nations’ system ended. Of the other mandated territories, some gained self-governance when the League of Nations was dissolved, while controlled international administration was re-established for others. Whereas those mandated territories that had been classified as A mandates, with the exception of Palestine, were finally granted full independence in addition to the already established structures for provisional selfgovernance, the others, with the exception of Namibia, were voluntarily transferred into the Trusteeship System established by the newly founded United Nations. When the United Nations was established, political thinking in regard to colonialism and self-determination of peoples in dependent territories had changed considerably. After Roosevelt and Churchill had proclaimed the right to self-government for all peoples of the world in the Atlantic Charter in 1941,108 the right to self-determination became one of the central principles of the new collective efforts for world peace and security. In addition to an acknowledgement of a right to self-determination, the Trusteeship System sought to lead the Trust Territories to “full statehood”,109 i.e. sovereignty and membership in the community of states and its relevant organizations. This objective goes further than mere proclamation of a right to self-determination, because it explicitly recognizes the need to assist with state-building in order to create sovereign and equal actors in international law. 107 108 109 Different Deiwert, see note 5, 779, who claims that the Mandate System was terminated at this time. See above note 16. Deiwert, see note 5, 779. Max Planck UNYB 9 (2005) 88 When colonial territories started to develop independence movements and the European colonial powers faced difficulties to uphold colonial rule under the strains of the war and post-war era, public attitude generally shifted away from colonial aspirations. 110 The process of decolonization was fuelled by this circumstance, yet, the creation of the new UN Trusteeship System was, like its predecessor, again an issue of controversy from the time of its first discussion at the Yalta Conference in 1945 onwards and characterized by the necessity of compromise.111 Inter alia because the relatively sparsely worded provisions on the Mandate System in the Covenant had led to difficulties of interpretation and operation of the mandates, after the end of World War II states aimed to modify the League of Nations’ Mandate System and to regulate the new system in considerable detail, without abrogating the principle idea of administrating territories on their way to independence. The idea of political and administrative trusteeship that had already been an underlying concept of the Mandate System was stressed by the explicit labeling of the UN institution as the Trusteeship System. This new institution was established by Chapters XII and XIII of the UN Charter and was indeed significantly more detailed than the Mandate System that consisted of only one, albeit lengthy, article in the Covenant. Like its forerunner, the Trusteeship System set up structures for the administration of certain territories. Yet, in regard to security, oversight and economic relationships between the trusteeship territory and the administrating power, the two systems differed considerably.112 A core element of the system was UN supervision of the administration. Experiences with the Mandate System led to a tightening of institutional control over the Mandatory’s management. Furthermore, the obligations imposed upon the administering authority were formulated more stringently to avoid ambiguity and de facto annexation of territories. 110 111 112 Ibid., 777. Ibid., 777 et seq. Ibid., 778. Matz, Civilization and the Mandate System under the League of Nations 89 V. Conclusions: Are there Lessons to be Learnt from the Mandate System? When analyzing the experiences with administration of non-selfgoverning territories under the League of Nations and the United Nations, it is questionable whether the Mandate System has much to offer for the establishment of models for current and future transitional regimes under foreign involvement. Certainly, the Mandate System as such cannot be directly employed as a model for current or future statebuilding activities for a variety of reasons. Not only the colonial context under which it was established, but also the distinction between the civilized and the uncivilized and the corresponding lack of a right to self-determination for the latter forbid its immediate application as a prototype transitional regime. In this context the Mandate System seems too much a child of its own time to be of significant relevance today. However, it is too narrow a perspective to regard the Mandate System only as the historical predecessor of the Trusteeship System and not to analyze more closely its elements and, particularly, its many shortcomings with a view to current and future assistance to state-building processes. The main idea that formed both the Mandate System and the UN Trusteeship System is the concept of political trusteeship. This underlying concept has to be assessed in regard to its ability to be applied in the context of modern state-building efforts, i.e. without reference to past colonial structures. Even if, after an evaluation, one can find no positive elements in the idea of trusteeship at all, some lessons can at least be learnt from the deficiencies of the Mandate System with a view to establishing feasible United Nations missions in the future. Two different issues must be distinguished: the institutional shortcomings and especially problems concerning effective institutional supervision on the one hand and the underlying legal and theoretical difficulties that might also lead to ressentiments on the other. 1. Institutional Conditions In regard to institutional failures of the Mandate System one must not forget that it operated for fewer than twenty years, which – in terms of state-building processes – is not a long period of time to gain fundamental practical experiences. Yet, some problems with the system became apparent even during the relatively short time of its operation. Max Planck UNYB 9 (2005) 90 The main shortcoming that was reflected by a number of unresolved or problematic issues resulted from the limited competencies of the League of Nations concerning the Mandate System. Information about the situation in the mandated territories was limited, since the League of Nations relied exclusively upon the annual reports. Inspection visits were not provided for and never carried out. Any future foreign involvement has to avoid such weak competencies concerning the supervision of the power undertaking administrative activities. For UN state-building activities under Chapter VII of the UN Charter the supervision of the involvement is strictly regulated. Supervision and accountability in regard to the organization113 is also central for other UN missions that do not come under Chapter VII. However, if certain single states accept responsibility for state-building and administration of territories with the approval of the United Nations, supervision and accountability must be safeguarded to avoid a situation of abuse of powers as experienced under the League of Nations. That the colonial past and neo-colonial thinking are left behind must also be expressed by the institutions involved in state and nation building. A revival of the UN Trusteeship Council is not feasible, no matter how effective the concept of trusteeship may be, since the institution itself is, in the mind of many former colonies, inseparably linked to a slow and painful and not always successful process of decolonization. Hence, one will have to distinguish between certain ideas and lessons learnt from the Mandate System of the League of Nations and the UN Trusteeship System, e.g. the political trusteeship model itself, on the one hand and the institutional setting on the other. 2. The Legal Dimension With a view to the legal dimension of difficulties future trusteeship models have to face, the issues of sovereignty and self-determination remain particularly prominent examples. These issues were already problematic at the times of the Mandate System, yet the difficulties have slightly changed. At the creation of the League of Nations the issue of 113 Whether accountability should not foremost be owed to the people living in the administered territory is a question to be distinguished from the accountability in relation to the organization approving the administration, e.g. the United Nations or in early times the League of Nations. Matz, Civilization and the Mandate System under the League of Nations 91 sovereignty was an issue of concern, both because a Eurocentric understanding of international law aimed at the exclusion of “uncivilized” nations from the definition of a sovereign state and because it was unclear who held sovereignty over a mandated territory. Today the issue is problematic, because political trusteeship may be contradictory to state sovereignty, despite the latter’s flexibility and modifiable understanding. The UN Trusteeship System with Article 78 of the Charter explicitly states that no member of the United Nations can be put under trusteeship due to the principle of sovereign equality. In essence, such a concept must be valid for other forms of political trusteeship as well. In the context of failed states and particularly after an invasion and occupation of states, like Iraq, however, the occupied state may be said to at least partially lose sovereignty. Hence, the situation may be equivalent to the “dormant” sovereignty of mandated territories that is revived at the moment of independence or the ending of an occupation. To assess the legality of trusteeship concepts in such a case one would have to analyze the situation under which a state loses sovereignty as well as the following establishment of political trusteeship. It seems questionable, whether occupation that was initially not in accordance with the UN Charter could be turned into legal trusteeship, since the legalization of an unlawful loss of sovereignty by the concept of trusteeship might pose a general threat to collective security and the principle of sovereign equality that continues to be one of the foundations of the international community. In contrast thereto one might understand political trusteeship, at least if it follows a certain set of criteria, as providing for a (new) doctrine for international intervention into the affairs of sovereign states.114 In this case, however, the concept of an intervention that aims at trusteeship to defend human rights or re-establish internal selfdetermination by temporarily also denying external self-determination and sovereignty must be fixed by clear criteria in the UN Charter to counter unilateralism and allegations of neo-colonialism. In regard to the issue of self-determination at least the external component is threatened, if foreign administration is imposed upon a people. At the time of the League of Nations such a right was not yet acknowledged but it may be seen as one of the Mandate System’s ultimate goals to prepare a people to exercise such a right. Even the UN Trusteeship System did not seem to find a conflict between self-determination and governance by an Administering Authority, since it appears that in 114 Perritt, see note 9, 471 et seq. 92 Max Planck UNYB 9 (2005) accordance with Article 76 lit. b. of the Charter a right to selfdetermination is held in suspension until the Administering Authority has created circumstances that allow for its exercise.115 In contrast thereto, however, one might understand the right to self-determination to be an obstacle to political trusteeship, at least if the relevant people do not chose a political status that allows for assistance in a transitional period.116 3. Perceptions of Foreign Authority and Ressentiments Another important deficiency of the Mandate System that has some relevance even today, albeit on a slightly different level is how the people living in administered territories are, first, regarded with a view to their capabilities and, second, involved in a state-building process as this is vital for the acceptance and feasibility of foreign administration, i.e. the success of a state-building mission. If political trusteeship is not to come into conflict with the right to self-determination, the role of either the United Nations or a regional organization or a state or group of states “mandated” with political trusteeship is largely reduced to stabilize a territory in preparation of free and fair elections that are supervised by the United Nations or another international organization. The tensions arising in this context, however, have already been mentioned above and include ressentiments of the people against an electoral system and its performance imposed upon them by a foreign authority. The time-factor is equally difficult. If a territory is rushed to elections this might lead to chaos and a result perceived as illegitimate. If, however, too much time goes by, the organization or state administering the territory looses credibility concerning respect for self-determination and might be perceived as a neocolonial authority sparking resistance and violence. The perception of the administration by the Mandatories in the mandated territories was in many cases that of a colonial rule. The lack of equality of the Mandatories and the people in the mandated territo115 116 Deiwert, see note 5, 802. If the people chose to transfer authority to a foreign or international institution, its exercise is not problematic. This was the case e.g. in Cambodia where the UN Transitional Authority in Cambodia (UNTAC) was mandated with duties including foreign affairs, finance and defence. See also the contribution by L. Keller in this Volume. Matz, Civilization and the Mandate System under the League of Nations 93 ries that was explicitly laid down in the Covenant is one reason for this perception and should be an important enough reason not to directly apply the Mandate System as a model for today’s situation. However, some similarities that may be dangerous for stable state-building processes remain. Although a right to self-determination is universally acknowledged as far as internal self-determination is concerned, we sometimes experience references to the ability of peoples to wisely use that right. A distinction between the “knowing” (West) and the “unknowing” reminds us of the overcome distinction between the civilized (West) and the uncivilized in the context of the League of Nations. In particular the issue of democracy and democratization that does not come from within but is imposed on a people by the administering foreign power sometimes seems to rely on such a distinction. The danger that results from alleging that our understanding of democracy is the primacy of the civilized peoples that has to be brought to those “not yet able to stand for themselves” leads back to considerations rooting in the era of colonialism. Such a proceeding will almost certainly lead to ressentiments against foreign rule whether under UN supervision or not and should therefore be avoided. Likewise, one of the main difficulties experienced with modern state-building activities is a lack of clarity about the objectives and the relationship between the authority and the governed people. If the only objective pursued with foreign governance of non-self governing territories in our times is a process of creating stable structures for selfgovernment, any behavior that reflects self-interest of the administrating power has to be avoided by all means to avoid lack of credibility and the corresponding creation of ressentiments.117 When, as a result, models for future state-building must build upon clear and straightforward procedures for creating self-government that nevertheless refrain from necessarily imposing Western standards and from involving self-interest of the administrating power, one must conclude that models must involve either the United Nations or regional organizations, since unilateral administration will in most cases not be suitable to achieve this – in any case particularly difficult – task. 117 The lack of clarity in operations with a view to potential self-interest of the involved states has been critized by S. Chesterman, You, the People, 2004, 12, who states that: “For all their reprehensible elements, colonial forms of administration were at least clear about this relationship.” 94 Max Planck UNYB 9 (2005) Annex Article 22 Covenant of the League of Nations (1) To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant. (2) The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. (3) The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. (4) Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. (5) Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and Matz, Civilization and the Mandate System under the League of Nations 95 will also secure equal opportunities for the trade and commerce of other Members of the League. (6) There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. (7) In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge. (8) The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. (9) A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates. UNTEA and West New Guinea Daniel Gruss I. History of the WNG Conflict 1. Colonial History of New Guinea 2. Two Adversaries Positioning Themselves 3. Fighting a Losing Battle 4. The “Bunker Plan” II. The Mandate of the United Nations for WNG 1. Cease-Fire Observation 2. UNTEA a. Preparations b. Implementation aa. UNSF bb. UNTEA 3. Act of Free Choice III. Evaluation Annex: GAOR 17 Sess. Annexes, Agenda Item 89, Doc. A/5170, AnnexAgreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian) UNTEA, the United Nations Temporary Executive Authority, was engaged in West New Guinea (WNG)1 from 1962 to 1963. This UN mission was based on an agreement by the Netherlands and Indonesia – regarding the transfer of authority over WNG – and subsequently 1 For this article the territory will be termed West New Guinea (WNG) as other terms have political implications. WNG was named Irian Barat (West Irian) until 1973, after which it was termed Irian Jaya. Since 2002 WNG officially is termed Papua. A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 97-126. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. Max Planck UNYB 9 (2005) 98 authorised by a General Assembly resolution. Set during the Cold War UNTEA was the first mission in which the United Nations directly administered a territory. Although UNTEA was to ensure a smooth administrative transfer in a decolonisation process, it is still of interest today, especially with regard to the right of self-determination and the role of the United Nations in this respect. This case study will initially describe the historical context that led to the involvement of the United Nations, followed by an explanation of the mandate and its implementation. The main focus will be based on the period of UNTEA administering the territory, since this is the most relevant period. The observation of the cease-fire agreement and the United Nations involvement in the 1969 “act of free choice” will also be summarised briefly. Finally, an analysis of the involvement of the United Nations in WNG and its relevance will be presented. I. History of the WNG Conflict 1. Colonial History of New Guinea New Guinea, the second largest island in the world, is divided into two parts: Firstly, there is Papua New Guinea, now an independent state; a former British2 and German colony.3 After World War I the British Government administered the former territory of German New Guinea on behalf of the Commonwealth of Australia, that had received a corresponding mandate from the League of Nations.4 Following the Japanese occupation during World War II the territories of Papua and New Guinea were placed under UN trusteeship5 and were administered by Australia until Papua New Guinea achieved its independence in 1975.6 2 3 4 5 6 Territory of Papua, proclaimed a British protectorate, covering the southern coast of New Guinea. Former Territory of New Guinea, in the northeast of the island. SDN, Actes de l’Assemblée 1 (1920), Séances des Commissions, II Sixième Commission du 16 Décembre 1920, 375. A/RES/63 (I) of 13 December 1946. Papua New Guinea Independence Act 1975, Act No. 98 of 1975 of 9 September 1975, available at: <http://www.austlii.edu.au/cgi-bin/disp.pl/ au/legis/cth/consol%5fact/pngia1975247/notes.html?query=papua+new+ guinea+independence+act>. Gruss, Case Study – West Irian 99 Secondly, there is West New Guinea, the western half of New Guinea, which is a province of the Republic of Indonesia.7 WNG used to be part of the Dutch East Indies. By 1660 the Dutch had been able to strengthen their rule in the Moluccans with the help of the Dutch East India Company.8 Sovereignty over the western half of New Guinea was declared in 1828 by the Netherlands and trading posts were established after the recognition of Dutch claims by the United Kingdom and Germany in 1885 and 1895. WNG remained under Dutch administration after World War II, despite the fact that the rest of the Dutch East Indies, after an independence struggle of four years, grew into the newly founded state of Indonesia. When the Netherlands formally recognised the sovereign independence of Indonesia in 1949, the status of WNG remained unresolved. It was agreed in 1949 between the Netherlands and Indonesia that the issue would be postponed for a further year. 2. Two Adversaries Positioning Themselves As a final agreement could not be reached at this point and both parties had agreed to determine the political status of the territory within one year, the status quo remained in the meantime. The Netherlands considered themselves as sovereign power, while Indonesia interpreted the Dutch role there to be strictly administrative. In 1950 Indonesia, however, began dismantling federal structures and proclaimed a unitary state on 15 August 1950, “[…] which made a profound impression on the Dutch policy and completely shattered the possibility of a lenient and conciliatory Dutch policy in the New Guinea controversy.”9 Additionally Australia, previously a critic of the Dutch Indonesian policy, now encouraged the Dutch in retaining their control over WNG.10 Consequently no agreement was met in 1950; Indonesia kept demanding the incorporation of WNG into its territory and the Dutch refused to hand over sovereignty.11 An offer by the Netherlands to bring the case before the ICJ was rejected by Indonesia. Several Indonesian 7 8 9 10 11 Henceforth “Indonesia”. A. Lijphart, The Trauma of Decolonization; The Dutch and West New Guinea, 1966, 23. Lijphart, see above, 126. Lijphart, see note 8, 127. Lijphart, see note 8, 163. 100 Max Planck UNYB 9 (2005) attempts to have the situation resolved through resolutions by the UN General Assembly from 1954-1957 failed as well.12 While the United Kingdom, Australia and the United States generally aided the Netherlands in the mid fifties, Soviet support swung towards Jakarta. A visit to Moscow by Sukarno, President of Indonesia in 1956 had ensured Soviet consent to a credit worth approximately US$ 100 million for that year.13 With Soviet and developing Chinese support Indonesia also sided with anti-colonialists, a movement that grew in importance as more and more African and Asian countries gained independence. In 1956 the Round Table Conference Agreement was abrogated unilaterally by Indonesia14 and only one year later Jakarta, frustrated by failure of several draft resolutions and with the support of Moscow and Beijing, confiscated Dutch property in Indonesia and expelled thousands of Dutch citizens. By 1960 the position of the anti-colonialist movement had grown stronger and Resolution 1514 (XV)15 was passed, stating: “All peoples have the right to self-determination, by virtue of that right they freely determine their political status […]”. Since 1951 the Netherlands had aimed at preparing the inhabitants of WNG for independence and finally took this opportunity to increase the level of developmental aid and educational efforts in WNG significantly.16 More and more Papuans were admitted into government services in WNG and the Netherlands promoted the establishment of political parties, and local councils.17 To resolve the growing conflict between Indonesia and the Netherlands, Malaysia proposed in October 1960, to install some form of UN trust for WNG. The Netherlands may have accepted such a proposal 12 13 14 15 16 17 R. Higgins, United Nations Peacekeeping: Documents and Commentary 1946-1967, Vol. 2, 1969, 94; J. Saltford, The United Nations and the Indonesian Takeover of West Papua, 1962-1969: The Anatomy of Betrayal, 2002, 6. Saltford, see above, 7. C.L.M. Penders, The West New Guinea Debacle: Dutch Decolonisation and Indonesia, 1945-1962, 2002, 259. A/RES/1514 (XV) of 14 December 1960, para. 2. P. W. van der Veur, “The United Nations in West Irian: A Critique”, International Organization 18 (1964), 53 et seq. (53); J.M. van der Kreuf, “West New Guinea: The Uncertain Future”, Asian Survey 8 (1968), 691 et seq. (693 et seq.), both stating exact figures. van der Kreuf, see above, 693 et seq. Gruss, Case Study – West Irian 101 but Indonesia, “no doubt recognizing that the logical end of UN trusteeship was independence”,18 rejected this mediation attempt. Subsequently the Dutch government continued their efforts to strengthen self-governance in WNG. This finally led to elections for the WNG Council, a body with advisory function to the governor, in February 1961.19 Jakarta on the other hand argued with the doctrine of uti possidetis juris,20 after having convinced most of the anti-colonialist movement that WNG had been an inherent part of the former Dutch East Indies. Therefore, if the Dutch transferred sovereignty to WNG and not to Indonesia, this would be considered an act of separatism.21 The deteriorating situation finally led Indonesia to brake off diplomatic relations with the Netherlands in 196022 and at the same time it initiated paratrooper landings and commando infiltration by sea into the territory of WNG.23 Consequently the antagonists strengthened their forces in the region, with Indonesia receiving ever-growing support from the Soviets.24 3. Fighting a Losing Battle The security situation in south East Asia kept deteriorating as a whole, with Jakarta simultaneously introducing its Confrontasi approach towards a British-backed Malaysia and with steadily increasing support 18 19 20 21 22 23 24 E. Luard, A History of the United Nations. Volume 2: The Age of Decolonization, 1955-1965, 1989, 332. Penders, see note 14, 332. Meaning in regard to the period of decolonisation that territorial boundaries of new states should coincide with former colonial borders. See S.R. Ratner, “Drawing a Better Line: Uti Possidetis and the Borders of New States”, AJIL 90 (1996), 590 et seq. (610-611). Saltford, see note 12, 8. D.W. Wainhouse, International Peacekeeping at the Crossroads, National Support - Experience and Prospect, 1973, 137. van der Kreuf, see note 16, 691, et seq. Saltford, see note 12, 8, “By 1962 the relationship was such that Indonesia was the largest non-communist recipient of Soviet Bloc aid with credits exceeding US$ 1.5 billion. In total, between 1961 and 1963, Jakarta spent approximately US$ 2 billion on military equipment […]”. 102 Max Planck UNYB 9 (2005) for South Vietnam by the United States.25 But the effort in Vietnam to contain communist expansionism was only one product of the heightening Cold War. Additionally all international support for the Dutch position towards WNG had vanished and together with Portugal the Dutch remained the last “diehard colonialists”.26 The growing international and domestic pressure, led the Dutch Foreign Minister Luns to submit a draft resolution to the General Assembly of the United Nations in September 1961, calling for a transfer of Dutch sovereignty to the Papuan people, entrusting the United Nations with the administration of the territory until the political development had progressed, and finally allowing a plebiscite to be carried out on the final status of WNG.27 Although the Dutch government was not willing to entrust sovereignty of WNG to Indonesia, this plan showed a change in Dutch perception.28 Jakarta, however, viewed the resolution only as an instrument to help parts of its territory secede under the cover of the “right to self determination” and directly responded with threatening the use of force.29 With support for its position by communist and non-aligned states Indonesia successfully gathered enough opposing votes and the Plan by Minister Luns was bound to fail in the General Assembly.30 In the meantime the WNG Council had not only agreed with the plan by Minister Luns but had also renamed the territory to West Papua, and had approved on an anthem as well as on a flag, which was to fly alongside the Dutch flag.31 Further resolutions failed to be passed as well and Sukarno increased pressure by continuously transferring armed forces to the region and threatening to announce a general mobilisation in December 1961.32 The situation deteriorated once again after a naval clash occurred in January 1962 between Indonesian and Dutch vessels, Sukarno’s an- 25 26 27 28 29 30 31 32 J.R. Verrier, “Is West Papua Another Timor?”, Current Issues Brief No. 1 (2000), 1. Penders, see note 14, 330. Higgins, see note 12, 95, et seq.; Luard, see note 18, 334. Penders, see note 14, 336. Higgins, see note 12, 98. Wainhouse, see note 22, 137. Saltford, see note 12, 11. Saltford, see note 12, 11. Gruss, Case Study – West Irian 103 nouncement to “liberate” WNG in the course of the year, and the order of general mobilisation of Indonesian troops in February.33 In view of this steadily increasing threat of a large invasion by Indonesia, the United States administration feared that further armed escalation of the situation would drive Indonesia into the firm grip of communism.34 Since the inauguration of president Kennedy support had shifted towards supporting Sukarno resulting in a US$ 100 million economic aid promise after a visit by Sukarno to the United States in 1961.35 This led the Dutch government to give into a request by U Thant, who had followed Dag Hammarskjöld as new acting SecretaryGeneral in November 1961, to begin negotiations with Indonesia and abandon its earlier pre-requisite of a Papuan right to selfdetermination.36 After a further delay due to Sukarno insisting on a transfer of sovereignty prior to negotiations, a visit by Robert Kennedy to the Netherlands and Jakarta finally allowed the talks to commence.37 4. The “Bunker Plan” As both parties had agreed the negotiations took place in Virginia, under the auspices of the United Nations, with US Ambassador Ellsworth Bunker acting as a mediator and as representative of U Thant. Despite the ongoing talks, incursions by sea and air by Indonesian armed forces into WNG continued.38 Under pressure of the US government and a “less-than-honest” Ambassador Bunker39, the Dutch eventually dropped their demand for an Indonesian recognition of the right of self-determination for the Papuan people entirely.40 This opened an opportunity for the so-called “Bunker plan”, which stipulated an interim 33 34 35 36 37 38 39 40 Luard, see note 18, 337 et seq. K. Lagerberg, West Irian and Jakarta Imperialism, 1979, 87. Penders, see note 14, 335. van der Kreuf, see note 16, 694, who points out that for “[…] many politically articulate Papuan circles the relatively sudden accession of the Dutch (under heavy U.S. pressure) to the Indonesian claim on the territory came as a deeply traumatic disappointment, […]”. Penders, see note 14, 351 et seq. Luard, see note 18, 339. A.J.R. Groom, “The Trusteeship Council: A Successful Demise”, in: The United Nations at the Millennium: The Principal Organs, 2000, 167. Groom, see above, 167 et seq.; see also Lijphart, see note 8, 277. 104 Max Planck UNYB 9 (2005) administration of WNG by the United Nations prior to transferring sovereignty to Indonesia, nevertheless, under the precondition that a plebiscite be held to determine the will of the Papuans.41 After some more delays, the threat of war, which the Dutch felt they could not win, and the United States exerting strong pressure on the Netherlands the Agreement Concerning West New Guinea (West Irian)42 was signed on 15 August 1962.43 All negotiations took place without any involvement or any representation of the Papuan people. The Agreement called for the transfer of administration to the United Nations for an interim period, after which authority could be transferred to Indonesia. Due to Indonesian pressure the final agreement had reduced the UN interim administration period to 7 months although Bunker had initially envisaged a period of two years.44 In general the Dutch conceded to the Agreement, but Jakarta allowed detailed provisions regarding guarantees for the population and the right of selfdetermination.45 Whether these concessions by Jakarta were ever meant to be implemented remains highly doubtful.46 II. The Mandate of the United Nations for WNG The Agreement and its subsequent documents foresaw three phases for the United Nations in WNG: 1. Providing military observers to supervise the cease-fire that went into effect on 18 August 1962; 2. Administering the territory of WNG through the United Nations Temporary Executive Authority (UNTEA) with the help of a United Nations Security Force (UNSF), which was to maintain law and order; 41 42 43 44 45 46 Penders, see note 14, 360. A/RES/1752 (XVII) of 21 September 1962 henceforth the Agreement, reprinted as Annex to this paper. For a detailed account see Penders, see note 14, 357-363. van der Veur, see note 16, 55. See article XVI-XXI of the Agreement; according to article XX “The act of self-determination will be completed before the end of 1969.” For Indonesian adherence to these provisions see below. See under II. 3. Gruss, Case Study – West Irian 105 3. Dispatching a representative of the Secretary-General to participate in the arrangements for the act of free choice and to observe this act. 1. Cease-Fire Observation As the administration of WNG was, according to the Agreement, to be transferred to UNTEA on 1 October 1962 there was little time for preparations and the first UN military observers arrived in WNG as early as 24 August 1962. General Indar Jit Rikhye, military adviser to the Secretary-General, led the cease-fire observation team that consisted of 21 military observers, all but two of whom were already serving with UN missions.47 By the use of radio stations and leaflets Indonesian and Dutch armed forces were informed of and called to observe the ceasefire. After the Indonesian troops had been concentrated and their supply had been ensured General Rikhye informed the Secretary-General on 21 September 1962 that all actions concerning the cessation of hostilities had been accomplished, making UNTEA possible.48 2. UNTEA a. Preparations While the cease-fire monitors were already operating the General Assembly passed resolution 1752 (XVII) on 21 September 1962 by 89 votes to none and with 14 abstentions, thereby acknowledging the Agreement and authorising UNTEA, the first UN-mission to ever directly administer a territory.49 Also with regard to the financial issues UNTEA was unprecedented, as all expenses were shared equally by Indonesia and the Netherlands.50 The resolution conferred onto the Sec47 48 49 50 Saltford, see note 12, 17. Wainhouse, see note 22, 142; however one breach occurred on 21 August, 1962, when 14 Indonesian troops landed near Hollandia, see Saltford, see note 12, 17. M. Ottolenghi, “Stars and Stripes in Al-Fardos Square: The Implications for the International Law of Belligerent Occupation”, Fordham L. Rev. 72 (2003-2004), 2177 et seq. (2195). Article XXIV of the Agreement. 106 Max Planck UNYB 9 (2005) retary-General, and not onto the Security Council, the power to establish UNTEA under his jurisdiction and convey to him the power to carry out the Agreement.51 UNTEA was to assume quasi-governmental functions by administering the territory of WNG,52 legislating within certain restraints,53 appointing government officials and members of representative councils,54 and guaranteeing civil liberties and property rights55. UNSF was thus to assist UNTEA in the administration by maintaining law and order and was therefore an integral part of the UN-mission in helping to uphold its authority. By providing for UNSF, UNTEA was not reliant upon Dutch forces and could facilitate the “phasing-in” of Papuan and Indonesian personnel into the WNG police force.56 As U Thant described it in his annual report in 1963: “In these consultations [referring to the negotiations led by Ambassador Bunker], the desirability was emphasized of maintaining essential services in the territory without interruption. It was also agreed that steps would be taken to explain to the population the tasks entrusted to the United Nations, the measures proposed for the maintenance of law and order, and those relating to financial and monetary policies.”57 Preparations for UNTEA started immediately after the signing of the Agreement and prior to the passing of the authorising resolution. Swift action was essential, with only a period of six weeks from signing the Agreement to its implementation. 51 52 53 54 55 56 57 As Higgins, see note 12, 121 et seq., points out, the lack of debate concerning this issue at that time was surprising, especially with regard to the role of the Soviet Union. The Soviet Union earlier had stressed the point – concerning the UN Congo operation – that it was the right of the Security Council and not that of the Secretary-General to select the participating contingents participating in a UN peacekeeping action. Nevertheless, Article 14 was interpreted in a way allowing the Secretary-General a great deal of competences. The Agreement between both parties, the very limited time frame of the UN mission and the fact that no costs were to be born by the UN most likely contributed to this outcome. Article V of the Agreement. Article XI of the Agreement. Arts IX and XXIII of the Agreement. Article XXII of the Agreement. Higgins, see note 12, 124. GAOR 18th Sess. Suppl. 1, 36-40 covering the period 16 June 1962-15 June 1963. Gruss, Case Study – West Irian 107 Before the appointment of Dr. Djalal Abdoh as administrator of UNTEA on 22 October 1962, José Rolz-Bennett, assumed the role of an interim administrator. On 1 October 1962, he witnessed the raising of the UN flag next to the Dutch flag in Hollandia, the capital of WNG. Although there was some discussion whether the Papuan flag should be raised as well, it was decided that only the Dutch, retrospectively the Indonesian and the UN flag, should fly from official buildings.58 The “Morning Star”, the Papuan flag, had been adopted by the WNG Council as the official flag of the territory and was a powerful symbol of West Papuan nationalism, dating back to a nationalist movement before World War II.59 In order to simplify communications between UNTEA, liaison missions for Indonesia as well as the Netherlands were immediately established in Hollandia, providing a forum to which questions of concern to the parties could be addressed. b. Implementation aa. UNSF 1,500 UNSF troops arrived by 7 October 1962 with Major-General Said Uddin Khan as Commander. The government of Pakistan, after having been asked by the Secretary-General, provided for the entire contingent.60 The approximately 4,500 Dutch forces were placed under command of Major-General Khan once the United Nations had assumed responsibility. Repatriation of the Dutch forces was to commence “as rapidly as possible” and the withdrawal occurred according to a timetable agreed by Rolz-Bennett, General Khan and the Commander of the Netherlands forces in WNG.61 The Netherlands fully co-operated with UNSF and UNTEA, provided UNSF with equipment, and had fully repatriated its troops by 15 November 1962. All Indonesian forces, about 1,200, that had infiltrated to WNG were also placed under the command of General Khan and they participated in joint controls with UNSF; thereby the presence of Indonesian troops in WNG was legiti58 59 60 61 Higgins, see note 12, 137. Saltford, see note 12, 21. Wainhouse, see note 22, 14, points out this turning away from earlier practice deploying a multinational force was due to the relative small number of troops and the relatively short period of service. Wainhouse, see note 22, 148. Max Planck UNYB 9 (2005) 108 mised by the United Nations.62 According to an arrangement between UNTEA and Jakarta these troops were exchanged with fresh troops with better discipline. The 400 native soldiers of the Papuan Volunteer Corps ceased to be part of the Netherlands armed forces and were placed under the command of UNSF. Being a vast, extremely poorly developed mountainous island covered with dense forests, with practically no roads, communications and accessibility of the various regions proved to be major problems. This required splitting up the UNSF troops to smaller detachments and deploying them in the administrative towns, each contingent being independent in administrative and ancillary service.63 UNSF troops were positioned at six locations and with the help of aircrafts and crews provided by the governments of Canada and the United States, transportation and a working system of communications could be ensured only after some time.64 bb. UNTEA During the first weeks Rolz-Bennett was primarily concerned with replacing the Dutch administration with as little disruption as possible with UNTEA personnel. Despite UN expectations Dutch officials were for the most part not willing to stay during the UNTEA period but left WNG thus creating a vacuum.65 With only one quarter of the Dutch personnel remaining in WNG and a shortage of appropriately trained Papuans an international task force needed to be set up. Members of the secretariat of the United Nations and a few international experts filled the top positions of the administration, as these posts could not be covered by either Indonesian or Dutch nationals.66 The departure of Dutch officials also left numerous vacancies within the police force, since most officers had been of Dutch origin. To fill these empty posts, officers 62 63 64 65 66 Higgins, see note 12, 124. Wainhouse, see note 22, 145. See Wainhouse, see note 22, 145 et seq. van der Veur, see note 16, 59 at note 16 lays out the exact figures: “On September 1, 1962, the administration was manned by 2,540 Netherlands officials and 7,618 local employees. By October 1, these figures were down to 775 and 7,032 respectively.” Wainhouse, see note 22, 143, points out these numbers again shrunk to 250 by early November. Article IX of the Agreement. Gruss, Case Study – West Irian 109 from the Philippines were employed temporarily until Indonesian officials replaced them by March 1963.67 UNTEA faced further problems as it was not only difficult to employ enough personnel in time, but the United Nations staff was also ill prepared as to administer the territory. UNTEA lacked personnel capable of translating the Dutch files and records, which was necessary to administer the territory, and personnel able to communicate in Malay/Indonesian in order to address the native inhabitants.68 By the time Dr. Abdoh arrived in WNG, on 13 November 1962, Indonesia had begun to campaign for an early withdrawal of UNTEA and the abandonment of an act for self determination, hence further increasing the fragility of the situation. Peaceful protests in the first weeks after the arrival of UNTEA by Papuans and the display of Papuan flags had already caused the Indonesian government to call upon UNTEA to prevent such incidents. Steady Indonesian interference set off a great deal of hostility between many of the Papuans and the Indonesians.69 Jakarta openly stated in December 1962 that the “act of free choice” would probably not be decided by a one man one vote plebiscite but rather be determined in consultation with Papuan leaders.70 As Indonesian Foreign Minister Subandrio argued, an early integration of WNG into Indonesia would accelerate the rehabilitation of WNG in the light of the changed situation in the territory and the everincreasing unemployment.71 Although Abdoh contended that UNTEA was bound by the terms of the Agreement and an early withdrawal could only commence after a renewed agreement by the two parties, he urged U Thant that the UNTEA period should not be abbreviated.72 Indonesian demands and pressure to shorten the UNTEA administration period and immediately transfer the territory exacerbated the whole situation. Jakarta aimed at undermining the authority of UNTEA while at the same time clarifying that Papuan resistance to Indonesian rule was intolerable.73 Claims of an early withdrawal were backed by a joint declaration by representatives of the WNG Council asking “for a shortening of the UNTEA period of administration and 67 68 69 70 71 72 73 Wainhouse, see note 22, 149. van der Veur, see note 16, 59. Saltford, see note 12, 42. van der Veur, see note 16, 63. Saltford, see note 12, 31 et seq. With references Saltford, see note 12, 32. Saltford, see note 12, 45. 110 Max Planck UNYB 9 (2005) for unification with Indonesia ‘in the shortest possible time’”.74 Yet according to van der Veur Indonesia “dined, flattered, pressured, and (if necessary) intimidated, those [Papuan delegates] who did not succumb to Indonesian wishes.”75 Simultaneously the world held its breath, being focused on the Cuban missile crisis. Even though the Secretary-General resisted shortening the period of UNTEA, the Indonesian advance did not pass without effect. U Thant eventually conceded that Indonesian officials would be phased-in early, thus ensuring a smooth transfer of responsibility by 1 May 1963.76 Such a transfer meant to practically abandon the socalled “second phase” of UNTEA that was to last for a period left entirely to the discretion of the UNTEA Administrator and during which the Administrator could transfer all or part of the administration to Indonesia.77 Another concession to Sukarno was to allow the raising of the Indonesian flag next to the UN’s already on New Year’s Day 1963, despite the problems this might cause with the Papuan nationalists. For the Papuan nationalists, however, the implication of raising the Indonesian flag was a crucial point and several protests were reported.78 Throughout the period of UNTEA the situation was generally calm, apart from two incidents on 15 December 1962 that occurred in the aftermath of the ban of a demonstration in celebration of the anniversary of the Papuan flag.79 This celebration was banned by UNTEA after the Indonesian Foreign Minister had informed the Secretary-General that anti-Indonesian demonstrations might lead to an intervention by Indonesian troops.80 Contrariwise, UNTEA was unable to prevent Indonesian flag raising, thereby demonstrating its lack of authority over Indonesian officials.81 74 75 76 77 78 79 80 81 As reprinted by Higgins, see note 12, 131. van der Veur, see note 16, 63. By UNTEA announcement on 9 February 1963, stating the transfer of authority would occur on 1 May 1963 at 12:30; see van der Veur, see note 16, 64. First Phase of UNTEA Administration, see arts IX, X, and XI of the Agreement; Second Phase of UNTEA Administration see arts XII and XIII. Saltford, see note 12, 47 et seq. Saltford, see note 12, 43. Luard, see note 18, 342. Saltford, see note 12, 47. Gruss, Case Study – West Irian 111 The calmness of the situation during the UN-administration in WNG was mostly achieved by UNTEA giving into Indonesian interference and pressure on numerous occasions. 82 In order to avoid conflict with Indonesia, UN officials attempted to prevent public antiIndonesian or pro-independence expression.83 It is therefore highly questionable whether UNTEA fulfilled its obligation to defend rights and freedoms of the Papuan population, as set out in the Agreement. In the meantime especially the judicial organs were affected by the departure of the Dutch and UNTEA responded by appointing qualified Indonesian personnel.84 Yet the recruitment of Indonesian civil servants did take time and was part of the “phasing-in” of Indonesian personnel to facilitate the subsequent transfer of administrative responsibilities to Indonesia.85 At the same time relations between the Netherlands and Indonesia improved, last but not least, through UNTEA; and diplomatic relations resumed on 13 March 1963. In consideration of the economy UNTEA was concerned with a high level of unemployment. Most Dutch contractors, following the retreat of the Dutch officials, stopped working and returned to the Netherlands. This not only caused a high level of unemployment but also disrupted services. In co-operation with Indonesia UNTEA implemented projects re-establishing operation of basic services. The UN administration kept the general price level in check and ensured adequate supplies for the population.86 An outbreak of cholera, which had started spreading in the southwest of WNG, could be contained with the help of the World Health Organization. Prior to transferring authority to Indonesia UNTEA ensured that food supplies for the two months following its departure were available.87 By the end of April 1963 the phasing in of Indonesian personnel was completed with 1,564 Indonesian officials working in the administration.88 Additional Indonesian troops had arrived and UNSF had been concentrated in Biak for embarkation. Full administrative control was 82 83 84 85 86 87 88 van der Veur, see note 16, 72; Saltford, see note 12, 181. Luard, see note 18, 342. Higgins, see note 12, 130, note 3. See note 57. See note 57. P. W. van der Veur, “West Irian in the Indonesian Fold”, Asian Survey 3 (1963), 332 et seq. (333). See note 57. Max Planck UNYB 9 (2005) 112 transferred to Indonesia on 1 May 1963, with a second phase at best lasting a few hours, ending UNTEA’s mission. 3. Act of Free Choice After the United Nations had handed over responsibility of the territory to Indonesia all UNTEA personnel withdrew. Indonesia subsequently banned all partisan political activity, initiated control over the free press, and imposed restrictions on the movement of persons.89 In the following years, the Organisasi Papua Merdeka (OPM – Independent Papua Organisation) was founded and an armed resistance against the Indonesian army started.90 According to the Agreement, the Secretary-General dispatched a Representative, Ambassador Ortiz-Sanz, to WNG on 1 April 1968 in order to “advise, assist and participate” in a referendum determining the future status of the territory.91 Due to corruption of and repression by Indonesian officials, Western observers in WNG at this time agreed almost unanimously that an open election could not be won by Indonesia.92 Under pressure from Jakarta 1026 delegates were selected by election, by choice of social, cultural or religious organisations, or by eight regional assemblies.93 Efforts by OrtizSanz to facilitate a more direct representation remained unsuccessful and Jakarta maintained tight political control over WNG.94 The delegates in their vote unanimously wished for WNG to remain with Indonesia. Although Ortiz-Sanz had reservations about the implementation of article XXII of the Agreement in view of the “rights of free speech, freedom of movement and of assembly, of the inhabitants of the area” he reported that within: 89 90 91 92 93 94 van der Kreuf, see note 16, 695. E. Brundige/ W. King/ P. Vahali/ S. Vladeck/ X. Yuan, “Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control”, of 2004, available at <http://www.law. yale.edu/outside/html/Public_Affairs/426/westpapuahrights.pdf, 18>. See arts XVII and XVIII of the Agreement. US Department of State, Consular Trip to West Irian, 6 January to 2 February 1968, available at: <http://www2.gwu.edu/~nsarchiv/NSAEBB/ NSAEBB128/8.%20Airgram%20A-570%20from%20Jakarta%20to%20 State%20Department,%20May%2010,%201968.pdf>, 16. Brundige/ King/ Vahali/ Vladeck/ Yuan, see note 90, 19. Doc. A/7723 of 6 November 1969. Gruss, Case Study – West Irian 113 “the limitations imposed by the geographical characteristics of the territory and the general political situation in the area, an act of free choice has taken place in West Irian in accordance with Indonesian practice, in which the representatives of the population have expressed their wish to remain with Indonesia.”95 III. Evaluation A telegram by the US Embassy in Jakarta that was declassified last year gives a different view of the situation: “The act of free choice (AFC) in West Irian is unfolding like a Greek tragedy, the conclusion preordained. The main protagonist, the GOI [Government of Indonesia], cannot and will not permit any resolution other than the continued inclusion of West Irian in Indonesia. Dissident activity is likely to increase as the climax is reached but the Indonesian armed forces will be able to contain and, if necessary, suppress it.”96 Nevertheless, the outcome of the act of free choice was only the fruit of a seed, which had been planted much earlier. The UN’s involvement in WNG took place during the Cold War, a fact, which naturally influenced the whole UN system, its activity, and the role of other actors as well. The political climate greatly differed from the situation today and most likely from that in the future. At a time of an escalation of the Cold War, with the failed invasion of the Bay of Pigs, the Berlin Wall being built, and the Cuban Missile Crisis, the United States exerted pressure on the Netherlands to concede to an agreement that should prevent Indonesia from siding with Moscow.97 Indonesia, additionally, had successfully employed military threat and used its armed forces to attain its goal of incorporating WNG with the blessing of the United Nations. Only a few years later Indonesia, most likely encouraged by its success in assimilating WNG, once again enlarged its terri95 96 97 Ibid. Telegram – Summary The Act of Free Choice of 9 July 1969, available at: <http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB128/26.%20 Telegram%203614%20from%20Jakarta%20to%20State%20Department, %20June%209,%201969.pdf>, 1. Especially on this topic see declassified documents by the US Department of State at: <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB128/ index.htm>. 114 Max Planck UNYB 9 (2005) tory by use of force, in an outright annexation of East Timor.98 Through embracing the Agreement, the United Nations had agreed to secure its proper fulfilment. As the official Report of the Secretary General99 shows, the “act of free choice” was not conducted in accordance with international practice and the United Nations failed to protect the political rights and freedoms of the Papuan people, regardless of the acknowledged right of self-determination in the Agreement. Diametrically opposed views on the right of self-determination furthermore were inherent in the Agreement. On the one hand, the Papuan people were not involved in any consultations regarding the future status of WNG and the transfer of control treated the Papuan people as if they had no right to self-determination. On the other hand, the Agreement provided for an act of self-determination, clearly contradicting the genesis of the Agreement.100 Determining a date for the act of self-determination would have been decisive for its result but no such date had been specified in the Agreement. Had the act of selfdetermination occurred during the UNTEA period, it would have been safe to presume veracity of such an act. By 1969, however, Indonesia had already administered the territory for six years and was therefore in a position to manipulate the subsequent poll.101 Prior to conducting the act of free choice the Papuans were not offered any other concrete proposals, or economic assistance in case of independence, by any other nation. Consultations with neither Papua New-Guinea nor Australia, regarding the unification of the island, were allowed to be conducted. The strong presence of armed forces finally did its part in determining the outcome of the act of self determination. The UN acted upon a resolution based on the Agreement by the two adversaries and did not act under Chapter VII. Only the consent of Indonesia and the Netherlands, regardless of their motivation, made UNTEA possible. Seconding in a decolonisation process and acting as a “neutral” buffer between two adversaries, the United Nations allowed a smooth transfer of administration. In distinction from missions that aim at state (re)-construction or nation construction, which usually occur in post-conflict situations and take more time, UNTEA adminis98 99 100 101 See M. Benzing, in this Volume. See note 94. R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, AJIL 95 (2001), 583 et seq. (591). R. Wilde, “Representing International Territorial Administration: A Critique of Some Approaches”, EJIL 15 (2004), 71 et seq. (87). Gruss, Case Study – West Irian 115 tered the territory of WNG for a very short period. Aimed at ensuring a peaceful hand-over of administration from the former Dutch colonial power to Indonesia, UNTEA only provided for a transitional solution. Prevention of an imminent armed conflict between Indonesia and the Netherlands is, however, certainly an achievement of UNTEA. With regard to the direct administration of the territory, after some difficulties in the beginning, the UN mission was successful and certainly instructive for future missions, although it took thirty years until such significant administrative powers were once again assigned to the United Nations.102 The great exodus of Dutch personnel caused severe disruption in services and great economic challenges that could by and large be absorbed through UNTEA. However, only by yielding to constant Indonesian pressure was UNTEA able to maintain the general calm of the situation. Although further armed conflict and an escalation between Indonesia and the Netherlands could be circumvented, the Agreement and the UN involvement appears to be nothing more than a face-saving device for the former colonial power, especially in view of the conflicting ideas regarding self-determination and no inclusion of a specified date for the “act of free choice” in the Agreement. What meant conflict-prevention for the former colonial power and its legal successor, meant, contrariwise, averting self-determination for the Papuan people founded on the principle of uti possidetis juris.103 Upholding the right to an independent nation for the Papuan people was impossible for the Dutch government, especially against the background of a very narrowly construed external right of self-determination.104 The idea of establishing a UN trust for WNG, nevertheless, had been discussed and the Netherlands probably could have acted unilaterally in this matter; such a proceeding would have without doubt seriously exacerbated the situation. Most certainly, this would have also set a precedent contrary to uti possidetis juris endangering the territorial integrity in particular of numerous newly founded decolonised states, bearing in mind that eventually independence is the final objective of a UN trust.105 Despite the UN 102 103 104 105 See L. Keller, in this Volume. Wilde, see note 100, 89 rightly argues that the labelling of UNTEA as a “conflict-prevention” mission legitimises the mission by its achievements neglecting the UN’s role in denying the Papuan people their right to selfdetermination. See J. Friedrich, in this Volume. See Article 76 UN Charta. 116 Max Planck UNYB 9 (2005) Resolution 1514 (XV)106, which embraced the right of self-determination, neither a right to secession nor to democratic representation of ethnic groups within a territory could be assumed, but only a right to external independence from the colonial power.107 As the strong resistance by the international community in the cases of Katanga and Biafra had proven,108 the United Nations would impede a secession attempt by one part of its Member States.109 In line with this restrictive interpretation of the right to self-determination, the UN’s role regarding WNG was actually pivotal in denying the Papuan people self-determination, as set forth in the Agreement.110 As the exemplary case of Kosovo shows, the interpretation of self-determination is still a far-reaching matter today.111 During the last decades, the separatist movement in WNG has been very active and numerous clashes with the Indonesian army occurred.112 A great number of refugees keep moving eastwards into Papua New Guinea to avoid reprisals by the Indonesian military.113 The political transformation process in Indonesia finally led to a bill in 2001, granting special autonomy to WNG. Whether this step will suffice remains to be seen. 106 107 108 109 110 111 112 113 A/RES/1514 (XV) of 14 December 1960. For a concise account of the right of self-determination during the era of decolonisation see G.J. Simpson, “The Diffusion of Sovereignty: SelfDetermination in the Postcolonial Age”, Stanford J. Int’l L. 32 (1996), 255 et seq. (264 et seq). E. Hasani, “Uti Possidetis Juris: From Rome to Kosovo”, Fletcher Forum of World Affairs 27 (2003), 85 et seq. (88). Simpson, see note 107, 264. The case of East Timor is an exception, as East Timor had been annexed by Indonesia and had not been part of the Dutch East Indies, meaning uti possidetis juris could not apply in this case. In its Resolution A/RES/3485 (XXX) of 12 December 1975 the United Nations also condemned the annexation by Indonesia. Wilde, see note 100, 591. For a discussion on the contemporary discussion see J. Friedrich, in this Volume. “New Guinea: Crash Landing in the 20th Century”, of 8 January 1994, Neue Zürcher Zeitung. See above. Gruss, Case Study – West Irian 117 Annex GAOR 17 Sess. Annexes, Agenda Item 89, Doc. A/5170, Annex of 20 August 1962 Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian) The Republic of Indonesia and the Kingdom of the Netherlands, Having in mind the interests and welfare of the people of the territory of West New Guinea (West Irian) hereinafter referred to as “the territory”, Desirous of settling their dispute regarding the territory, Now, therefore, agree as follows: RATIFICATION OF AGREEMENT AND RESOLUTION OF THE GENERAL ASSEMBLY OF THE UNITED NATIONS Article I After the present Agreement between Indonesia and the Netherlands has been signed and ratified by both Contracting Parties, Indonesia and the Netherlands will jointly sponsor a draft resolution in the United Nations under the terms of which the General Assembly of the United Nations takes note of the present Agreement, acknowledges the role conferred upon the Secretary-General of the United Nations therein, and authorizes him to carry out the tasks entrusted to him therein. 118 Max Planck UNYB 9 (2005) TRANSFER OF ADMINISTRATION Article II After the adoption of the resolution referred to in article I, the Netherlands will transfer administration of the territory to a United Nations Temporary Executive Authority (UNTEA) established by and under the jurisdiction of the Secretary-General upon the arrival of the United Nations Administrator appointed in accordance with article IV. The UNTEA will in turn transfer the administration to Indonesia in accordance with article XII. UNITED NATIONS ADMINISTRATION Article III In order to facilitate the transfer of administration to the UNTEA after the adoption of the resolution by the General Assembly, the Netherlands will invite the Secretary-General to send a representative to consult briefly with the Netherlands Governor of the territory prior to the latter’s departure. The Netherlands Governor will depart prior to the arrival of the United Nations Administrator. Article IV A United Nations Administrator, acceptable to Indonesia and the Netherlands, will be appointed by the Secretary-General. Article V The United Nations Administrator, as chief executive officer of the UNTEA, will have full authority under the direction of the SecretaryGeneral to administer the territory for the period of the UNTEA administration in accordance with the terms of the present Agreement. Gruss, Case Study – West Irian 119 Article VI 1. The United Nations flag will be flown during the period of United Nations administration. 2. With regard to the flying of the Indonesian and Netherlands flags, it is agreed that this matter will be determined by agreement between the Secretary-General and the respective Governments. Article VII The Secretary-General will provide the UNTEA with such security forces as the United Nations Administrator deems necessary; such forces will primarily supplement existing Papuan (West Irianese) police in the task of maintaining law and order. The Papuan Volunteer Corps, which on the arrival of the United Nations Administrator will cease being part of the Netherlands armed forces, and the Indonesian armed forces in the territory will be under the authority of, and at the disposal of, the Secretary-General for the same purpose. The United Nations Administrator will, to the extent feasible, use the Papuan (West Irianese) police as a United Nations security force to maintain law and order and, at his discretion, use Indonesian armed forces. The Netherlands armed forces will be repatriated as rapidly as possible and while still in the territory will be under the authority of the UNTEA. Article VIII The United Nations Administrator will send periodic reports to the Secretary-General on the principal aspects of the implementation of the present Agreement. The Secretary-General will submit full reports to Indonesia and the Netherlands and may submit, at his discretion, reports to the General Assembly or to all United Nations Members. 120 Max Planck UNYB 9 (2005) FIRST PHASE OF THE UNTEA ADMINISTRATION Article IX The United Nations Administrator will replace, as rapidly as possible, top Netherlands officials, as defined in annex A, with non-Netherlands, non-Indonesian officials during the first phase of the UNTEA administration which will be completed on 1 May 1963. The United Nations Administrator will be authorized to employ, on a temporary basis, all Netherlands officials other than top Netherlands officials defined in annex A, who wish to serve the UNTEA, in accordance with such terms and conditions as the Secretary-General may specify. As many Papuans (West Irianese) as possible will be brought into administrative and technical positions. To fill the remaining required posts, the UNTEA will have authority to employ personnel provided by Indonesia. Salary rates prevailing in the territory will be maintained. Article X Immediately after the transfer of administration to the UNTEA, the UNTEA will widely publicize and explain the terms of the present Agreement, and will inform the population concerning the transfer of administration to Indonesia and the provisions for the act of selfdetermination as set out in the present Agreement. Article XI To the extent that they are consistent with the letter and spirit of the present Agreement, existing laws and regulations will remain in effect. The UNTEA will have the power to promulgate new laws and regulations or amend them within the spirit and framework of the present Agreement. The representative councils will be consulted prior to the issuance of new laws and regulations or the amendment of existing laws. Gruss, Case Study – West Irian 121 SECOND PHASE Article XII The United Nations Administrator will have discretion to transfer all or part of the administration to Indonesia at any time after the first phase of the UNTEA administration. The UNTEA’s authority will cease at the moment of transfer of full administrative control to Indonesia. Article XIII United Nations security forces will be replaced by Indonesian security forces after the first phase of the UNTEA administration. All United Nations security forces will be withdrawn upon the transfer of administration to Indonesia. INDONESIAN ADMINISTRATION AND SELFDETERMINATION Article XIV After the transfer of full administrative responsibility to Indonesia, Indonesian national laws and regulations will in principle be applicable in the territory, it being understood that they be consistent with the rights and freedoms guaranteed to the inhabitants under the terms of the present Agreement. New laws and regulations or amendments to the existing ones can be enacted within the spirit of the present Agreement. The representative councils will be consulted as appropriate. Article XV After the transfer of full administrative responsibility to Indonesia, the primary task of Indonesia will be further intensification of the education of the people, of the combating of illiteracy, and of the advancement of their social, cultural and economic development. Efforts also will be made, in accordance with present Indonesian practice, to accelerate the participation of the people in local government through peri- 122 Max Planck UNYB 9 (2005) odic elections. Any aspects relating to the act of free choice will be governed by the terms of this Agreement. Article XVI At the time of the transfer of full administrative responsibility to Indonesia a number of United Nations experts, as deemed adequate by the Secretary-General after consultation with Indonesia, will be designated to remain, wherever their duties require their presence. Their duties will, prior to the arrival of the United Nations Representative, who will participate at the appropriate time in the arrangements for selfdetermination, be limited to advising on, and assisting in, preparations for carrying out the provisions for self determination except in so far as Indonesia and the Secretary-General may agree upon their performing other expert functions. They will be responsible to the SecretaryGeneral for the carrying out of their duties. Article XVII Indonesia will invite the Secretary-General to appoint a Representative who, together with a staff made up, inter alia, of experts referred to in article XVI, will carry out the Secretary-General’s responsibilities to advise, assist and participate in arrangements which are the responsibility of Indonesia for the act of free choice. The Secretary-General will, at the proper time, appoint the United Nations Representative in order that he and his staff may assume their duties in the territory one year prior to the date of self-determination. Such additional staff as the United Nations Representative might feel necessary will be determined by the Secretary-General after consultations with Indonesia. The United Nations Representative and his staff will have the same freedom of movement as provided for the personnel referred to in article XVI. Article XVIII Indonesia will make arrangements, with the assistance and participation of the United Nations Representative and his staff, to give the people of the territory the opportunity to exercise freedom of choice. Such arrangements will include: Gruss, Case Study – West Irian 123 a. Consultations (Musjawarah) with the representative councils on procedures and appropriate methods to be followed for ascertaining the freely expressed will of the population; b. The determination of the actual date of the exercise of free choice within the period established by the present Agreement; c. Formulation of the questions in such a way as to permit the inhabitants to decide (a) whether they wish to remain with Indonesia; or (b) whether they wish to sever their ties with Indonesia; d. The eligibility of all adults, male and female, not foreign nationals, to participate in the act of self-determination to be carried out in accordance with international practice, who are resident at the time of the signing of the present Agreement and at the time of the act of selfdetermination, including those residents who departed after 1945 and who return to the territory to resume residence after the termination of Netherlands administration. Article XIX The United Nations Representative will report to the Secretary-General on the arrangements arrived at for freedom of choice. Article XX The act of self-determination will be completed before the end of 1969. Article XXI 1. After the exercise of the right of self-determination, Indonesia and the United Nations Representative will submit final reports to the Secretary-General who will report to the General Assembly on the conduct of the act of self determination and the results thereof. 2. The Parties to the present Agreement will recognize and abide by the results of the act of self-determination. 124 Max Planck UNYB 9 (2005) RIGHTS OF THE INHABITANTS Article XXII 1. The UNTEA and Indonesia will guarantee fully the rights, including the rights of free speech, freedom of movement and of assembly, of the inhabitants of the area. These rights will include the existing rights of the inhabitants of the territory at the time of the transfer of administration to the UNTEA. 2. The UNTEA will take over existing Netherlands commitments in respect of concessions and property rights. 3. After Indonesia has taken over the administration it will honour those commitments which are not inconsistent with the interests and economic development of the people of the territory. A joint Indonesian-Netherlands commission will be set up after the transfer of administration to Indonesia to study the nature of the above-mentioned concessions and property rights. 4. During the period of the UNTEA administration there will be freedom of movement for civilians of Indonesian and Netherlands nationalities to and from the territory. Article XXIII Vacancies in the representative councils caused by the departure of Netherlands nationals, or for other reasons, will be filled as appropriate consistent with existing legislation by elections, or by appointment by the UNTEA. The representative councils will be consulted prior to the appointment of new representatives. FINANCIAL MATTERS Article XXIV 1. Deficits in the budget of the territory during the UNTEA administration will be shared equally by Indonesia and the Netherlands. 2. Indonesia and the Netherlands will be consulted by the SecretaryGeneral in the preparation of the UNTEA budget and other financial Gruss, Case Study – West Irian 125 matters relating to United Nations responsibilities under the present Agreement; however, the Secretary-General will have the final decision. 3. The Parties to the present Agreement will reimburse the SecretaryGeneral for all costs incurred by the United Nations under the present Agreement and will make available suitable funds in advance for the discharge of the Secretary-General’s responsibilities. The Parties to the present Agreement will share on an equal basis the costs of such reimbursements and advances. PREVIOUS TREATIES AND AGREEMENTS Article XXV The present Agreement will take precedence over any previous agreement on the territory. Previous treaties and agreements regarding the territory may therefore be terminated or adjusted as necessary to conform to the terms of the present Agreement. PRIVILEGES AND IMMUNITIES Article XXVI For the purposes of the present Agreement, Indonesia and the Netherlands will apply to United Nations property, funds, assets and officials the provisions of the Convention on the Privileges and Immunities of the United Nations. In particular, the United Nations Administrator, appointed pursuant to article IV, and the United Nations Representative, appointed pursuant to article XVII, will enjoy the privileges and immunities specified in section 19 of the Convention on the Privileges and Immunities of the United Nations. RATIFICATION Article XXVII 1. The present Agreement will be ratified in accordance with the constitutional procedures of the Contracting Parties. 126 Max Planck UNYB 9 (2005) 2. The instruments of ratification will be exchanged as soon as possible at the Headquarters of the United Nations by the accredited representatives of the Contracting Parties. 3. The Secretary-General will draw up a proces-verbal of the exchange of the instruments of ratification and will furnish a certified copy thereof to each Contracting Party. ENTRY INTO FORCE Article XXVIII 1. The present Agreement will enter into force upon the date of the adoption by the General Assembly of the resolution referred to in article I of the present Agreement. 2. Upon the entry into force of the present Agreement, the SecretaryGeneral of the United Nations will register it in accordance with Article 102 of the Charter. AUTHENTIC TEXT Article XXIX The authentic text of the present Agreement is drawn up in the English language. Translations in the Indonesian and Netherlands languages will be exchanged between the Contracting Parties. IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized for that purpose by their respective Governments, have signed the present Agreement. DONE at the Headquarters of the United Nations, New York, on this fifteenth day of August 1962, in three identical copies, of which one shall be deposited with the Secretary-General and one shall be furnished to the Government of each of the Contracting Parties. (Signed) Subandrio, For the Republic of Indonesia; J. H. van Roijen, For the Kingdom of the Netherlands; C. Schurmann, For the Kingdom of the Netherlands UNTAC in Cambodia – from Occupation, Civil War and Genocide to Peace Lucy Keller* I. II. Introduction Historical Overview 1. Union Indochinoise Française and Cambodia’s Independence from France 2. The First Indo-China War and the Geneva Conference 3. The Second Indo-China War and Cambodia’s Way into Civil War 4. The Third Indo-China War: The Khmer Rouge Regime 5. Vietnam’s Invasion of Cambodia: The “People’s Republic of Kampuchea” 6. The Conflict before the Security Council and the General Assembly III. Peace Negotiations 1. The Paris Peace Conference in 1989 2. The Way to the Paris Agreements 3. The Paris Agreements – Contents and Objectives a. Structure of the Paris Agreements b. The Final Act and the Declaration c. The Comprehensive Settlement Agreement aa. The Supreme National Council bb. Elections cc. Human Rights dd. Constitutional Principles d. The Guarantees Agreement * The author wishes to thank Markus Benzing, Ulrike Deutsch and Alexandra Hilal Guhr for their helpful comments on this article. A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 127-178. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. Max Planck UNYB 9 (2005) 128 IV. V. VI. The Territorial Administration of Cambodia 1. The UN Advance Mission in Cambodia 2. The UN Transitional Authority in Cambodia a. Resolution 745 (1992) – Legal Basis of UNTAC b. UNTAC – Mandate and Implementation aa. The Mandate and its Limitations bb. Civil Administration by UNTAC cc. Military Arrangements dd. Human Rights ee. Elections c. UNTAC’s Operation – Success or Failure? Post-Conflict Justice in Cambodia 1. Negotiations on a Khmer Rouge Tribunal 2. Establishing the Khmer Rouge Tribunal a. The Extraordinary Chambers and their Jurisdiction b. Procedural Law, Fair Trial and Penalties 3. Post-Conflict Justice in Cambodia? Conclusions I. Introduction The conflict in Cambodia1 consists of different intertwined components.2 Since its emergence from the French protectorate in the 1950s, Cambodia has suffered not only from side-effects of the war in Vietnam in the 1960s and 1970s, including massive bombardment by US forces, it also endured devastating civil conflicts and the destructive totalitarian 1 2 Since its independence from French colonialism, Cambodia’s official designation changed repeatedly, the different terms standing for the respective political change: “Kingdom of Cambodia” (1954-1970), “Khmer Republic” (1970-1975), “Democratic Kampuchea” (1976-1979), “Peoples Republic of Kampuchea” (1979-1989), “State of Cambodia” (1989-1993); in 1993, the constituent assembly decided upon the renaming of “Cambodia”; cf. P. Hazdra, Die UNO-Friedensoperationen in Kambodscha, 1997, 34. In order to maintain a uniform terminology and as “Kampuchea”, albeit being the original country designation in the Khmer language, is occupied with negative connotations, the term “Cambodia” will be used as the state’s name throughout the following study. Cf. A. Rapp/ C. Philipp, “Conflicts Cambodia/Kampuchea”, in: R. Wolfrum (ed.), United Nations: Law, Policies and Practice, Vol. I, 1995, 200 et seq. Keller, Case Study – Cambodia 129 Khmer3 Rouge regime under Pol Pot, under which approximately one million Cambodian people perished.4 The intervention of Vietnamese troops in 1979 brought the Pol Pot regime to an end and initiated a period in which several hundred thousand Cambodians fled the country. Others became internally displaced as the newly installed government and the opposition coalition fought for control of the country. Until the 1980s, Cambodia was kept in a state of war causing not only death to countless persons but also the state’s isolation from the rest of the world. The United Nations had been searching for a peaceful solution since 1978, when the Sub-Commission on Prevention of Discrimination and Protection of Minorities investigated Cambodia’s human rights situation during the period of the Khmer Rouge regime.5 From the first involvement of the UN until today, the international community made immense efforts to help Cambodia to overcome its desperate situation and establish a solid peace plan. The following study first offers a historical overview of Cambodia (II.), then studies the peace process and the Paris Peace Agreements (III.), followed by an analysis of the United Nations territorial administration of Cambodia (IV.), and then an analysis of Cambodia’s post-conflict situation (V.) finally leading to conclusions (VI.). II. Historical Overview Cambodia is located in Indochina; this is not only a geographical characterisation, but also refers to the region’s historical past. The country is situated both geographically and historically in the area between the two ancient cultures of India and China. Throughout history, the region of Indochina was highly influenced from both sides in many enriching but also oppressive ways.6 3 4 5 6 The word “Khmer” describes the ethnic group of Cambodia’s indigenous and predominant people and moreover the indigenous Cambodian language; cf. Hazdra, see note 1, 34. See B. Boutros-Ghali, The United Nations and Cambodia 1991-1995, The United Nations Blue Book Series, Vol. II, 1995, 5. Cf. under II. 4. Report of a Finnish Inquiry Commission, “Kampuchea: Decade of the Genocide”, in: K. Kiljunen (ed.) 1986, 1 et seq. 130 Max Planck UNYB 9 (2005) In the early days of Cambodian history, from the first to the sixth century AD, Cambodia belonged largely to the Southeast Asian kingdom of Funan, which played a fundamental role in developing the political institutions and culture of the later Khmer state. It was the subsequent Angkorian era, beginning in the eighth century, which transformed Cambodia into a powerful kingdom. Forces of the Thai kingdom sacked Angkor in 1431. The four centuries from the desertion of Angkor to the establishment of a protectorate under the French in 1863 are historically not well researched. Evidence from the period largely consists of Chinese references to Cambodia.7 1. Union Indochinoise Française and Cambodia’s Independence from France In 1863, France established a protectorate and controlled the Union Indochinoise Française (French-Indochina Union), i.e. the three modernday states Vietnam, Laos and Cambodia.8 France’s purpose for the control of Cambodia was strategic; given the political competition with the British in the region, France wanted a buffer zone between their main interests in Vietnam and Thailand.9 The Union Indochinoise was a political and administrative entity headed by a French Governor-General. Under the protectorate system, Cambodia became a peripheral area, widely uncared for by France as economic benefits from Cambodia were negligible. Hence, the traditional society remained to a large extent intact. Under the protectorate treaty concluded in 1863, even the Cambodian monarchy was preserved intact. Until the beginning of World War II and apart from a peasant uprising in 1916, the protectorate’s condition can be described as relatively peaceful.10 In the ensuing period of French rule, Cambodian nationalism and opposition to French rule – arising from the initiative of a few, influential urban-based elites of educated Cambodians – began to develop.11 In 7 8 9 10 11 See D.P. Chandler, A History of Cambodia, 1996, 81. Chandler, see note 7, 137 et seq. L. Fernando, “Khmer Socialism, Human Rights and the UN Intervention”, in: A. Tay (ed.), East Asia: Human Rights, Nation-Building, Trade, 1999, 449 et seq. Chandler, see note 7, 153 et seq. M.F. Herz, A Short History of Cambodia, 1958, 69 et seq. Keller, Case Study – Cambodia 131 order to exert control on the protesting Cambodian factions, France supported the accession of nineteen-year-old Prince Norodom Sihanouk to the throne. From the French point of view, Sihanouk was an ideal candidate because of his youth, his lack of experience and his pliability.12 This turned out to be a major miscalculation as Norodom Sihanouk would go on dominating national politics for the subsequent years before being overthrown by a coup d’Etat in 1970.13 In 1945, Japan disarmed the French forces, occupied the whole territory of Indo-China, declared Cambodia independent and changed the state’s name to the Khmer “Kampuchea”.14 After World War II, several Cambodian factions continued to fight for independence and partially reached this goal in 1946 when Cambodia attained inner autonomy.15 France, newly regaining control over Cambodia, kept Sihanouk on the throne and held elections for a Constituent Assembly to advise the King on a constitution. This 1947 constitution – remaining in force until 1970 – stipulated inter alia Cambodia to be a monarchy, Cambodian to be the official language and enumerated the freedoms, rights and duties of all Cambodians.16 2. The First Indo-China War and the Geneva Conference The first Indo-China War (1946-1954) was a war of independence, i.e. a war in which Cambodia fought against France for deliverance of its status as a protectorate.17 After having attained inner autonomy from France, the opposition movements began to encroach on the entire Cambodian people. In accordance with its will, Sihanouk declared Cambodia’s absolute independence in 1953. France accepted the Kingdom of Cambodia’s full autonomy and confirmed it at the Geneva Conference on Indo-China in 1954.18 12 13 14 15 16 17 18 Chandler, see note 7, 169 et seq. Herz, see note 11, 65. Hazdra, see note 1, 37. Hazdra, see note 1, 37. S.P. Marks, “The new Cambodian constitution: From civil war to a fragile democracy”, Colum. Hum. Rts L. Rev. 26 (1994), 45 et seq. J. Cable, The Geneva Conference of 1954 on Indochina, 1986, 9 et seq. Cf. Cable, see note 17, 146 et seq. 132 Max Planck UNYB 9 (2005) The main purpose of the Geneva Conference was to re-establish peace in the Indo-Chinese region which concerned first of all the Vietnamese and French hostilities. The participants to the conference – the three states of Indo-China, France, the United Kingdom, the Soviet Union, the United States and the People’s Republic of China – recognised furthermore the independence of Vietnam, Laos and Cambodia.19 Thus, the French protectorate came to an end in 1953 and France subsequently had to remove its troops from the former Indo-China region.20 One year after its independence, Cambodia became a member of the United Nations.21 The UN played no part in this process of independence nor played a role in the peace negotiations. One reason for the UN absence might have been that France refused to involve the United Nations. Another is that decolonisation and state’s independency issues in general were not a specific concern of the UN at this time.22 3. The Second Indo-China War and Cambodia’s Way into Civil War The period from 1954 to 1970 was characterised by the controversial figure of King Norodom Sihanouk. Although Sihanouk was considered by the majority of the Cambodian people a genuine patriot, having liberated the country from the French protectorate, his totalitarian and autocratic style of government provoked vast antagonism both by the right and the left groups in the country, i.e. the military forces and the communist Khmer Rouge.23 Sihanouk’s principal opponents at the beginning of this post-colonial reign, the Democrats, were driven violently from the political field. His suppression of internal political dissent also held the country’s communist forces in check. Hence, from 1955 until 1970 no opposition to the Sihanouk regime existed in the 19 20 21 22 23 Cable, see note 17, 146 et seq. Rapp/ Philipp, see note 2, 200. Cf. A/RES/995 (X) of 14 December 1955. Decolonisation became a general issue in the UN with the “Declaration on the Granting of Independence to Colonial Countries and People”, A/RES/1514 (XV) of 14 December 1960; Rapp/ Philipp, see note 2, 201. Hazdra, see note 1, 38. Keller, Case Study – Cambodia 133 Kingdom of Cambodia.24 The Sihanouk years can moreover be described as an era of corruption, nepotism, and of an economic and political system that was rapidly falling apart.25 During the second Indo-China War (1970-1975), Cambodia’s status was to be one of neutrality, given that the Geneva peace treaty had defined its international political status as neutral.26 However, by the middle of the 1960s, Cambodian neutrality turned out to be a farce: Sihanouk authorised the presence of large-scale North Vietnamese bases on Cambodian territory and their use of the Cambodian port Sihanoukville as well as over-flights by South Vietnamese and US troops.27 Cambodia became involved in the war in 1970 when the U.S. dispatched troops to South Vietnam and bombed alleged communist base camps in Cambodia.28 In the same year, while Sihanouk stayed abroad, a coup d’Etat brought Lon Nol to power and established the “Khmer Republic”.29 After the National Assembly cast a vote of no confidence against Sihanouk, Lon Nol abolished the monarchy and proclaimed the constitution of the Khmer Republic.30 Lon Nol waged the second Indo-China War on the side of South Vietnam and permitted the U.S. and South Vietnam forces officially to operate on Cambodian territory against Vietnamese communists. The east of the country, where numerous North Vietnamese rebels sought refuge, was repeatedly and heavily bombed by U.S. bombers and in Cambodia’s centre, civil war dominated by the Khmer Rouge guerrillas prevailed.31 In 1975, the war in Vietnam ended with South Vietnam’s capitulation and the removal of U.S. troops from Indo-China. Hence, communist troops were victorious in both Vietnam and Cambodia. 24 25 26 27 28 29 30 31 Cf. Chandler, see note 7, 191 et seq. Hazdra, see note 1, 38 et seq. Cable, see note 17, 83. Cf. Hazdra, see note 1, 39. Rapp/ Philipp, see note 2, 201. Cf. Hazdra, see note 1, 41. Marks, see note 16, 45 et seq. An estimated number of 400,000 persons fell victim to the U.S. bombardments; cf. Rapp/ Philipp, see note 2, 201. Max Planck UNYB 9 (2005) 134 4. The Third Indo-China War: The Khmer Rouge Regime After five years of great internal conflict, Lon Nol was removed from power in April 1975 by the Communist Party of Kampuchea (CPK), also known as Khmer Rouge. The communist regime directed by Pol Pot renamed the country “Democratic Kampuchea”. In May 1975, the Khmer Rouge promulgated the Democratic Kampuchea’s new constitution providing for a People’s Representative Assembly as the supreme national policy-making body.32 The People’s Representative Assembly was responsible for electing a government, a state presidium and the judges. Sihanouk, returning to Cambodia in 1975, served as formal head of state at the regime’s beginning, but by 1976, he “retired” and was held under house arrest for the rest of the Khmer Rouge regime.33 Democratic Kampuchea’s institutions were minimal and usually charged with maintaining compliance with the party’s decisions and doctrine. Apparently, the People’s Representative Assembly held its first and only plenary session for three days in 1976 and no judges were appointed. The constitution and affirmation of rights were irrelevant to the CPK’s endeavour to transform Cambodia into a distorted communist social order. In fact, no legal system existed in Cambodia during the Khmer Rouge regime. The Democratic Kampuchea’s policies were aimed at radically transforming Cambodia into a new society, breaking completely with its past. Not only were traditions, beliefs and earlier ways of life forbidden,34 the regime abolished money, markets, formal education, Buddhism, books, private property and freedom of movement as well.35 Despite the CPK’s plan to build a classless, uniform Khmer society, the Cambodian people was divided into different social categories. Those who had lived in the territory before 1975 were considered “base people”, while those who lived in the country after that time were considered “new people”. Base people enjoyed more privileges; new people were considered politically suspect and were thus reduced to labour in the rice fields.36 To achieve the aim of a growing economy, approximately three million people were evacuated from the cities throughout 32 33 34 35 36 Marks, see note 16, 45 et seq. B. Kiernan, The Pol Pot Regime, 1996, 54. Kiernan, see note 33, 54. Chandler, see note 7, 209. Kiernan, see note 33, 159 et seq., 251 et seq. Keller, Case Study – Cambodia 135 the country, and were forced to work in the countryside and labour camps. The tragic result of the destructive Khmer Rouge regime is that one to two million37 people died through execution in the “killing fields”, through torture, starvation and disease. In addition to the Khmer Rouge terror, several armed incidents such as border disputes between Cambodia and Vietnam occurred. The CPK accused Vietnam of sabotaging the Cambodian revolution by infiltrating their agents into the party.38 As a result of this mistrust, the Khmer Rouge forces launched attacks into Vietnamese territory and killed hundreds of civilians. Vietnam responded with counter attacks. In December 1978, Vietnamese troops invaded Cambodia and took control of Phnom Penh in January 1979.39 The first international reaction to the Cambodian conflict was in 1978, when the UN considered Cambodia’s human rights situation during the period of the Khmer Rouge regime for the first time. After examining the human rights situation in Cambodia, the SubCommission on Prevention of Discrimination and Protection of Minorities adopted Resolution 4 B (XXXII) of 5 September 1978.40 In the resolution, the Sub-Commission considered an analysis of the SubCommission’s Chairman and made its own observations on the human rights situation in Cambodia. As a result of the analysis, the SubCommission invited the Government of Democratic Kampuchea to collaborate with the United Nations and to present the information it possesses on of human rights violations which have taken place in Democratic Kampuchea in the recent past.41 The Sub-Commission also urged the Government to take urgent measures to restore full respect for human rights, as well as to prevent such violations in the future.42 In the resolution, the existence of genocide in Cambodia was not addressed by the Sub-Commission. It must be said that genocide committed by the Khmer Rouge did not attract particular attention and the in- 37 38 39 40 41 42 Estimations of the exact number of dead vary – at any rate, one million people killed in a population of seven million is one of the highest rates of mass killing in the world’s history. Hazdra, see note 1, 41 et seq. Kiljunen, see note 6, 22 et seq. Doc. E/CN. 4/1350 – E/CN. 4/Sub. 2/435, 47. Ibid., para. 3. Ibid., para. 2. 136 Max Planck UNYB 9 (2005) ternational reaction was very feeble.43 With Vietnam’s invasion of Cambodia in 1978 and its control since 197944 the Sub-Commission merely limited itself to observing the human rights situation. In Resolution 24 (XXXIII) of 12 September 198045, the Commission recommended keeping the human rights situation in Cambodia under continuous review. It furthermore recommended inviting the SecretaryGeneral to designate a Special Representative to assist in restoring full respect for human rights and fundamental freedoms in Cambodia.46 5. Vietnam’s Invasion of Cambodia: The “People’s Republic of Kampuchea” After invading Cambodia in December 1978 and taking control of Phnom Penh in January 1979, Vietnam overthrew the Khmer Rouge regime and installed a communist regime under the rule of Hun Sen and Heng Samrin, known as the “People’s Republic of Kampuchea” (PRK). In 1989, the regime changed its name into “State of Cambodia”. The newly established government in Cambodia, styled itself the “Khmer People’s Revolutionary Party”. For the first time since the end of the French protectorate in the 1950s, Cambodia was controlled by a foreign power. The state’s situation was similar to the final years of the French protectorate insofar as Vietnam took responsibility for Cambodia’s defence, internal security and foreign affairs, leaving less crucial areas – from their point of view – in Cambodian hands. The new regime’s leading officials were Khmer Rouge military officers – (there were approximately 140,000 regulars and militia)47 – who had defected to Vietnam in 1978 and Cambodians who had lived in Vietnam since the 1950s.48 Out of the devastation inherited from the Khmer Rouge, the Vietnamese faction developed a dic- 43 44 45 46 47 48 H. Hannum, “International Law and Cambodian Genocide: The Sounds of Silence”, HRQ 11 (1989), 82 et seq. Compare under II. 5. Doc. E/CN. 4/1413 – E/CN. 4/Sub. 2/459, 80. Ibid., para. 3. M.W. Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate, 1995, 17. Chandler, see note 7, 228. Keller, Case Study – Cambodia 137 tatorial but, nevertheless, effective authority over more than 80 per cent of the territory. What it lacked was legitimacy, international recognition outside the Soviet bloc and internal support.49 In 1981, the Khmer People’s Revolutionary Party promulgated a constitution according to the model of socialist states, placing the real power in the party while affirming limited rights and declaring progressive state policies in the interests of workers and peasants.50 No elections were held until 1981, and even those were not contested by opposing parties.51 Vietnam’s invasion of Cambodia and the PRK’s rule constituted a challenge on both the national and international political level. On the national level, the Khmer People’s Revolutionary Party’s rule gave rise to a guerrilla movement of three major resistance groups – the FUNCINPEC, the KPLNF and the PDK – which all held dissenting perceptions concerning the purposes and modalities of Cambodia’s future. The FUNCINPEC faction (Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif), was a non-communist, royalist opposition party, founded and led by Prince Sihanouk, drawing upon the forces that supported the government during the period of its reign (1954-1970).52 During the peace process, the armed forces of FUNCINPEC consisted of roughly 10,000 combatants and controlled a small area in Cambodia’s North West.53 Opposition by the conservative and rightist movement was formed by the “Khmer People’s National Liberation Front”, KPLNF. This faction emerged from the republican opposition to Sihanouk comprising the warlords and remnants of the Lon Nol regime (1970-1975).54 The KPLNF’s military was decreasing and was composed of about 5,000 warriors.55 The PDK, or the Khmer Rouge, was under the nominal presidency of Khieu Samphan, 49 50 51 52 53 54 55 Doyle, see note 47, 18. Marks, see note 16, 45 et seq. Chandler, see note 7, 228. Doyle, see note 47, 17. Hazdra, see note 1, 56. Institute of Policy Studies (IPS) of Singapore and the United Nations Institute for Training and Research (UNITAR) (eds), The United Nations Transitional Authority in Cambodia (UNTAC): Debriefing and Lessons, 1995, 7. Doyle, see note 47, 17. 138 Max Planck UNYB 9 (2005) but Pol Pot was still considerably involved in the background.56 The Khmer Rouge military forces of almost 30,000 disciplined troops controlled the Cambodian territory on the Thai boarder.57 Despite those varying interests and encouraged by the Association of South-East Asian Nations (ASEAN)58, the People’s Republic of China and the United States, the three Cambodian rebel factions formed the Coalition Government of Democratic Kampuchea (CGDK) in 1982. The coalition government in exile was headed by Sihanouk, Khieu Samphan of the Khmer Rouge who acted as vice-president and Sonn San of the KPLNF as prime minister.59 Vietnam’s offensive against Cambodia formed a political obstacle to the peace processes on the international level, too. Apart from Vietnam and the Cambodian factions, the United States, the ASEAN member states, the People’s Republic of China and the Soviet Union were in one way or another involved in the conflict. As a matter of course, each of those states had different interests; the only common objective of this coalition was Vietnam’s withdrawal from Cambodia. Vietnam and the proVietnamese faction considered the Cambodian conflict to be an internal one and as such only resolvable by its regime. The anti-Vietnamese resistance, on the other hand, focussed more on the fact of Vietnam’s illegitimate invasion and occupation of Cambodia.60 The Soviet Union’s and the People’s Republic of China’s ostensible interest was to affirm solidarity and to give support to the IndoChinese peoples, communistically oriented like themselves. 61 Even though the Soviet Union was advocating a peace agreement for Cambodia, they supported Vietnam’s regime in many ways. China’s decision to cease its long-lasting support for the Khmer Rouge and to change allegiance, i.e. to support Vietnam, was based on economic reasons. The PDK began to appear as an unwelcome burden in China’s 56 57 58 59 60 61 IPS/ UNITAR, see note 54, 7. Doyle, see note 47, 17. I.e. Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore and Thailand. Doyle, see note 47, 19. Cf. L. Salmen, Kambodscha und die UNO: Der Krieg und seine Eingrenzung von 1978 bis 1993, 1999, 103 et seq. Hessische Stiftung für Friedens- und Konfliktforschung (HSFK) (ed.), Friedensanalysen, 1978, 21 et seq. Keller, Case Study – Cambodia 139 quest for access to the world market.62 Conversely, the ASEAN member states assumed the leading role in the opposition to Vietnam and supported Sihanouk’s FUNCINPEC. The U.S.’ chief motive for their resistance to the Hun Sen regime was of political and ideological nature. The U.S., pursuing the ideology of the Cold War era, wanted to prevent any communist movement.63 Apart from that, the promotion of political stability of the ASEAN states was of interest due to their growing economy.64 Another problematic issue must be mentioned. As outlined above65, Cambodia became a member of the United Nations in 1955. After the Vietnamese invasion, the question of the legitimate representative of Cambodia – either representation by the exiled Coalition Government of Democratic Kampuchea or by the Vietnamese People’s Republic of Kampuchea – in the UN came to the fore. The General Assembly referred the question to the Credentials Committee.66 Hereinafter, the General Assembly passed four resolutions.67 In all resolutions, the General Assembly approved the examinations and reports of the Credentials Committee stating that the Coalition Government of Democratic Kampuchea is the legitimate representative of Cambodia. A number of states doubted the legitimacy of the coalition government due to the involvement of the Khmer Rouge. They brought forward the argument that a coalition government comprising a faction which committed genocide and vast human rights abuses could not represent Cambodia in the United Nations.68 The majority of states, on the other hand, referred to the fact, that the Coalition Government of Democratic Kampuchea exercised effective control over the territory and that the Vietnamese regime derived from a breach of the principle of the prohibition of the use of force as provided for in Article 2 para. 4 of the UN 62 63 64 65 66 67 68 Doyle, see note 47, 23 et seq. HSFK, see note 61, 15 et seq. Salmen, see note 60, 44. Cf. under II. 2. Cf. S. Ratliff, “UN Representation Disputes”, California Law Review 87 (1999), 1207 et seq. A/RES/34/2 of 21 September 1979; A/RES/35/4 of 13 October 1980; A/RES/36/2A of 18 September 1981; A/RES/37/5A of 26 October 1982; cf. also Rapp/Philipp, see note 2, 205. Ratliff, see note 66, 1207 et seq. 140 Max Planck UNYB 9 (2005) Charter.69 The Vietnamese faction abstained from any vote on this question and refused to recognise the resolutions passed by the General Assembly.70 In a situation of vast political entanglement between all the involved parties – some of them permanent members of the UN Security Council – the international community, and especially the UN, were facing multiple difficulties with regard to concurring on the beginning of a Cambodian peace process. 6. The Conflict before the Security Council and the General Assembly In January 1979, due to Vietnam’s invasion of Cambodia, the UN Security Council reviewed the Cambodian situation. The Council attempted to draft two resolutions calling on all parties to cease combat and to withdraw all foreign troops from Cambodia.71 For the first resolution, no majority among the members could be found and the second resolution was vetoed by the Soviet Union. A two-week long campaign by China against Vietnam in February 1979 resulted in discussing again Cambodia’s situation. A draft resolution72 called again on all parties to the conflict, i.e. Vietnam and the People’s Republic of China, to withdraw their forces. Again, the Soviet Union blocked the resolution. While the Security Council unsuccessfully tried to find a peaceful solution for Cambodia, the ASEAN member states demanded in August 1979 that “the Situation in Kampuchea” be included on the agenda of the General Assembly’s 34th session. As a result of the ensuing debate, the General Assembly adopted Resolution 34/2273 calling for the immediate withdrawal of all foreign forces from Cambodia. The fact that the General Assembly adopted the resolution and thus acted at the same time and on the same subject as the Security Council, raises a legal question: Article 12 para.1 of the UN Charter establishes a temporary ban on recommendations by the General Assembly with regard to dis69 70 71 72 73 Ratliff, see note 66, 1207 et seq. Rapp/ Philipp, see note 2. Doc. S/13022 of 11 January 1979 and Doc. S/13027 of 15 January 1979. Doc. S/13162 of 13 March 1979. A/RES/34/22 of 14 November 1979. Keller, Case Study – Cambodia 141 putes or situations being dealt with by the Security Council unless the Security Council requests the General Assembly to issue a recommendation.74 The primary ratio of this provision is to guarantee the Security Council’s primacy in the area of the maintenance of international peace and security.75 In addition, Article 12 para. 1 aims at preventing that the efficient maintenance of international peace and security is jeopardised by the two organs drawing differing conclusions from the same situation, due to their different structure and composition.76 The Security Council’s primacy in matters of the maintenance of international peace and security as described above can be limited by Arts 11 para. 2 and 35 UN Charter. According to Article 10 of the Charter, the General Assembly is vested with a general power to discuss any questions or any matters within the scope of the Charter.77 More specifically, Article 11 para. 2 states that the General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by a member of the UN, by the Security Council, or by a state which is not a member of the UN. The General Assembly may also make under certain provisions recommendations to the state concerned, to the Security Council or to both. Article 12 para. 1 does not restrict the General Assembly’s power to discuss questions relating to the maintenance of international peace and security; the reservation refers only to recommendations. In Resolution 34/22, the General Assembly stresses “that the armed conflict in Kampuchea has escalated and is seriously threatening the peace and stability of South-East Asia”. Moreover, it expresses the apprehension that “the present conflict may spill over the neighbouring countries and increase the danger of further involvement by outside Powers”. Thus, the General Assembly refers explicitly to a question relating to the maintenance of international peace and security as required by Article 11 para. 2 of the Charter. The resolution must materially be qualified as a recom74 75 76 77 K. Hailbronner/ E. Klein, “Article 12”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 2002, Vol. I, MN 2. Cf. E. Jiménez de Aréchaga, “United Nations Security Council”, in: R. Bernhard (ed.), EPIL, 2000, Vol. IV, 1168; J. Delbrück, “Article 24”, in: Simma, see note 74, MN 3 et seq. Hailbronner/ Klein, see note 74, MN 1. Cf. Sir F. Vallat, “United Nations General Assembly”, in: Bernhard, see note 75, 1122; K. Hailbronner/ E. Klein, “Article 10”, in: Simma, see note 74, MN 1 et seq. 142 Max Planck UNYB 9 (2005) mendation78, and as the Security Council was acting as well, it is assumed that the General Assembly did not act within the scope of Article 11 para. 2. Thus, the legality of Resolution 34/22 is very doubtful. From a political perspective, given the situation in the Cold War era characterised by vast dissensions among the aligned states, the fact that the General Assembly drafted Resolution 34/22 helped to approach the Cambodian situation. Otherwise, the Soviet Union could keep blocking the process by using its veto power.79 As one of the means for implementing Resolution 34/22, the General Assembly requested the Secretary-General in para. 12 to explore the possibility of holding an international conference on Cambodia. By Resolution 35/680, the General Assembly decided to convene early in 1981 “an international conference on Kampuchea which should involve the participation of all conflicting parties in Kampuchea and others concerned”, with the aim of finding a comprehensive political settlement of the Cambodian conflict. In July 1981, the “International Conference on Kampuchea” was held in New York. Vietnam, the Soviet Union and other states from the former eastern bloc declined to take part, basing their protest on the ground that the conference’s mandate illegally interfered with Cambodia’s internal affairs. Due to vast dissensions between the different Cambodian factions and among all parties, the conference participants could not entirely agree on what solution should be proposed and the conference ended with a communiqué expressing the need for a political and peaceful solution.81 The conference also created an ad hoc committee to undertake peace efforts on behalf of the conference.82 The committee met subsequent to the conference throughout the 1980s but made little progress toward a peace settlement. The General Assembly kept the situation in Cambodia on its 78 79 80 81 82 Compare only the formulation in paras 4-7, in which the General Assembly inter alia “urges all parties to cooperate with the humanitarian relief efforts” and “calls upon all parties to the conflict to cease all hostilities”. For a detailed account of this subject matter compare the discussion on the so called “Uniting for Peace Resolution”, A/RES/377 (V) of 3 November 1950, adopted on the occasion of the Korean conflict, see B. Nolte, “Uniting for Peace”, in: Wolfum, see note 2, Vol. II, 1341 et seq. A/RES/35/6 of 22 October 1980. Report of the International Conference on Kampuchea, Doc. A/CONF. 109/5, annex 1. Ibid., annex II. Keller, Case Study – Cambodia 143 agenda and, passing annual resolutions on this issue83, identified the withdrawal of the foreign forces as the first component of any durable peace in Cambodia. Furthermore, the Secretary-General dispatched his Special Representative to the region in order to guarantee meetings and deliberations with regional actors.84 In 1987 and again in 1988 Prince Sihanouk and Hun Sen met for informal discussions in France, fostered by India and Indonesia.85 With Sihanouk’s advancing age, Hun Sen’s desire to attain international recognition for his regime and owing to military exhaustion throughout the whole country, the Cambodian factions began to demonstrate willingness to discuss peace.86 The process of dialogue and negotiation began to gather momentum when a good offices mission undertaken by the Secretary-General’s Special Representative for Humanitarian Affairs in South-East Asia succeeded in fostering a dialogue between the various Cambodian factions. Encouraged by Indonesia, the four factions convened two meetings in Indonesia (called the “Jakarta Informal Meetings”, JIMs), attended by the four factions and Vietnam, Laos and the ASEAN member states.87 At the first JIM in July 1988, the positions of the parties differed mainly on two questions, namely on the embodiment of Cambodia’s rule during the transitional period and on whether the Khmer Rouge should play a role in Cambodia. The conference was concluded with a communiqué emphasising the need for a comprehensive settlement of the Cambodian conflict.88 The fundamental dissensions between the Cambodian factions also overshadowed the second JIM, which took place in February 1989; thus, the conference ended without achieving a comprehensive settlement.89 83 84 85 86 87 88 89 See, e.g. A/RES/43/19 of 3 November 1988. S.R. Ratner, “The Cambodia Settlement Agreements”, AJIL 87 (1993), 1 et seq. Cf. Boutros-Ghali, see note 4, 6. Doyle, see note 47, 21. T. Findlay, Cambodia: The Legacy and Lessons of UNTAC, 1995, 4. Letter from the permanent representative of Indonesia to the United Nations addressed to the Secretary-General, Doc. A/43/493-S/20071 of 28 July 1988, annex 1. Letter from the permanent representative of Indonesia to the United Nations addressed to the Secretary-General, Doc. A/44/138-S/20477 of 22 February 1989. Max Planck UNYB 9 (2005) 144 III. Peace Negotiations 1. The Paris Peace Conference in 1989 At the initiative of the French and Indonesian government, perceiving an opportunity to break the stalemate that had emerged at both the national and international level, the “Conference on Peace in Cambodia” – more often referred to as the “Paris Peace Conference” or the “Paris Conference” – was convened.90 The Paris Conference, which lasted from July to August 1989, was the culmination of years of considerable effort in the Cambodian peace process, marked alternately by hope, frustration and, as described above, impasse. An optimistic mood prevailed among the conference’s participants, inter alia due to the fact, that the preceding phase of diplomatic efforts generated a considerable willingness among the opposing parties to reach a settlement.91 Another reason for an optimistic position with regard to the settlement of peace in Cambodia was Vietnam’s decision to withdraw its troops.92 Apart from that, the Cambodian conflict became onerous in many ways: the parties directly involved had realised that their objectives could not be achieved by military force; furthermore, they had come to the conclusion that the costs of continuing the conflict were higher than the costs of a political settlement. Among the conference’s participants were all belligerent Cambodian factions, nineteen states – among them the permanent members of the UN Security Council, the members of ASEAN and representatives of the non-aligned states.93 Progress was made in two ways. The conference’s participants reached agreement on the withdrawal of foreign forces, neutralization and the return of refugees.94 Furthermore, the presence of the five permanent members of the UN Security Council marked a shared interest in achieving a negotiated solution for peace, following the post coldwar rapprochement between the United States and the Soviet Union and 90 91 92 93 94 Boutros-Ghali, see note 4, 7. Cf. A. Acharya/ P. Lizée/ S. Peou (eds), Cambodia: The 1989 Paris Peace Conference, 1991, Introduction 23. Findlay, see note 87, 5. Cf. A. Acharya/ P. Lizée/ S. Peou, see note 91, 45. Doyle, see note 47, 22. Keller, Case Study – Cambodia 145 an improvement in relations between the People’s Republic of China, the ASEAN member states and Vietnam.95 Despite this progress, the Paris Conference was to fall far short of providing a decisive breakthrough towards the resolution of the Cambodian conflict.96 The crucial obstacles proved to be the formula for power sharing among the four Cambodian factions during the interim period and the Khmer Rouge’s participation in the peace process. The conference thus ended with mapping out a broad strategy for peace but was suspended without achieving a comprehensive settlement. 2. The Way to the Paris Agreements With the adjournment of the Paris Conference, intensive efforts were made by the five permanent members of the Security Council (hereinafter “the Five”), as well as Australia, Indonesia and Japan to restart the negotiations. The common proposal was to design some form of UN trusteeship over Cambodia instead of establishing a quadripartite power-sharing arrangement between the local factions.97 After the withdrawal of Vietnam’s troops in 1989, the Five held a series of highlevel meetings in New York and Paris addressing the Cambodian situation.98 At their sixth meeting in August 1990, the Five announced that they had reached a consent on a Framework for a Comprehensive Political Settlement of the Cambodian Conflict (hereinafter “Framework Agreement”).99 The Framework Agreement emphasised at the outset the need for the comprehensiveness of the future settlement and covers five sections: the transitional arrangements regarding the administration of Cambodia 95 96 97 98 99 Cf. Boutros-Ghali, see note 4, 7. Acharya/ Lizée/ Peou, see note 91, 23. Findlay, see note 87, 6. Cf. Rapp/ Philipp, see note 2, 206. Cf. “Statement of the Five Permanent Members of the Security Council of the United Nations on Cambodia”, in: Letter dated 30 August 1990 from the permanent representatives of China, France, the USSR, the United Kingdom and the United States to the United Nations addressed to the Secretary-General transmitting statement and framework document adopted by their representatives at a meeting in New York, 27-28 August 1990; Doc. A/45/472-S/21689 of 31 August 1990. 146 Max Planck UNYB 9 (2005) during the pre-election period (section 1); the military arrangements during the transitional period (section 2); the elections under United Nations auspices (section 3); human rights protection (section 4); and international guarantees (section 5). The transitional arrangements regarding the administration of Cambodia during the pre-election period aim at restoring and maintaining peace in Cambodia, the promotion of national reconciliation and at the realisation of national self-determination through free and fair general elections. Therefore, the framework provided the establishment of a Supreme National Council (SNC) as the “unique legitimate body and source of authority in which, throughout the transitional period, national sovereignty and unity would be enshrined”.100 On condition that the members of the SNC are committed to the holding of free and fair elections, the SNC’s composition should be decided by the Cambodian factions through consultation.101 Apart from its embodiment of Cambodia’s internal sovereignty, the SNC should represent Cambodia externally and occupy the seat of Cambodia at the United Nations.102 With respect to the military arrangements during the transitional period, the Framework Agreement provides for the establishment of a United Nations Transitional Authority in Cambodia (UNTAC) with military as well as civilian components.103 The function of the military component was to carry out the peace-keeping aspects of the comprehensive political settlement.104 The Five emphasised a ceasefire as an indispensable element of a comprehensive agreement and called on all parties to the conflict to exercise maximum self restraint.105 Once a ceasefire was in place, the UN Transitional Authority would verify the withdrawal of all foreign forces from Cambodia, monitor the cessation of outside military assistance and undertake mine clearance and awareness training programmes.106 National self-determination was considered to be the basic principle behind the Five’s approach. This objective was to be achieved through 100 101 102 103 104 105 106 Framework Agreement, section 1, paras 1 and 2. Framework Agreement, section 1, paras 3 and 4. Framework Agreement, section 1, para. 7. Framework Agreement, section 2, para. 13. Framework Agreement, section 3, para. 14. Framework Agreement, section 2, para. 17. Framework Agreement, section 2, para. 15. Keller, Case Study – Cambodia 147 free and fair elections under United Nations auspices.107 The provisions for the elections should include the establishment of a system of laws, procedures and administrative measures.108 After an electoral period which should be as short as possible, the elected constituent assembly should draft a constitution and transform itself into a legislative assembly which would create the new Cambodian government.109 With the above-mentioned procedure – elections for a constituent assembly, the elaboration of a constitution by the constituent assembly and the transformation of the assembly into the legislative body which would create the new Cambodian government – the Five provided for a process which may be considered as characteristic for the restoration of national self-determination (compare e.g. the proceedings in Afghanistan110 and Iraq111). As Cambodia’s history is marked by grave human rights violations, the settlement should commit Cambodia to comply with the obligations of the relevant international human rights instruments.112 All fundamental rights and freedoms therefore formed part of the constitutional principles within the settlement. The UN should develop and implement a programme of human rights education and provide for investigation of human rights complaints.113 A principle aim of the international guarantees in the Framework Agreement was to protect the independent and neutral status of Cambodia and to prevent foreign aggression.114 Therefore, the states participating in the Paris Conference would conclude a multilateral agreement to recognise and respect the independence, sovereignty, territorial integrity and inviolability, neutrality and national unity of Cambodia. In the event of violations or threat of violation with respect to these guarantees, the parties to the future agreement should undertake appropriate measures. These measures may include reference to the UN Security Council or recourse to the means for the peaceful settlement of disputes as provided in Article 33 of the UN Charter.115 107 108 109 110 111 112 113 114 115 Framework Agreement, section 1, para. 1 and section 3, para. 20. Framework Agreement, section 3, paras 21 and 22. Framework Agreement, section 3, para. 23. For details compare E. Afsah/ A. Guhr, in this Volume. For details compare R. Wolfrum, case study Iraq, in this Volume. Framework Agreement, section 4, para. 24. Framework Agreement, section 4, paras 26 and 27. Framework Agreement, section 5, para. 31. Framework Agreement, section 5, paras 33-36. 148 Max Planck UNYB 9 (2005) On the occasion of a further informal meeting in Jakarta, the four Cambodian factions accepted the Framework Agreement.116 They even agreed to form together the SNC under the chair of Prince Sihanouk.117 In Resolution 668, the Security Council endorsed the framework.118 The Five then called upon France and Indonesia, having served as CoChairmen at the Paris Conference, to negotiate the framework into a definitive peace-agreement. The final round of negotiations began in the summer of 1991. In four more meetings, the Five, the Cambodian factions attending as the SNC and Indonesia made revisions to the 1990 framework in order to respond to the concerns of the state of Cambodia and other members of the Paris Conference.119 After several negotiations and the presentation of drafts to the four Cambodian factions, to Thailand and Vietnam, after the conclusion of the first cease-fire in 12 years and after more than ten years of diplomatic efforts, the “Agreements on a Comprehensive Political Settlement of the Cambodia Conflict (hereinafter referred to as “Paris Agreements”)120 were signed in October 1991. Among the signatory states were Cambodia represented by the SNC, the Five, the ASEAN member states, Cambodia’s neighbours (i.e. Vietnam and the Lao People’s Democratic Republic) and Australia, Canada, India, Japan and furthermore the Socialist Federal Republic of Yugoslavia as representative of the non-aligned states. The UN signed the Paris Agreements as a witness. On 31 October 1991, the Security Council expressed its full support for the Paris Agreements in Resolution 718121 and called on all Cambodian factions to comply with the cease-fire and to cooperate fully with the UN. With Resolution 46/18122, the General 116 117 118 119 120 121 122 Doyle, see note 47, 24. For details to the SNC see under III. 3. c. aa. See S/RES/668 (1990) of 20 September 1990. Cf. Communiqué issued on 30 August 1991 by the Co-Chairman of the Paris Conference on Cambodia and the Five Permanent Members of the Security Council, in: Letter dated 3 September 1991 from the representatives of China, France, Indonesia, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the SecretaryGeneral, Doc. A/46/418-S/23011 of 3 September 1991. Doc. A/46/608-S/23177 of 30 November 1991. S/RES/718 (1991) of 31 October 1991. A/RES/46/18 of 20 November 1991. Keller, Case Study – Cambodia 149 Assembly followed the Security Council calling on all parties to respect the rights and freedoms of the Cambodian people. 3. The Paris Agreements – Contents and Objectives a. Structure of the Paris Agreements The Paris Conference reached an agreement on four documents: the Final Act of the Paris Conference on Cambodia (hereinafter “Final Act”); the Agreement of a Comprehensive Political Settlement of the Cambodia Conflict (hereinafter “Comprehensive Settlement Agreement”); the Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia (hereinafter “Guarantees Agreement”); and the Declaration on the Rehabilitation and Reconstruction of Cambodia (hereinafter “Declaration”). The parties to the Final Act, the Comprehensive Settlement Agreement, the Guarantees Agreement and the Declaration are the nineteen states that participated in the Paris Conference.123 b. The Final Act and the Declaration The Final Act gives a review of the Paris Conference in general terms and outlines the subject matter negotiated on the occasion of the two sessions of the conference, i.e. the Comprehensive Settlement Agreement, the Guarantees Agreement and the Declaration.124 Moreover, the parties to the Paris Conference pledge to fully cooperate in the fulfilment of the Paris Agreements, to foster the implementation and to promote and encourage respect for human rights in Cambodia.125 These obligations are included in both the Comprehensive Settlement Agreement and the Guarantees Agreement. The Declaration outlines the measures to be taken with respect to the rehabilitation and reconstruction of Cambodia. According to para. 6 of the Declaration, the UN system will play an important role. As to the reconstruction, “the main responsibility for deciding Cambodia’s 123 124 125 Compare under III. 1. Final Act, para. 10. Final Act, para. 12. Max Planck UNYB 9 (2005) 150 reconstruction needs and plans should rest with the Cambodian people and the government formed after free and fair elections”.126 Paras 3 to 5 and 11 to 13 outline several principles that should be considered during the reconstruction phase, especially the need to coordinate the international and regional assistance to Cambodia.127 For the process of rehabilitation, the Secretary-General is requested to help coordinate the programme.128 c. The Comprehensive Settlement Agreement The Comprehensive Settlement Agreement is the principal document of the Paris Agreements and contains all essential elements already provided for in the Framework Agreement. It also includes the provisions of the Guarantees Agreement and the Declaration. The agreement consists of a main text, subdivided into nine parts and again into sections, and five annexes on the mandate of UNTAC (annex 1), on the military arrangements during the transitional period (annex 2), on the elections (annex 3), the repatriation of refugees and displaced persons (annex 4) and on the principles for a new Cambodian constitution (annex 5). The subsequent analysis will comprise remarks on the provisions with respect to the SNC, to the elections, the issue of human rights and to the constitutional principles. UNTAC’s mandate will be outlined under IV. 2. aa. The Supreme National Council As pre-designed in the Framework Agreement, the SNC forms the exclusive sovereign body representing Cambodia during the transitional period.129 Under the Comprehensive Settlement Agreement, the four Cambodian factions forming the SNC were to support the holding of free and fair elections organised and conducted by the UN.130 As the crucial point with regard to the SNC’s powers, article 6 states that “the SNC (…) delegates to the United Nations all powers necessary to ensure the implementation of this Agreement, as described in annex 1 [i.e. 126 127 128 129 130 Declaration, para. 2. Declaration, para. 3. Declaration, para. 9. Comprehensive Settlement Agreement, part 1, section 3, arts 3 and 5. Comprehensive Settlement Agreement, part 1, section 3, article 4. Keller, Case Study – Cambodia 151 in the provisions describing UNTAC’s mandate]”.131 This delegation of power has to be effected “to ensure a neutral political environment conducive to free and fair general elections (…)”. In addition, “administrative agencies, bodies and offices which could directly influence the outcome of the elections will be placed under direct United Nations supervision and control. In that context, special attention will be given to foreign affairs, national defence, finance, public security and information.132 With respect to the precise relationship between the SNC and UNTAC, part 1, section 3, article 7 refers to annex 1, where UNTAC’s mandate is outlined. bb. Elections The Comprehensive Settlement Agreement provides for the establishment of a constituent assembly whose members are to be elected by the Cambodian people in free and fair general elections. This reflects the underlying principle that the Cambodian people have the right to determine their own political future. The elections were to be held under UN auspices “in a neutral political environment with full respect for the national sovereignty of Cambodia”.133 UNTAC was to determinate the exact timetable for the electoral process, which should in toto not exceed nine months.134 UNTAC’s task was to create a system of voter registration135 and to facilitate the presence of foreign election observers.136 At the end of the electoral process, UNTAC would determine if the elections were free and fair.137 The constituent assembly should consist of 120 members and should draft and adopt a new Cambodian constitution within a period of three months from the date of the elections. After the elections and the adoption of the constitution, the assembly would transform itself into a legislative assembly which would form the new Cambodian government.138 According to the agreement, all Cambodians, “including those who at the time of signature of this 131 132 133 134 135 136 137 138 Comprehensive Settlement Agreement, part 1, section 3, article 6, para. 1. Comprehensive Settlement Agreement, part 1, section 3, article 6, para. 2. Comprehensive Settlement Agreement, part 2, article 12. Comprehensive Settlement Agreement, annex 1, section D, para. 5. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. d. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. i. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. l. Comprehensive Settlement Agreement, annex 3, para. 1. Max Planck UNYB 9 (2005) 152 Agreement are Cambodian refugees and displaced persons, will have the same rights, freedoms and opportunities to take part in the electoral process”.139 During the electoral process, the freedom of speech, assembly and movement will be fully respected.140 Annex 3, para. 5 sets forth that political parties may be formed by any group of five thousand registered voters. The party platforms must be consistent with the principles and objectives of the Comprehensive Settlement Agreement and UNTAC is meant to confirm that the parties and candidates meet the established criteria. According to annex 3, para. 7, adherence to a code of conduct established by UNTAC in consultation with the SNC constitutes a condition for such participation. cc. Human Rights Although resolutions of other conflicts may require only reference to human rights, the terror of the Democratic Kampuchean regime necessitated the inclusion of detailed sections on human rights in the Paris Agreements.141 Due to Cambodia’s history, special measures to assure the protection of human rights are required. Therefore, the peace plan states that “the constitution will contain a declaration of fundamental rights, including the rights to life, personal liberty, security, and freedom of movement, freedom of religion, assembly and association (...)”. Furthermore, the fundamental rights provisions have to comprise “political parties and trade unions, due process and equality before the law, protection from arbitrary deprivation of property or deprivation of private property without just compensation, and freedom from racial, ethnic, religious or sexual discrimination. It will prohibit the retroactive application of criminal law. The declaration will be consistent with the provisions of the Universal Declaration of Human Rights and other relevant international instruments. Aggrieved individuals will be entitled to have the courts adjudicate and enforce these rights”.142 Part 3, article 15, para. 1 of the Comprehensive Settlement Agreement states that “All persons in Cambodia and all Cambodian refugees and displaced persons shall enjoy the rights and freedoms embodied in the Universal Declaration of Human Rights and other relevant interna139 140 141 142 Comprehensive Settlement Agreement, annex 3, para. 3. Comprehensive Settlement Agreement, annex 3, para. 9. Ratner, see note 84, 1 et seq. Comprehensive Settlement Agreement, annex 5, para. 2. Keller, Case Study – Cambodia 153 tional human rights instruments”. To this end, Cambodia is called to adhere to relevant international human rights instruments and to take measures to ensure that the policies and practices of the past will never return.143 In order to guarantee an environment in which respect for human rights is ensured, the UN Transitional Authority is required to foster human rights during the transitional period, i.e. the period between the entry into force of the Paris Agreements and the adoption of the constitution by the constituent assembly.144 dd. Constitutional Principles Annex 5 of the Comprehensive Settlement Agreement outlines principles for the new Cambodian constitution, representing the supreme law of the Cambodian state. It can only be amended by a process involving legislative approval, popular referendum or both. The constitution is adopted by a two-thirds majority of the members of the constituent assembly.145 Cambodia’s status will be declared as sovereign, independent and neutral.146 The constitution will state that “Cambodia will follow a system of liberal democracy, on the basis of pluralism. It will provide for periodic and genuine elections. It will provide for the right to vote and to be elected by universal and equal suffrage. It will provide for voting by secret ballot, with a requirement that electoral procedures provide a full and fair opportunity to organise and participate in the electoral process”.147 In order to enforce the constitutional rights, an independent judiciary will be established.148 d. The Guarantees Agreement The Guarantees Agreement reproduces the provisions included in the Comprehensive Settlement Agreement with respect to human rights. Apart from this, it comprises obligations regarding the sovereignty, in- 143 144 145 146 147 148 Comprehensive Settlement Agreement, part 3, article 15, para. 2, lit. a. Comprehensive Settlement Agreement, part 3, article 16. Comprehensive Settlement Agreement, annex 5, paras 1 and 6. Comprehensive Settlement Agreement, annex 5, para. 3. Comprehensive Settlement Agreement, annex 5, para. 4. Comprehensive Settlement Agreement, annex 5, para. 5. 154 Max Planck UNYB 9 (2005) dependence, territorial integrity and inviolability, neutrality and national unity of Cambodia to be fulfilled by both Cambodia and the other parties to the Paris Agreements. Cambodia is called upon to refrain from any action “that might impair the sovereignty, independence and territorial integrity and inviolability of other States”;149 and “(…) from entering into any military alliances or other military agreements with other States that would be inconsistent with its neutrality (…) without prejudice to Cambodia’s (…) inherent right of self-defence and of the maintain law and order”.150 In addition, Cambodia has to terminate treaties and agreements that are incompatible with its sovereignty, independence, territorial integrity and inviolability, neutrality, and national unity.151 According to the Guarantees Agreement, all parties to the agreement have to, inter alia, refrain from direct or indirect interference in the internal affairs of other states respectively of Cambodia;152 they are urged to refrain from the threat or use of force against the territorial integrity or political independence of any state respectively of Cambodia;153 and the parties are called to settle disputes with other states respectively with Cambodia by peaceful means.154 IV. The Territorial Administration of Cambodia 1. The UN Advance Mission in Cambodia During the final negotiations leading to the Paris Agreements, the leader of the SNC, Prince Norodom Sihanouk, requested the UN to send observers to Cambodia in order to sustain the impetus of the peace process and monitor the fragile ceasefire. The Secretary-General therefore recommended that the Security Council establish the United Nations Advance Mission in Cambodia (hereinafter UNAMIC).155 Ac149 150 151 152 153 154 155 Guarantees Agreement, article 1, para. 2, lit. a. Guarantees Agreement, article 1, para. 2, lit. b. Guarantees Agreement, article 1, para. 2, lit. d. Guarantees Agreement, article 1, para. 2, lit. c and article 2, para. 2, lit. b. Guarantees Agreement, article 1, para. 2, lit. e and article 2, para. 2, lit. c. Guarantees Agreement, article 1, para. 2, lit. f and article 2, para. 2, lit. d. Cf. Doc. S/22945 of 14 August 1991. Keller, Case Study – Cambodia 155 cording to the Secretary-General’s recommendation, UNAMIC was intended to operate under UN command. The Security Council thus passed Resolution 717156 and decided that, in order to ensure the required conditions for UNTAC’s deployment, UNAMIC should be sent to Cambodia immediately after the signing of the Paris Agreements.157 The principal goal of UMAMIC was to help maintain the cease-fire.158 In addition, UNAMIC was to serve as liaison between the SNC and the UN during the period preceding UNTAC’s establishment. Finally, UNAMIC was enlarged by Security Council’s Resolution 728159 in order to start a mine-awareness programme. With the formation of UNTAC in 1992, the UNAMIC mission came to an end. 2. The UN Transitional Authority in Cambodia By 1992, the Secretary-General had submitted an operation plan for UNTAC to the Security Council.160 In the operation plan, the following seven distinct components of UNTAC were outlined: human rights, elections, military, civil administration, police, repatriation and rehabilitation. The Security Council adopted the Secretary-General’s operation plan and created UNTAC in February 1992 by Resolution 745.161 a. Resolution 745 (1992) – Legal Basis of UNTAC In Resolution 745, the Security Council approved the report of the Secretary-General on Cambodia containing the plan for implementing UNTAC’s mandate envisaged in the Paris Agreements.162 Resolution 156 157 158 159 160 161 162 S/RES/717 (1991) of 16 October 1991. Ibid., para. 2. Cf. http://www.un.org/Depts/dpko/dpko/co_mission/unamicbackgr.html. S/RES/728 (1992) of 8 January 1992. Report of the Secretary-General on Cambodia containing his proposed implementation plan for UNTAC, including administrative and financial aspects; Doc. S/23613 of 19 February 1992. S/RES/745 (1992) of 28 February 1992. Para. 1 of Resolution 745, see note 161. 156 Max Planck UNYB 9 (2005) 745 thus refers to the Paris Agreements and the agreements at the same time authorise the Security Council to establish UNTAC.163 Resolution 745 is brief in terms of UNTAC’s mandate and formulates it in a general way. In para. 2, the resolution provides that UNTAC “shall be established under its authority (…) for a period not to exceed 18 months”; and, in para. 4, the Security Council “requests the Secretary-General to deploy the Authority as rapidly as possible” and that the deployment and implementation needs “to be done in the most efficient and cost-effective way”. Apart from these statements relating to the mandate’s personal direction, to its time period and the way the mandate should be accomplished, the resolution contains no concrete reference concerning UNTAC’s mandate as the Paris Agreements deal with these details. In contrast, the resolution refers to the Paris Agreements in five of its eleven paras: the Security Council approves the report of the Secretary General “for implementing the mandate envisaged in the agreements on a comprehensive political settlement of the Cambodian conflict”;164 it invites the Secretary-General to review the mandate’s operation continuously, “bearing in mind the fundamental objectives of the agreements;”165 furthermore, the SNC is called to upheld its responsibilities set out in the agreement166 and all parties concerned are to comply with the terms of the agreement.167 The administration of territories by the United Nations raises a widely discussed legal question: it concerns the issue of whether the UN has the competence to administer a territory, and if so, on what legal basis. At the outset of the following considerations it is emphasised that the power of the UN to administer a territory is not mentioned in the UN Charter.168 Although various types of territorial administration bear resemblance to the trusteeship system provided for by Chapter 163 164 165 166 167 168 Comprehensive Settlement Agreement, part 1, section 2, article 2. Para. 1 of Resolution 745, see note 161. Para. 4 of Resolution 745, see note 161. Para. 5 of Resolution 745, see note 161. Para. 6 of Resolution 745, see note 161. Compare E. Suy, “United Nations Peacekeeping System”, in: Bernhard, see note 75, 1144; S. Chesterman, You, the People: The United Nations, Transitional Administration and State-Building, 2004, 48. Keller, Case Study – Cambodia 157 XII UN Charter169, Article 78 of the Charter states that the trusteeship does not apply to territories that have become members of the United Nations. Moreover, Article 77 para. 1 limits the applicability of the system to three categories of territories: those now held under mandate; territories detached from enemy states as a result of World War II and territories voluntarily placed under the system by states responsible for their administration. Hence none of those categories apply to the different modern-day mandates, including UNTAC in Cambodia.170 Some of the most recent international territorial administrations – UNMIK in Kosovo171, UNTAES in Eastern Slavonia and UNTAET in East Timor172 – were established by a resolution of the Security Council acting under Chapter VII of the Charter. The Security Council emphasised in all respective resolutions that the situation in Kosovo, Eastern Slavonia and East Timor constituted a threat to peace and security.173 Resolution 745 on the establishment and implementation of UNTAC contains neither a reference to a threat to peace and security nor a declaration that the Security Council is acting under Chapter VII. It refers only to the Paris Agreements. As a matter of fact, each reference to an agreement indicates at the same time a reference to the parties’ consent: the constituent element of each treaty in each legal domain is to be found in the consent of the parties to the treaty.174 In the Paris Agreements, the parties even categorically authorised the Security Council in Part 1, section 2, article 2 of the Comprehensive Settlement Agreement to establish UNTAC with civilian and military components under the 169 170 171 172 173 174 For details of the trusteeship system see N. Matz, in this Volume; D. Rauschnig, “Chapter XII. International Trusteeship System”, in: Simma, see note 74, Vol. II, MN 1 et seq. Cf. E. De Wet, “The Direct Administration of Territories by the United Nations”, in: A. von Bogdandy/ R. Wolfrum (eds), Max Planck UNYB 8 (2004), 306 et seq. For details to UNMIK see J. Friedrich, in this Volume. For details to UNTAET see M. Benzing, in this Volume. S/RES/1244 (1999) of 10 June 1999 (UNMIK in Kosovo); S/RES/1037 (1996) of 15 January 1996 (UNTAES in Eastern Slavonia); S/RES/1272 (1999) of 25 October 1999 (UNTAET in East Timor). Answering the important material questions of the genesis of a treaty, i.e. the mode of the negotiations leading to a treaty, which parties are involved in the treaty-making procedure and the issue of whether a consent represents a real accord between the parties, would go beyond the scope of the present analysis. 158 Max Planck UNYB 9 (2005) direct responsibility of the Secretary-General. Hence, with Resolution 745, the Security Council – referring to the Paris Agreements and consequently to the authorisation in article 2 as well – based the establishment and implementation of UNTAC on the consent of the parties to the agreement.175 In the course of history, the United Nations has developed special procedures for the maintenance of peace by using military elements and units (peace-keeping operations176). Peace-keeping on the basis of consent and cooperation was already developed under the League of Nations and remained fundamental under the UN Charter.177 The instruments of consensual and cooperative peace-keeping are diplomatic negotiations, conciliation and mediation, thus traditional means of dispute settlement as provided in Chapter VI of the UN Charter.178 By striving for impartiality and avoiding the use of force, peace-keeping on the basis of consent does not necessarily resolve conflicts but instead provides for stability which helps to create conditions required for a negotiated political settlement.179 As one additional element, since the 1960 crisis in the Congo and in order to contain the respective conflict by facilitating cease-fires and by preventing a resurgence of hostilities, military support in terms of military observer groups and peace-keeping-forces has become an important component of the consensual peace-keeping approach.180 In Cambodia, Namibia181 and West-Irian182, international administration had been entirely based on the consent of the states and 175 176 177 178 179 180 181 182 Cf. M. Bothe, “Peace-keeping”, in: Simma, see note 74, MN 13 et seq.; M. J. Matheson, “United Nations Governance of Postconflict Societies”, AJIL 95 (2001), 76 et seq.; De Wet, see note 170, 314 et seq. Bothe, see note 175, MN 1 et seq.; the terminology in the field of UN peace-keeping operations is far from consistent, cf. W. M. Reisman, “Preparing to Wage Peace: Toward the Creation of an International Peacemaking Command and Staff College”, AJIL 88 (1994), 76 et seq. Bothe, see note 175, MN 5 et seq.; De Wet, see note 170, 314 et seq. Bothe, see note 175, MN 5 et seq. Doyle, see note 47, 25. The military support aims at containing the conflict by facilitating ceasefires and by preventing a resurgence of hostilities; Bothe, see note 175, MN 7 et seq. See N. Matz, in this Volume. See D. Gruss, in this Volume. Keller, Case Study – Cambodia 159 parties involved.183 Since this action has been widely accepted by the UN member states, it is reasonable to accept the Security Council’s competence to establish territorial administration with the consent of the respective territory as a customary power.184 Hence, the legal basis for the establishment of UNTAC by Resolution 745 is to be found in the customary power entrusting the Security Council to administer territories by peace-keeping missions. b. UNTAC – Mandate and Implementation Part 1, section 2, article 2 para. 1 of the Comprehensive Settlement Agreement states that UNTAC will be established with civilian and military components under the direct responsibility of the UN Secretary General. For this purpose, the Secretary-General designated a Special Representative to act on his behalf. The detailed provisions for UNTAC’s mandate are to be found in annex 1 of the Comprehensive Settlement Agreement. They include general procedures (section A), UNTAC’s civil administration (section B), UNTAC’s military functions (section C) and provisions with regard to the elections (section D) and human rights (section E). aa. The Mandate and its Limitations The first limitation to UNTAC’s comprehensive mandate was provided for by the Comprehensive Settlement Agreement and Resolution 745. Part 1, section 1, article 1 of the Comprehensive Settlement Agreement states that the transitional period “shall commence with the entry into force of this Agreement and terminate when the constituent assembly (…) has approved the constitution and transformed itself into a legislative assembly (…)”. Resolution 745 specifies this provision and determines the time-frame of UNTAC’s activities in Cambodia. According to para. 2, UNTAC “shall be established (…) for a period not to exceed 18 months”. With the establishment of UNTAC by the above mentioned resolution, UNTAC absorbed the UNAMIC mission on 15 March 1992 and thus became operational. UNTAC’s mandate ended in 183 184 J. A. Frowein/ N. Krisch, “Article 41”, in: Simma, see note 74, MN 20. According to a different opinion, the consensual territories administration is based on the implied powers in Article 39 in conjunction with Article 29 of the UN Charter; De Wet, see note 170, 314. 160 Max Planck UNYB 9 (2005) September 1993 with the promulgation of the Constitution for the Kingdom of Cambodia and the formation of the new Government. The second limitation is to be found in the powers of the SNC. The provisions regulating the relationship between UNTAC and the SNC are included in Part 1, section 3, article 6 and in section A of annex 1 of the Comprehensive Settlement Agreement. As outlined above, article 6 states that the SNC delegates all powers necessary to the UN in order to ensure the implementation of the agreement. Article 2 of annex 1 provides special mechanism to resolve “all issues relating to the implementation of the Agreement which may arise between the SecretaryGeneral’s Special Representative” and the SNC. First, the SNC offered advice to UNTAC, which was meant to comply with this advice on condition that there was consent among the members of the SNC and that the advice was consistent with the objectives of the agreement.185 In the case of lack of consent among SNC members, the president was to decide on the advice offered to UNTAC.186 If the president was not in a position to decide on the advice, the power of decision was transferred to the Special Representative, taking fully into account the views expressed in the SNC.187 And finally, the Special Representative determined in all cases whether advice or action of the SNC was consistent with the agreement.188 As a rule, for cooperation between the SNC and UNTAC, the Special Representative was called to “attend the meetings of the SNC and of any subsidiary body which might be established by it and give its members all necessary information on the decisions taken by UNTAC”.189 The SNC had 12 members altogether in addition to the president.190 The latter, Prince Sinhanouk, was the only leading figure more or less acceptable to all Cambodian factions and entirely acceptable to the Five. Following the establishment of UNTAC, the SNC held a total of 30 meetings.191 The practice followed by the SNC showed that the implementation and the external manifestation of decisions were always 185 186 187 188 189 190 191 Comprehensive Settlement Agreement, annex 1, section A, para. 2, lit. a. Comprehensive Settlement Agreement, annex 1, section A, para. 2, lit. b. Comprehensive Settlement Agreement, annex 1, section A, para. 2, lit. c. Comprehensive Settlement Agreement, annex 1, section A, para. 2, lit. e. Comprehensive Settlement Agreement, annex 1, section A, para. 3. UN (ed.), The United Nations in Cambodia: A Vote for Peace, 1993, 10. See above. Keller, Case Study – Cambodia 161 entrusted to Sihanouk.192 Since Sihanouk closely cooperated with UNTAC and the Special Representative, the relationship between the SNC and UNTAC did not cause difficulties. Thus, in practice, UNTAC’s powers were not significantly limited. The SNC is one of the exceptional features of the Comprehensive Settlement Agreement, forming a body sui generis under international law.193 It is best regarded as an entity created by the Cambodian factions and given a special status, a type of international recognition in both a Security Council Resolution and the Comprehensive Settlement Agreement. The acceptance of the SNC by the international community did not conform to traditional notions of recognition of governments based on effective control and prospect of permanence. With regard to the legitimacy and acceptability of UNTAC’s powers, the establishment of the SNC is significant: the agreement creates a progression in the catena of legitimacy. It first grants the SNC a special legitimacy as embodying Cambodia’s sovereignty; from that premise flows the SNC’s competence to represent Cambodia externally as body sui generis; and on that basis, the SNC derives its authority from legally granting (vis-à-vis the parties to the Paris Agreements) powers to UNTAC.194 bb. Civil Administration by UNTAC The second exceptional feature of the Comprehensive Settlement Agreement is UNTAC’s mandate regarding Cambodia’s administration prior to the installation of a democratically elected government. As to the civil administration functions, they were to give UNTAC an exceptional level of involvement in a state’s official activities during a peacekeeping operation. The agreement provides for a three-tiered system to determine the relationship between UNTAC and the current governmental structures, i.e. the large administrative apparatus of the Vietnamese faction and the smaller organs of the three Cambodian factions.195 On the first tier, the agreement states that, in order to achieve a neutral political environment that would be conducive to free and fair 192 193 194 195 V. Krishnadasan, “A Legal Perspective on UNTAC: An Overview”, in: IPS/UNITAR, see note 54, 193. De Wet, see note 170, 297. Cf. Ratner, see note 84, 1 et seq. Cf. Ratner, see note 84, 1 et seq. 162 Max Planck UNYB 9 (2005) elections, “all administrative agencies, bodies and offices acting in the field of foreign affairs, national defence, finance, public security and information will be placed under the direct control of UNTAC”.196 The Special Representative was meant to exercise this control in order to guarantee the strict neutrality of the political environment in Cambodia. He was, furthermore, authorised to issue directives to the administrative agencies, bodies and offices binding all Cambodian parties. On the second tier, the Special Representative was meant to determine, in consultation with the SNC, which other administrative agencies, bodies and offices could directly influence the outcome of elections. These administrative entities were placed under direct supervision or control of UNTAC and were to comply with any guidance provided by it.197 The last tier of UNTAC’s control was destined for those administrative entities “that could continue to operate in order to ensure normal dayto-day life in Cambodia, if necessary, under such supervision by UNTAC as it considers necessary”.198 In that domain as well, the Special Representative was to determine the respective agencies in consultation with the SNC. The outlined system of control, however, does not override the procedures determining the relationship between UNTAC and the SNC provided for in section A, annex 1 of the Comprehensive Settlement Agreement.199 The Secretary-General is still to comply with the SNC’s advice provided that there is consent among the members of the SNC and provided that the advice is consistent with the objectives of the agreement. In July 1992, UNTAC began to exercise its direct control over the state of Cambodia’s administration in Phnom Penh. The civil administration personnel were deployed in the ministries of defence, national security, foreign affairs, consular affairs and finance. At the same time, UNTAC established provincial offices in all Cambodian provinces. The UNTAC personnel controlled the armed forces, trained Cambodian officers of the judiciary in penal law and human rights, established a border control unit in order to monitor customs and immigration and verified public revenue and expenditure.200 With respect to UNTAC’s di196 197 198 199 200 Comprehensive Settlement Agreement, part 1, section 3, article 6 and annex 1, section B, para. 1. Comprehensive Settlement Agreement, annex 1, section B, para. 2. Comprehensive Settlement Agreement, annex 1, section B, para. 3. Compare under IV. 2. b. aa.; Ratner, see note 84, 1 et seq. Cf. Doyle, see note 47, 37 et seq. Keller, Case Study – Cambodia 163 rect control over the administrative entities of all factions, it must be emphasised that in practice only the Vietnamese faction had real administrative structures to control. The FUNCINPEC and KPNLF had virtually none, while the Khmer Rouge refused to allow UNTAC access to its zones to determine the extent of its administrative control.201 As foreseen in the agreement,202 the Special Representative could determine administrative entities which could directly influence the outcome of the elections and thus establish the direct supervision or control of UNTAC over it. This was done with respect to agencies responsible for education, public health, agriculture, energy and communications.203 With UNTAC, the United Nations supervised, for the first time, the administration of a state in a broad and direct way.204 Although the civilian administration component was extensive, UNTAC’s mandate was not to govern but to control Cambodia during the transitional period. Moreover, the shared power relationship between UNTAC and the SNC provided for the acceptability of the transitional authority’s administrative powers. cc. Military Arrangements UNTAC’s military function was to stabilise the peace and security situation in Cambodia and to build an environment conducive to free and fair elections. The Comprehensive Settlement Agreement states that “UNTAC will supervise, monitor and verify the withdrawal of foreign forces, the ceasefire and related measures (…)”.205 To this end, UNTAC was compelled to verify the withdrawal of all foreign forces and their non-return to Cambodia, to monitor the cessation of outside military assistance to all Cambodian parties and to assist with mine clearing. All forces were urged to regroup and move under UNTAC’s control with arms and equipment to designated cantonment areas.206 Furthermore, UNTAC was supposed to initiate and supervise the demobilisation 201 202 203 204 205 206 Findlay, see note 87, 59. Comprehensive Settlement Agreement, annex 1, section B, para. 2. Ratner, see note 84, 1 et seq. The precedent direct administration of West-Irian by UNTEA cannot be compared with UNTAC, since the former was not endowed with a similar broad- scale mandate; for details to UNTEA see D. Gruss, in this Volume. Comprehensive Settlement Agreement , annex 1, section C, para. 1, lit. a-e. Comprehensive Settlement Agreement, annex 1, section C, paras 2 and 3. Max Planck UNYB 9 (2005) 164 process of the military forces of all parties.207 Finally, UNTAC was to assist, as necessary, the International Committee of the Red Cross in the release of all prisoners of war and civilian internees.208 The military with 16,000 personnel from 32 countries emerged as the largest of UNTAC’s components. The UN military presence after UNAMIC began in June 1992 under a unified command.209 UNTAC’s mandate in the military field was significant to the settlement. The parties agreed that an international presence not only controls, but also supervises – the military aspects of the settlement. dd. Human Rights The Paris Agreements accorded UNTAC the responsibility for promoting an environment during the transitional period, in which respect for human rights was ensured.210 To this end, UNTAC was to make provisions for the “development and implementation of a programme of human rights education to promote respect for and understanding of human rights;”211 for “general human rights oversight during the transitional period;”212 and for the “investigation of human rights complaints, and, where appropriate, corrective action.”213 To undertake this mandate, UNTAC was active on two main fronts: addressing continuing violations of human rights, particularly those affecting the elections on the one hand; and, on the other hand, building the foundations for long-term human rights protection. In monitoring ongoing violations, UNTAC cooperated closely with the Cambodian authorities. Part of its work was to survey prisons throughout the country and to survey the information presented in the media and in education through schools and universities.214 The SNC signed overall seven major human rights accords, all of these were translated into Khmer and widely circulated with the assistance of local human rights 207 208 209 210 211 212 213 214 Comprehensive Settlement Agreement, annex 1, section C, para. 4 and annex 2. Comprehensive Settlement Agreement, annex 1, section C, para. 5. UN, see note 190, 37 et seq. Comprehensive Settlement Agreement, part 3, article 16. Comprehensive Settlement Agreement, annex 1, section E, lit. a. Comprehensive Settlement Agreement, annex 1, section E, lit. b. Comprehensive Settlement Agreement, annex 1, section E, lit. c. UN, see note 191, 54. Keller, Case Study – Cambodia 165 groups.215 Furthermore, due to the lack of satisfactory judiciary and legislation, UNTAC induced the SNC on the basis of annex 1, section D, para. 3, lit. a and b of the Comprehensive Settlement Agreement to adopt regulations relating to the judiciary and criminal law procedures during the transitional period prior to the elections.216 UNTAC’s role in protecting human rights was important, as it centralised human rights monitoring and promotion in the United Nations. The Paris Agreements integrate human rights into the conditions necessary for free and fair elections and therefore entrust human rights functions to UNTAC.217 ee. Elections The goal of the civilian and military arrangements was a politically neutral and peaceful environment for free and fair elections. Thus, as the crucial point of the peace plan, the Comprehensive Settlement Agreement entrusted UNTAC with organising free and fair elections for a national constituent assembly.218 The main provision on elections is part 2, article 12 of the Comprehensive Settlement Agreement.219 Section D of annex 1 and annex 3 of the Comprehensive Settlement Agreement contain the most important requirements for the elections. UNTAC was to determine a timetable for the electoral process, but the duration of the electoral process was not to exceed nine months from the commencement of voter registration.220 As a rule for the electoral process, UNTAC “will make every effort to ensure that the system and procedures adopted are absolutely impartial, while the operational arrangements are as administratively simple and efficient as possible.”221 UNTAC was to establish, in consultation with the SNC, “a system of laws, procedures and administrative measures necessary for the holding of a free and fair election in Cambodia, including the adoption of an electoral law and of a code of conduct regulating participation in the election in a manner consistent with respect for human rights and pro215 216 217 218 219 220 221 IPS/UNITAR, see note 54, 19. Findlay, see note 87, 64. Cf. Ratner, see note 84, 1 et seq. Comprehensive Settlement Agreement, part 2, article 12. Compare under III. 3. c. bb. Comprehensive Settlement Agreement, annex 1, section D, para. 5. Comprehensive Settlement Agreement, annex 1, section D, para. 6. 166 Max Planck UNYB 9 (2005) hibiting coercion or financial inducement in order to influence voter preference.”222 In the case that existing laws contain provisions which could defeat the objects and purposes of the agreement, UNTAC was authorised, after having consulted the SNC, to suspend or abrogate such laws.223 To support the electoral process, UNTAC designed and implemented a voter education programme.224 In the first phase of the electoral process, UNTAC was to create a system of voter registration, “to ensure that eligible voters have the opportunity to register (…)”.225 UNTAC was moreover responsible to facilitate the presence of foreign election observers and to investigate complaints of electoral irregularities entailing corrective action.226 At the end of the electoral process, UNTAC had to determine, “whether or not the election was free and fair and, if so, certification of the list of persons duly elected”.227 UNTAC finally was to establish a system of safeguards to ensure the absence of fraud during the electoral process.228 The registration of the parties began in August 1992, and voter registration started in October 1992. A total of more than four and a half million Cambodians were registered, representing nearly all estimated potential voters in zones to which UNTAC had access.229 Twenty political parties, among them the three factions FUNCINPEC, the Vietnamese faction and the KPNLF, presented themselves as parties.230 The elections took place from 23 to 28 May 1993 in a surprisingly nonviolent environment. The voter turnout constituted a democratically satisfactory result of 90 per cent. In June 1993, the votes were counted. Sihanouk’s FUNCINPEC obtained the majority of votes (45 per cent) and hence, the majority of seats in the constituent assembly. The Vietnamese faction achieved 38 per cent of the popular vote and the KPNLF not quite four per cent. The remainder of the votes was shared among the 17 other parties.231 By Resolution 835232, the UN Security 222 223 224 225 226 227 228 229 230 231 Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. a. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. b. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. c. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. d. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. i-k. Comprehensive Settlement Agreement, annex 1, section D, para. 3, lit. l. Comprehensive Settlement Agreement, annex 1, section D, para. 4. Marks, see note 16, 45 et seq. Doyle, see note 47, 20. Doyle, see note 47, 46. Keller, Case Study – Cambodia 167 Council invited the Secretary-General to report on the Cambodian election; the Secretary-General declared the election “free and fair” and the election’s result “fairly and accurately reflecting the will of the Cambodian people”.233 The Security Council endorsed the elections by Resolution 840, entirely supporting the new constituent assembly.234 In September 1993, Sihanouk as head of state signed the new constitution and accepted his formal restoration as King of Cambodia. As envisaged in the Paris Agreements, the constituent assembly was transformed into the new national assembly authorised to elect the new Cambodian government. At this point, UNTAC’s 18 month mandate came to its end.235 Cambodia’s elections were the first ones organised by the UN. The Comprehensive Settlement Agreement includes – arguably on account of this – a catalogue of highly detailed provisions with respect to UNTAC’s mandate. Unlike the elections in Namibia,236 where the UN only had an observational role, UNTAC was in charge of the entire organisation and supervision of the elections. c. UNTAC’s Operation – Success or Failure? The UN Secretary-General, at the outset of UNTAC’s mission had identified four essential conditions for it in order to “discharge its responsibilities effectively and with complete impartiality”:237 the full support of the UN Security Council; the full cooperation of the Cambodian parties and all other parties involved; full freedom of movement and communications; and the necessary financial resources provided by member states in a full and timely manner.238 These four conditions were not entirely achieved. Whereas UNTAC mostly had the full support of the Security Council and the operation was amply funded, other conditions were not achieved. One of the essential conditions entirely absent was the 232 233 234 235 236 237 238 S/RES/835 (1993) of 2 June 1993. Doc. S/25913 of 10 June 1993. S/RES/840 (1993) of 15 June 1993. Findlay, see note 87, 97. See N. Matz, in this Volume. Doc. S/23613 of 19 February 1992. Findlay, see note 87, 102. Max Planck UNYB 9 (2005) 168 full cooperation of the Cambodian parties – that is the Khmer Rouge’s incompliance with the peace accords and its refusal to participate in the peace process.239 UNTAC’s military faced enormous problems with respect to the implementation of the ceasefires and the disarmament of the Cambodian factions. In order to resume power, the PDK repeatedly refused to comply with the ceasefire and impeded the disarmament since the very beginning of UNTAC’s establishment in March 1992.240 Despite many attempts and a special appeal by the Secretary-General,241 notwithstanding the respective compliance of the other three Cambodian factions, the PDK persisted in their position of non-compliance. Hence, the Khmer Rouge faction finally declared that it would take no further part in the Paris Agreements implementation and the last active Khmer Rouge leaders surrendered only in 1999.242 After several deliberations among the UN and its members, the Security Council decided in Resolution 792243 to continue with UNTAC’s mandate nonetheless since any delay would have jeopardised the elections and undermined the peace process in Cambodia.244 However, the presumption that UNTAC’s mandate must be considered a success is based on the following reasons: UNTAC’s design by the Paris Agreements; the coexistence of UNTAC and the Supreme National Council; the civilian nature of UNTAC’s tasks; UNTAC’s electoral component and the practical consideration that Cambodia was transformed into a basically secure, peaceful, democratic state. As to the first reason for UNTAC’s success, the comprehensiveness of the settlement plan deserves to be highlighted. In the Cambodian peace process, the parties agreed not only to the terms of ceasefire and the disarming of the factions but also to the maintenance of law and order and the repatriation of refugees. Moreover, they accepted unanimously UNTAC’s promotion of human rights and principles for a new constitution, the UNTAC supervision of the administration and – most significant and important – the organisation, conduct and monitoring of elections by a UN transitional authority.245 The unprecedented and 239 240 241 242 243 244 245 Findlay, see note 87, 102. Salmen, see note 60, 123 et seq. Doc. S/24090 of 12 June 1992. Salmen, see note 60, 123 et seq. S/RES/792 (1992) of 30 November 1992. Boutros-Ghali, see note 4, 19. Doyle, see note 47, 25. Keller, Case Study – Cambodia 169 unique comprehensiveness of UNTAC’s mandate comprised the personal and financial dimension as well:246 throughout its 18 month mandate, UNTAC disposed of a varying strength of 21,000 military and civilian personnel; the costs – including those for UNAMIC – amounted to 1,6 billion US$.247 As to the second reason, the coexistence of UNTAC and the SNC, the SNC was legitimated by all Cambodian factions and acted as a unique source of legitimacy. The SNC was mainly responsible for exercising legislative power, while UNTAC acted primarily within the executive and judicial domain.248 This mechanism of coexistence was designed to avoid the delicate question of how to obtain consent for an international presence from different and differing parties, all of which claimed to be the legitimate government of Cambodia in the time before UNTAC’s establishment.249 The civilian nature and the consensual basis of the transitional authority must be mentioned as a third reason for UNTAC’s success. As outlined above250, UNTAC’s operation, based on the consent of the conflicting parties gave rise to more acceptability; even though one of the conflicting parties – the Khmer Rouge – “withdrew” its initial consent during the peace-building process, UNTAC provided for stability in Cambodia due to its consensual basis. Moreover, the peace process, as a result of years of diplomacy, would have been torn apart if any attempt to use force had been made by UNTAC. The fourth reason for UNTAC’s success can be found in the electoral component. It serves as an example of what the UN and the international community can achieve with adequate resources and a professional planning. As the Cambodian people began the process of choosing their first democratically elected government since the 1960s, the situation in Cambodia was far from ideal. The result, free and fair elections to the constituent assembly and the creation and adoption of a 246 247 248 249 250 UNTAC’s personal and financial dimension could at most be compared to that of UNMIK in Kosovo; for more details see J. Friedrich, in this Volume. Cf. http://www.un.org/Depts/dpko/dpko/co_mission/untacfacts.html. Comprehensive Settlement Agreement, part 1, section 3, arts 3 and 6. Chesterman, see note 168, 74. See under IV. 2. a. 170 Max Planck UNYB 9 (2005) new Cambodian constitution has to be regarded as UNTAC’s major accomplishment. After the completion of UNTAC’s transitional operation in September 1993, the process of Cambodia’s reconstruction proceeded – this must be mentioned as the fifth reason for UNTAC’s success. Notwithstanding several incidents affecting Cambodia’s security and peace situation, UNTAC achieved Cambodia’s rehabilitation and reconstruction in many ways: estimates are that in only one year some 370,000 refugees and another 200,000 displaced person were assisted in returning to their former home.251 Moreover, the transitional authority left a democratically elected government; it set in place the rudiments for a civil society; various rehabilitation projects improved the economy; and it contributed to the establishment of a state, which – for the first time for nearly 30 years – was not ruled by violence, intimidation and suppression, but by a stable government and by democratically legitimated law.252 V. Post-Conflict Justice in Cambodia One of the most important and difficult challenges confronting a postconflict society is the re-establishment of faith in the state.253 The need to balance reconciliation and stability for serious human rights violations has been faced by numerous states which have suffered armed conflicts in recent years.254 Given the dimension of the crimes committed by the Khmer Rouge during the Pol Pot regime, the fact that Cambodia is a party to the Genocide Convention and the degree of international involvement in the comprehensive state building process would lead to the assumption that the Paris Agreements or – at any rate – the Cambodian constitution would address the issue of post-conflict jus- 251 252 253 254 IPS/UNITAR, see note 54, 28. For a detailed study of the Cambodian post-conflict situation compare International Crisis Group (ICG), Asia Report 8, 2000, Cambodia: The Elusive Peace Dividend, www.crisisgroup.org. Chesterman, see note 168, 154. Compare for detailed account of post-conflict justice A. Seibert-Fohr, in this Volume. Keller, Case Study – Cambodia 171 tice.255 However, it is a well-known fact that the issue of post-conflict justice in Cambodia came seriously to the fore only in late 2003. 1. Negotiations on a Khmer Rouge Tribunal The morally and politically tortuous question of how to handle Khmer Rouge responsibility for genocide hung over the whole peace process, i.e. from 1979 until 1991. Some participants to the peace process advocated war crime trials, but most of them argued for putting the topic aside in the interest of Cambodian unity. Some other participants expected that a new democratically elected government would deal with the delicate issue. In any case, Cambodia’s reconstruction was judged to be of higher priority than post-conflict justice.256 There are three main reasons for this delayed prosecution of the crimes committed: first, the last active Khmer Rouge leaders surrendered only in 1999, thus, Khmer Rouge as a fighting force still existed for 20 years after the official end of the regime. Second, many of the political, military and financial elites in Cambodia were affiliated with former Khmer Rouge officials. Numerous Cambodian citizens’ life was connected in one or many ways to the Khmer Rouge. Although public opinion surveys discovered repeatedly that the overwhelming majority of Cambodians wanted the Khmer Rouge leadership to be prosecuted for their crimes, thus far the political elite has been unwilling to do so, because nobody has completely clean hands.257 Third, the international community’s interest in accountability for Khmer Rouge crimes has increased only in recent years. This is due to the fact that from 1979 until 1989, international commitment predominantly focussed on the Vietnamese troops’ withdrawal from Cambodia. Only subsequent to Vietnam’s withdrawal in 1989, did the issue of post-conflict justice come to the fore. In 1997, the UN and the Cambodian government entered into negotiations on the establishment of a tribunal. Four years later, the Cambodian government passed a national law on the establishment of Extraordinary Chambers aiming at 255 256 257 Marks, see note 16, 45 et seq. Similar logic has been applied in the case of peace settlements in Nicaragua and South Africa; cf. Findlay, see note 87, 6. C. Etcheson, “The politics of Genocide Justice in Cambodia”, in: P. Sands/ R. Mackenzie/ C. Romano (eds), Internationalized Criminal Courts, 2004, 181. 172 Max Planck UNYB 9 (2005) the prosecution of the Khmer Rouge crimes (hereinafter “the Cambodian law”).258 The Cambodian law settled several issues that had previously given rise to legal and political controversies between the Secretary-General and the Cambodian government because several provisions were settled in the manner favoured by the Cambodian government.259 After a period of unsatisfactory negotiations, and faced with this insufficient fait accompli, the Secretary General decided to leave the negotiations.260 2. Establishing the Khmer Rouge Tribunal In Resolution 57/228 A, the General Assembly called on the SecretaryGeneral to resume negotiations to conclude an agreement with the Government of Cambodia, based on previous negotiations on the establishment of the Extraordinary Chambers.261 According to the resolution, the Extraordinary Chambers should have a jurisdiction consistent with that set forth in the Cambodian law on the establishment of the Extraordinary Chambers.262 The personal jurisdiction of the Chambers should cover the senior leaders of Democratic Kampuchea and those most responsible for the crimes during the Khmer Rouge regime.263 The arrangements for the establishment of the Extraordinary Chambers are to ensure that the Chambers exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law and include provisions for the impartiality, independence and credibility of the process.264 258 259 260 261 262 263 264 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Law NS/RKM/0801/12, http://www. derechos.org/human-rights/seasia/doc/krlaw.html. E.E. Meijer, “The Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal”, in: Sands/ Mackenzie/ Romano, see note 257, 207. Cf. Documentation Centre of Cambodia (DCCAM), www.dccam.org. Para. 1 of A/RES/57/228 A of 18 December 2002. Ibid., para. 2. Ibid., para. 3. Ibid., paras 4, lit. a and 5. Keller, Case Study – Cambodia 173 Following the General Assembly’s resolution, the Secretary-General resumed negotiations with the Cambodian government in March 2003. The UN and the Cambodian government finally reached a draft agreement265 on the establishment of Extraordinary Chambers in the courts of Cambodia (hereinafter “Extraordinary Chambers”) where former Khmer Rouge leaders should be brought to trial. The General Assembly adopted the draft agreement with Resolution 57/228 B.266 After signing the Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea (hereinafter “the agreement”), the Cambodian parliament at last ratified it in October 2004. Both parties had stipulated that the agreement would have primacy over the Cambodian national law and that provisions in national law that were irreconcilable with the agreement would be modified accordingly.267 a. The Extraordinary Chambers and their Jurisdiction The Extraordinary Chambers significantly differ from other war crimes tribunals in place at present. Like the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers are established by a bilateral agreement. Unlike the SCSL, the Extraordinary Chambers are established within a domestic legal system.268 The bilateral agreement only provides a legal basis for the cooperation between the two parties and regulates the principles and modalities of such cooperation. Thus, the Cambodian law is the constitutive instrument of the Extraordinary Chambers. This goes back to a compromise in which the Cambodian government achieved acceptance of its position by the UN.269 Unlike other war crimes tribunals, international judges are not in the majority on the benches of the chambers. One of the Extraordinary Chambers consists of three national and two international judges, the 265 266 267 268 269 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea, annex 1 of A/RES/57/228 B of 13 May 2003. A/RES/57/228 B of 13 May 2003. Cf. Meijer, see note 259, 208. For details to the SCSL see M. Goldmann, in this Volume. Cf. Meijer, see note 259, 210 et seq. 174 Max Planck UNYB 9 (2005) Appeals Chamber consists of four national and three international judges.270 At least, the Cambodian government was willing to accept that the Chambers need an absolute majority for each of their decisions. The Chamber’s composition also seems to go back to an arrangement with the Cambodian government.271 Under the agreement and the Cambodian law, the temporal jurisdiction of the Extraordinary Chambers extends from 1975 to 1979, the period of the Khmer Rouge regime.272 Although it is not unusual for an internationalised judicial body to cover only crimes committed within a specific period of time, it must be stressed that the Khmer Rouge crimes were committed before and after the mentioned era as well. With a more expansive approach concerning temporal jurisdiction, one could be more confident that there would be a complete review of the Cambodian past. On the other hand, the virtue of limits on temporary jurisdiction becomes clearer in comparison with other cases such as Iraq.273 The jurisdiction of the Extraordinary Chambers covers crimes under international and domestic law. The international offences to be prosecuted are genocide, crimes against humanity and grave breaches of the Geneva Conventions.274 The co-existence of two different legal orders – the international conventions and domestic law – could cause difficulties with respect to the effective application of the law. Concerning personal jurisdiction, the agreement and the Cambodian law provide for “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations.”275 This formulation is open to different interpretations and may give rise to some questions: how, for example, is “seniority” to be defined and how can it be evaluated that a person is “most responsible”? Answers to these questions will have to be found by the Extraordinary Chambers jurisdiction. 270 271 272 273 274 275 Cambodian law, article 3. Meijer, see note 259, 212. Agreement, article 1; Cambodian law, article 4. With respect to the Iraqi Special Tribunal see R. Wolfrum, in this Volume. Agreement, arts 1 and 9; Cambodian law, article 9. Cambodian law, article 12, para. 1. Keller, Case Study – Cambodia 175 b. Procedural Law, Fair Trial and Penalties Both the Cambodian law and the agreement are relatively brief and show ambiguities regarding the applicable procedural law. The agreement leaves procedural matters essentially to the Cambodian law. It states that “where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency (…) with international standards, guidance might also be sought in procedural rules established at the international level.”276 The Cambodian law is drafted even more narrowly with respect to international procedural standards as it provides for the application of international standards only “if necessary and if there are lacunae in the existing procedures.”277 As to guarantees regarding the question of fair trial, the agreement mentions the principles of fairness, due process, public trials and the right to defence. Those principles have to be applied in accordance with arts 14 and 15 of the 1966 International Covenant on Civil and Political Rights to which Cambodia is a party.278 The Cambodian law also provides for the rights of the accused and the protection of victims and witnesses have to be fully respected.279 The trials have to be public unless “in exceptional circumstances” the Extraordinary Chambers decide to close the proceedings “for special reasons.”280 The rights of the defendant comprise the presumption of innocence, the right to be informed promptly and in an understandable language and the right to self-defence or assistance.281 The Cambodian law seems to be unelaborated and incomplete. In the interests of clarity, completeness and comprehensive rules with respect to fair trial, an explicit reference in the Cambodian law to the International Covenant on Civil and Political Rights would have been advisable.282 According to the agreement and the Cambodian law, all pen- 276 277 278 279 280 281 282 Agreement, article 12. Cambodian law, article 33, para. 1. Agreement, arts 12, paras 2 and 13. Cambodian law, article 33. Cambodian law, article 34. Cambodian law, article 35. Cf. Meijer, see note 259, 227. Max Planck UNYB 9 (2005) 176 alties shall be limited to life imprisonment.283 A first draft of the law providing for the death penalty as the maximum penalty was rejected by the Constitutional Cambodian Council by reasons of unconstitutionality.284 Under the actual Cambodian law, the prison term extends from five years to life imprisonment and may be combined with confiscation of personal property, money, and property acquired unlawfully or by criminal conduct.285 3. Post-Conflict Justice in Cambodia? Considering the above-mentioned points, the UN’s readiness for compromise faced with the position of the Cambodian government regarding post-conflict justice regulation has resulted in an inconclusive result. The initial disagreement between the two parties was fundamental: the Cambodian government wanted a national tribunal dominated by Cambodia and with assistance of the UN. The UN was only willing to support and assist a predominately international tribunal because of the dubious reputation of the domestic judiciary.286 An obvious motivation for the UN to advance the negotiations and to accept compromises with regard to the Extraordinary Chambers may have been the fact that, with many defendants being older than 70, time is running out for justice to be served. VI. Conclusions Cambodia has experienced the status as a protectorate in the Union Indochinoise Française, followed by the quasi-feudalist reign by both Prince and King Sihanouk; a violent military coup and civil war under Lon Nol; the terrors and genocide of the Khmer Rouge Maoism in 1975; the illegitimate occupation and oppression of the communist regime installed by Vietnam; and finally, during those vast mainly internal conflicts, the state was abused as a cue ball in the Cold War and post 283 284 285 286 Agreement, article 10; Cambodian law, article 28. Cf. Meijer, see note 259, 229. Cambodian law, article 39. Cf. Etcheson, see note 257, 201 et seq. Keller, Case Study – Cambodia 177 Cold War era.287 Even though the peace process, the implementation of the Paris Agreements and UNTAC faced enormous challenges, it must be said that the state building process in Cambodia succeeded. A main advantage in the Cambodian state building process was the fact that Cambodia, as a nation,288 was never falling apart. However, a positive side of Cambodia’s tragic history is that inter alia due to the French protectorate, Cambodia remained a relatively homogeneous nation. Had it not been under French protection, the state would eventually have been swallowed up by Thailand or Vietnam.289 The Paris Agreements of 1991 represent an ambitious attempt to end a decades-old conflict rooted in events within and outside Cambodia.290 Major efforts were made by all the parties involved in the peace settlement process to reach a peace agreement. This should be a lesson for future state building procedures: a widespread consensus on the modalities of a peace settlement can lead to the acceptability of a transitional authority. And, moreover, in contrast to the Chapter VII peace-keeping operations, the consensual approach goes without the use of force and attaches importance to diplomatic strategies and deliberations. Even if it is true that the lack of success of certain peace-keeping operations e.g. UNPROFOR in the former Yugoslavia has prompted calls for more “robust” peace-keeping, if that means sacrificing the advantages of the non-use-of-force approach, the international community would loose an important tool of deliberative conflict management.291 Despite the Khmer Rouge’s violations and non-compliance with the peace plan, the benefits of the Paris Agreements are also to be found in the multilateral approach: the four differing Cambodian factions were encouraged to find an agreement and to renounce their own preferences which were incompatible with the will of the other parties. The comprehensiveness of the Paris Agreements has to be highlighted as a further element of success in the Cambodian state building process: the parties to the peace agreement agreed not only to the terms of a ceasefire and disarmament but also to the maintenance of law and order and the repatriation of refugees; they agreed to constitutional 287 288 289 290 291 Doyle, see note 47, 51 et seq. For details, see R. Utz, in this Volume. Herz, see note 11, 62. Ratner, see note 84, 1 et seq. Cf. Bothe, see note 175, MN 7 et seq. 178 Max Planck UNYB 9 (2005) principles for the future Cambodian constitution. Furthermore, UNTAC’s promotion of human rights and principles for a new constitution, the supervision of the administration and the organisation, conduct and monitoring of elections by a UN transitional authority were part of the Paris Agreements. The peace plan provided for an exceptional solution to the problems that could arise from the fact that different and differing parties claim to be the legitimate government of a state in transition. The SNC as body sui generis had a status of unique source of legitimacy. The coexistence of the SNC and UNTAC helped furthermore to assure the acceptance of the UN transitional administration in Cambodia. As much as UNTAC’s mandate was successfully implemented, equally the post-conflict justice settlement in Cambodia must be considered as a failure. Lack of unanimity between the United Nations and the Cambodian state, meant that the process of establishing the Khmer Rouge tribunal took too long; furthermore, UN compromises with regard to a sufficient legal prosecution system fall short of the grave human rights breaches committed by the Khmer Rouge regime. Restructuring Bosnia-Herzegovina: A Model with Pit-Falls Dr. Karin Oellers-Frahm I. Introduction II. History III. The Disintegration Process 1. The Declaration and Recognition of the Independence of the Constituent Republics 2. The Badinter Commission IV. The War in Bosnia-Herzegovina and the Accompanying Peace Process 1. The Development of the Armed Conflict 2. First Peace-Plans 3. The Involvement of the UN V. The Dayton Peace Agreement (DPA) 1. The Negotiating Process 2. Contents of the Dayton Peace Agreement 3. Related Agreements 4. Summary Assessment of the DPA VI. The State-Building Aspects of the DPA 1. The General Aspects of the Constitution 2. The Management of the Ethnic Aspects in the Constitution a. The Entities b. The Right to Self-Determination c. The Central State d. The Constitutional Court e. Consequences Flowing from the Ethnic Partition 3. Human Rights Issues a. General Remarks b. The Commission on Human Rights A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 179-224. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. Max Planck UNYB 9 (2005) 180 4. The International Administration a. The Office of the High Representative b. The Powers of the HR c. Change of Strategy d. Accountability of the HR VII. Accountability for Acts Committed During the Armed Conflict: The ICTY VIII. Excursus: Two Special, but Characteristic Issues: Brcko and Mostar 1. The Case of Brcko 2. The Case of Mostar IX. Model Character of the DPA for Other Cases, in particular Iraq? X. Concluding Remarks I. Introduction The reconstruction of Bosnia-Herzegovina following the armed conflict between 1991 and 1995 can only be treated in the context of the break-down of the Yugoslav Federation. Therefore, a brief historical overview must report the developments which led to the secession first of Croatia and Slovenia from the Federal Socialist Republic of Yugoslavia and the international efforts accompanying the secession procedure in order to respect the legal prerequisites for a peaceful change. Only against this background will it be possible to understand the “case of Bosnia-Herzegovina” and to evaluate the post-conflict restructuring process. II. History The roots of the conflict in Bosnia and Herzegovina may be traced to the aftermath of World War I when the “Kingdom of Serbs, Croats and Slovenes” was founded in 1918, which after 1929 was renamed into “Kingdom of Yugoslavia”.1 In fact, it was the Serbs who were predominant in this multi-ethnic Kingdom. Nevertheless, the state perceived itself as a national state, which was expressed in the 1921 constitution based on national unitarianism and centralism. In violation of the com1 For the history see more in detail S. Oeter, “Yugoslavia, Dissolution”, in: R. Bernhardt (ed.), EPIL 4 (2000), 1563 et seq.; A. Herdina, “Bosnia and Herzegovina between Separation and Integration, The Historical Dimension of the Problem”, Revue des Affaires Européennes 7 (1997), 383 et seq. Oellers-Frahm, Case Study Bosnia-Herzegovina 181 promise agreed upon at the time of unification, this constitution was adopted by simple majority, i.e. the Serbian members of Parliament against the votes of the Croatians and Slovenians. Thus a crisis of legitimacy accompanied the state since its beginning. After World War II and the end of the monarchy Yugoslavia was split up and its territory attributed to various states. However, in 1943 the Communists under Josip Broz “Tito” had already prepared guidelines for a future structure of Yugoslavia and in January 1946 a federal constitution was adopted following by and large the Stalinist Soviet constitution of 1936. Yugoslavia was constituted as a federation consisting of six constituent Republics: Slovenia, Croatia, BosniaHerzegovina, Serbia, Montenegro and Macedonia as well as two autonomous territories inside Serbia, namely the Kosovo and the Vojvodina. Although the organization of the state was a federal one, in practice the state was highly centralized in that it was governed by a strong one-party communist dictatorship. Nevertheless, decentralising tendencies of the economic organization as well as of the Yugoslav Communist Party developed during the 1950s and 1960s. In 1974 a new constitution was adopted which increased the competencies of the republics leaving only some powers, such as foreign policy, defence, currency, and customs to the federation. These central powers lay with the collective state Presidency which again was composed of representatives of the six republics and the two autonomous regions. The system thus resembled a confederation which was dominated, however, by the one-party-system existing in Yugoslavia since 1945. When Marshall Tito died in 1980, the weakness of the institutional structure became evident and first signs of disintegration appeared. The economic situation was heavily worsening, with hyper-inflation and a decaying living-standard contributing thus to the delegitimation of the political system. At that time nationalist tendencies gained importance in the “constituent nations”. Thus, in particular the new leader of the Socialist Party of Serbia, Slobodan Milosevic, abolished by forceful means the autonomy of the autonomous provinces Kosovo and Vojvodina, where 90 per cent of the population were Albanians. He also replaced the leadership of Montenegro by persons loyal to him so that the predominance of Serbian votes was guaranteed. Owing to these developments the leading role of the Communist Party could not be upheld and the Party broke apart in January 1990. Also the other republics intensified their democratic reforms and opened the way for free elections. In the elections of 1990 the national- Max Planck UNYB 9 (2005) 182 ist centre-right parties obtained the majority in four of the six republics, which began to reform their constitutions according to the western parliamentary systems, however, strongly referring to the nationalism of the “constituent peoples”. Nevertheless, the Serbian bloc tried to reconstruct Yugoslavia with a centralized constitution under Serbian dominance against the declared will of, in particular, Croatia and Slovenia which were prepared to accept only a rather loose confederation, but which, in practice, were more or less decided to gain independence. Bosnia-Herzegovina and Macedonia favoured a new federal constitution for Yugoslavia, but were decided to secede from Yugoslavia if Croatia and Slovenia did so. III. The Disintegration Process The disintegration process which the Serbs tried to prevent by armed force was accompanied right from its beginning by diplomatic attempts, in particular by the EC, aimed at reaching a peaceful change.2 1. The Declaration and Recognition of the Independence of the Constituent Republics On 25 June 1991 Croatia and Slovenia declared their independence which was followed by an armed intervention of the federal army which, however, failed. The troops had to withdraw, also under the political pressure from outside, in particular the EC and the United States. The EC sponsored negotiations between the federal government and the Republics which led to a cease-fire and reserved the final status of Yugoslavia to further negotiations. However, the fighting continued and escalated into full-scale war. Again, cease-fires were agreed upon and observer missions of the EC installed for Slovenia and Croatia. Finally, because the cease-fires were unsuccessful, a Peace Conference on Yugoslavia was convened by the EC in September 1991 seeking a peaceful settlement in accordance with the commitments and principles of the Conference on Security and Cooperation in Europe (CSCE), in particular the one “never to recognize changes of any borders which 2 Cf. in this context C. Giersch, Konfliktregulierung in Jugoslawien 19911995, 1998, passim. Oellers-Frahm, Case Study Bosnia-Herzegovina 183 have not been brought about by peaceful means and by agreement”. The Conference finally failed because Serbia refused any negotiated solution which would not consolidate its military conquests.3 2. The Badinter Commission As to the question of recognizing Croatia and Slovenia as independent states the members of the EC were dissenting. When finally at the end of 1991 Germany and Austria declared that they would recognize Slovenia and Croatia unilaterally failing a common move of the EC, the other Member States of the EC finally agreed in mid-December on a specific procedure for recognizing the new states seceded from the former Yugoslavia and fixed the conditions which had to be fulfilled by the new states for recognition.4 The decision in respect of the conditions was entrusted to an arbitration commission, the so-called “Badinter Commission”.5 The first opinion that the Badinter Commission had to deliver concerned the question of the legality of the secession, which was affirmed by the statement “that the Socialist Federal Republic of Yugoslavia is in a process of dissolution” and that “it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law”.6 Although the Badinter Commission had found that only Macedonia and Slovenia unconditionally qualified for immediate recognition, Croatia and Slovenia were recognized by Germany on 23 December 1991, the other EC members following soon. With regard to Bosnia-Herzegovina, the Badinter Commission stated that “the will of the peoples of Bosnia and Herzegovina (BiH) to 3 4 5 6 Cf. P.W. Galbraith, “Washington, Erdut and Dayton: Negotiating and Implementing Peace in Croatia and Bosnia-Herzegovina”, Cornell Int’l L. J. 30 (1997), 643 et seq. Decision of the EC-Council of 16 December 1991, ILM 31 (1992), 1485 et seq. The Arbitration Commission was originally established in the framework of the Peace Conference on Yugoslavia at the Brussels meeting on 7 August 1991, ILM 31 (1992), 1488. In 1993 the Commission agreed on terms of composition and reference as well as on its Rules of Procedure, ILM 32 (1993), 1573 et seq.; cf. also M.C.R. Craven, “The European Community Arbitration Commission on Yugoslavia”, BYIL 66 (1996), 323 et seq. Text of the Opinion in ILM 31 (1992), 1494 et seq. 184 Max Planck UNYB 9 (2005) constitute the Socialist Republic of BiH as a sovereign and independent state cannot be held to have been fully established”7 and that a referendum was required. After a positive referendum, which was boycotted by the majority of the Serbs but received more than two-thirds of the Bosnian votes, the EC and its Member States recognized BiH on 7 April 1992 notwithstanding the beginning armed incidents. On 22 May 1992 BiH was admitted as a Member State to the UN.8 As a response to the recognition of the Republic of BiH by the EC and the United States, the Assembly of Serbian People in BiH unilaterally declared the independence of the Serbian Republic of Bosnia and Herzegovina which was, however, declared unconstitutional by the constitutional court. IV. The War in Bosnia-Herzegovina and the Accompanying Peace Process 1. The Development of the Armed Conflict Already in 1991 the Government of Serbia had threatened that declaring the independence of BiH would not be accepted and would lead to armed conflict. These warnings were ignored by the international community. However, when applying for recognition under the conditions set out by the EC, the President of BiH, Izetbegovic, had already asked for preventive deployment of UN forces in early 1992, which was rejected. The violence which the Serbs had already begun after the referendum in order to preclude recognition increased. The Government of BiH declared a state of emergency and mobilized its armed forces. But the Serb forces, supported by the JNA (the federal army of Yugoslavia) units still present in BiH, were better armed and trained and gained control over large parts of Bosnian territory. Serb authorities and militia began with the policy of “ethnic cleansing”, killing thousands of Muslims and Croats. When on 12 May 1992 Yugoslavia was declared reorganized as the new “Federal Republic of Yugoslavia” (FRY) with JNA forces stationed in BiH officially as the army of the Serbian Re7 8 Opinion No. 4 of 11 January 1992, text in ILM 31 (1992), 1501 et seq. See in this context the very critical remarks of M. Barutciski, “Politics Overrides Legal Principles: Tragic Consequences of the Diplomatic Intervention in Bosnia-Herzegovina (1991-1992)”, Am. U. J. Int’l L. & Pol’y 11 (1995/96), 767 et seq. Oellers-Frahm, Case Study Bosnia-Herzegovina 185 public of Bosnia and Herzegovina, the CSCE organs stated that aggression against BiH was continuing with gross violations of CSCE commitments and that action was warranted without the consent of the Yugoslav delegation. The CSCE also called for the establishment of full control over all its territory and the armed forces by the legitimate Government of BiH and that the JNA units be either subjected to the authority of the Government of BiH or withdrawn or disarmed. The UN Security Council did, however, not establish a peace-keeping operation, but only condemned the situation in several resolutions. Only Resolution 752 of 15 May 1992 referred to Chapter VII of the Charter, but did also not provide for concrete measures to terminate the conflict. 2. First Peace-Plans The armed conflict in Bosnia was accompanied by several attempts to promote peace by giving a new constitutional structure to the state.9 A first mediation effort led by the EC Conference on Peace in Yugoslavia reached a tentative “statement of Principles for New Constitutional Arrangements for Bosnia and Herzegovina” adopted by the representatives of all the main ethnic groups on 18 March 1992. According to this proposal BiH would be a state divided into three constituent ethnic units of Serbs, Croats and Muslims. The proposal was rejected 10 days later by the Serb leaders in BiH. The failure of this tentative plan was one of the reasons for replacing the EC Conference by the UN/EC cosponsored International Conference on the Former Yugoslavia which continued the efforts of finding a settlement for BiH resulting in the adoption of a new peace plan, the “Vance-Owen-Plan”.10 This plan provided that BiH would be a decentralized state recognizing the three constituent peoples and with most of the governmental functions carried out by its provinces. However, the provinces were not designed to form “contingent national territories”, but were scattered throughout Bosnian territory, only three provinces would bear a predominantly Muslim, Serb or Croat ethnic character. This plan again was rejected by the Bosnian Serbs provoking the break-down of the peace process which could not successfully be taken up again. 9 10 Cf. B. de Rossanet, Peacemaking and Peacekeeping in Yugoslavia, 1996. Cf. Docs S/24795, Annex VII, S/25050, Annexes VI-VII, and S/25479, Annexes I-IV; ILM 31 (1992), 1584 et seq. Max Planck UNYB 9 (2005) 186 3. The Involvement of the UN The involvement of the United Nations in the Bosnian conflict has been characterized as too reluctant and half-hearted.11 The United Nations indeed took some measures to contain the conflict which were, however, too restrained. In the first place mention has to be made of the arms embargo12 imposed upon all parties to the Yugoslav conflict despite the extremely uneven situation in particular of the various sides in BiH. This resolution was followed by an economic embargo against the FRY (Serbia and Montenegro)13 as a reaction to the aggression against BiH. The sanctions were monitored by a UN Sanctions Committee. Finally, by Resolution 787 (1992) and 820 (1993) the Security Council authorized the use of force to ensure compliance with the embargo against the FRY. NATO and Western European Union naval forces implemented the military part of the embargo between November 1992 and October 1995. The Security Council remained, however, reluctant to use direct military power against the parties in the Bosnian conflict. When, by resolution 743 of 21 February 1992 the Security Council established UNRPOFOR (United Nations Protection Force) it limited its mandate to a period of one year. Only some 100 military observers of the UNPROFOR were deployed in Croatia and BiH which later on became entrusted with the task of ensuring the security of the airport in Sarajevo in order to facilitate the delivery of humanitarian aid. The UN Secretary-General rejected a project to place all heavy weapons under UNPROFOR supervision because UNPROFOR had not enough resources and because the conditions for a successful peacekeeping operation did not yet exist in the whole territory of BiH. With a view to protect the humanitarian convoys organized by the United Nations High Commissioner for Refugees (UNHCR) the Security Council authorized, however, the use of UNPROFOR.14 Insufficient personnel and material resources were the reason that UNPROFOR could not effectively implement this mandate. With a view to the wors11 12 13 14 Cf. Oeter, see note 1, 1580; P.C. Szasz, “Peacekeeping in Operation: A Conflict Study of Bosnia”, Cornell Int’l L. J. 28 (1995), 685 et seq.; B. Ashton, “Making Peace Agreements Work: United Nations Experience in the Former Yugoslavia”, Cornell Int’l L. J. 30 (1997), 769 et seq. S/RES/713 (1991) of 25 September 1991. S/RES/757 (1992) of 30 May 1992. S/RES/776 (1992) of 14 September 1992 which was not explicitly based on Chapter VII; cf. in this context Szasz, see note 11. Oellers-Frahm, Case Study Bosnia-Herzegovina 187 ening humanitarian situation the Security Council adopted resolution 819 of 16 April 1993 declaring the town of Srebrenica and its surroundings a “safe area”, and in resolution 824 of 6 May 1993 Sarajevo and other areas were declared “safe areas”, which meant that they should be free from armed attacks and other hostile acts. However, UNPROFOR was not equipped for guaranteeing the safety of these areas and, as is common knowledge, the Bosnian Serbs did not respect the “safe areas”, even after UNPROFOR was authorized to “robust peace-keeping” by Security Council Resolution 836 (1993) of 4 June 1993. This resolution extended the mandate of UNPROFOR, against the resistance of the Secretary-General, and enabled it to deter attacks against safe areas by authorizing it to “take the necessary measures, including the use of force”. In the same resolution the Security Council empowered the Member States, “acting nationally or through regional organizations or arrangements” to take, under the authority of the Security Council, “all necessary measures, through the use of air power, in and around the safe areas” to support UNPROFOR. However, UNPROFOR again remained under-equipped and the events occurring in July 1995 in Srebrenica revealed the collapse of the UNPROFOR mission. In order to prevent a repetition of what occurred in Srebrenica to other safe areas the United Nations and NATO agreed on the authorization of NATO air operations for the protection of safe areas in BiH. The NATO air strike “Deliberate Force” on 30 August 1995 was a response to bombardments of Sarajevo.15 The termination of the air campaign was linked to several conditions, such as withdrawal of Serb heavy weapons from the Sarajevo area, complete free movement for UN forces and personnel and NGOs. On 14 September 1995 a framework agreement was signed by the Bosnian Serb leaders and the air strikes were suspended. In the meantime, Croat and Bosnian forces had regained considerable parcels of territory lost to the Serbs and in early October 1995 they controlled again about 51 per cent of Bosnian territory – which corresponded exactly to the percentage allocated to them in the various peace plans of the time. These facts therefore constituted a sound basis for a peace settlement. 15 Cf. C. Kreß, “Friedenssicherung durch Vereinte Nationen und NATO”, AVR 35 (1997), 213 et seq. 188 Max Planck UNYB 9 (2005) V. The Dayton Peace Agreement (DPA) 1. The Negotiating Process The peace negotiations which had been carried out by international mediators, namely Stoltenberg and Lord Owen for the United Nations and then Bildt for the EU were entrusted in 1994 to a so-called “Contact Group” which was composed of representatives of the United States, Russia, the United Kingdom, France and Germany. The Contact Group maintained the basic principles of the peace plans developed by the International Conference on the Former Yugoslavia, namely the concept of partitioning the Bosnian territory between Serbs, 49 per cent, and Muslims/Croats, 51 per cent, as laid down in a map attributing the territories to the two sides. In a document of 8 September 1995 it was decided that BiH would continue its legal existence within the present borders and that two entities would be created within the Republic: the Bosnian Serb entity with 49 per cent of the territory and the Bosnian-Croat Federation with 51 per cent of the territory. Provisions concerning elections under international control, the adoption of human rights standards, the return of displaced persons and the creation of certain joint institutions were also part of that document. The adoption of the peace treaty was reached at Dayton/Ohio by the governments of BiH, Croatia and Serbia-Montenegro on behalf of the parties concerned and witnessed by delegations from France, Germany, the United Kingdom, Russia and the United States on 21 November 1995 and signed in Paris on 14 December 1995. The Dayton Agreement created a detailed legal structure for the implementation of the “Agreed Basic Principles”. It relied on earlier peace plans, but made them binding and linked the peace-building mechanisms and constitutional arrangements with a detailed international monitoring and enforcement system. The Peace Agreement aimed at providing the population of Bosnia and Herzegovina with the opportunity to rebuild their lives together in peace and prosperity by creating a state that would bring the peoples of Bosnia and Herzegovina together within a social and political framework that would enable the country to take its rightful place in Europe. Although the Dayton Peace Agreement took the shape of a treaty mention has to be made of the rather unusual treaty-making process which did not consist of face-to-face meetings among the parties. The delegations who held widely differing views, were held apart throughout the negotiations with the U.S. negotiators moving from party to Oellers-Frahm, Case Study Bosnia-Herzegovina 189 party with texts prepared by the American team. Also the other sponsoring powers were largely excluded from this process but were briefed by the U.S. delegation. There was thus no opportunity for the directly affected participants, the BiH parties, to explore to what extent they agreed upon the meaning of the texts. Furthermore, the delegation of the Republika Srpska (RS) was not represented by a Bosnian Serb, but by President Milosevic of Serbia, who also represented the FRY and who did not even consult with the Bosnian Serbs. Therefore, although the Peace Agreement took the shape of a treaty, the most characteristic element of a treaty, the consent between the parties, was lacking; the parties had to sign the texts that they had not had any significant role in developing. The DPA and its Annexes entered into force on signature, without ratification which certainly would not have been obtained from the RS, and possibly also not from the Federation BiH,16 because none of the parties to the DPA achieved anything close to what they had been fighting for. Thus, the main success of the DPA was the effective termination of the military confrontation while the implementation of the post-conflict state building process remained unsatisfactory due to the lack of consent between the parties concerned. 2. Contents of the Dayton Peace Agreement The Dayton Peace Agreement17 consists of a “General Framework Agreement for Bosnia and Herzegovina” (GFA) concluded between the new state Bosnia and Herzegovina (BiH), the Republic Croatia and the Federal Republic of Yugoslavia. The GFA constitutes an international treaty which has, however, almost no substantive content and is mostly a structure from which a dozen Annexes are suspended. The twelve Annexes contain the details of the peace settlement and are for the most part in the form of agreements between the Government of Bosnia and Herzegovina and the two “entities” that are to constitute that state: the “Federation of Bosnia and Herzegovina” and the “Republika Srspka”. It contains furthermore a number of side-letters, a “Concluding statement by the Participants of the Bosnia Proximity Peace Talks” and an “Agreement on Initialling”. 16 17 For more details see P.C. Szasz, “The Dayton Accord: The Balkan Peace Agreement”, Cornell Int’l L. J. 30 (1997), 759 et seq. (763 et seq.). Text in ILM 35 (1996), 75 et seq. 190 Max Planck UNYB 9 (2005) The Annexes may be grouped into two categories. Five Annexes set out transitional arrangements by Bosnia and Herzegovina (BiH) and its two entities for largely giving formal approval to NATO and other forces and authorities to carry out particular functions in the country. 18 What is important is that the international forces and organs referred to in these Annexes were not established by the Agreement, but were left to the respective international organizations, in particular the United Nations and NATO. The Annexes thus only expressed the consent of the parties concerning further action of the respective organizations. The NATO Council accordingly established IFOR (Implementation Force-Operation Joint Endeavour) and the UN Security Council acted by several resolutions.19 The second category, the seven remaining Annexes, are basically constitutional. Annex 2 contains an “Agreement on Inter-Entity Boundary Line and Related Issues” and sets out a map of the boundary between the Federation of Bosnia and Herzegovina and the RS, leaving aside, how18 19 These are the following Annexes: Annex 1-A, with regard to cessation of hostilities, withdrawal of armed forces, deployment of a NATO-organized Multinational Implementation Force (IFOR), withdrawal of UNPROFOR and the Establishment of a “Joint Military Commission”. The Annex is accompanied by a Status of Forces Agreement (SOFA) between BiH and NATO, a SOFA between Croatia and NATO, an agreement between the FRY and NATO; Annex 1-B concerns an “Agreement on Regional Stabilization” providing inter alia for “Confidence-and Security-Building Measures” calling in particular for a limitation of defined heavy weapons; Annex 5 concerns the Arbitration on the disputed region of Brcko; Annex 10 contains the centre piece of international involvement, namely the “Agreement on Civilian Implementation” providing for a “High Representative” to monitor the implementation of the peace settlement and to co-ordinate the many civilian organizations performing functions in this connection, and Annex 11 concerning an “Agreement on International Police Task-Force” requesting the establishment of the “IPTF” to assist the parties in “maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards”. S/RES/1021 (1995) and 1022 (1995) of 22 November 1995; S/RES/1026 (1995) of 30 November 1995, S/RES/1031 (1995) of 15 December 1995, 1034 and 1035 of 21 December 1995 and 1037 (1996) of 15 January 1996. Many of these actions were reported and coordinated at the London “Peace Implementation Conference” of 8-9 December 1995, the “Conclusions” of which are reported to the Security Council, Doc. S/1995/1029), text in ILM 35 (1996), 223. Oellers-Frahm, Case Study Bosnia-Herzegovina 191 ever, the area of Brcko where no agreement could be reached and where the drawing of the border was left to binding arbitration provided for in Annex 5.20 Annex 3 is an “Agreement on Elections” providing for the first free elections in Bosnia and Herzegovina as well as in the entities, the Federation of BiH and the RS, within 6-9 months under OSCE supervision. According to this Agreement, the citizens should vote in the place where they were counted in the 1991 census ignoring thus the effects of the ethnic cleansing. Annex 4 contains the “Constitution of Bosnia and Herzegovina”. It provides, according to the principles in all earlier peace plans, for the continuation of the Republic of Bosnia and Herzegovina as a new state Bosnia and Herzegovina consisting of two entities, the Federation Bosnia and Herzegovina, consisting mainly of Bosnians and Croats, and the Republika Srpska. The construct of BiH is highly decentralized with only few powers left to the central institutions and the remainder left to the two entities. All principal governmental organs are designed to have an equal number of Bosnian, Serb and Croat members and to provide for means to prevent the adoption by any groups joining of decisions “destructive of a vital interest” of any of the groups.21 The Constitution was adopted by the leaders of the BH Republic of Bosnia and Herzegovina, the BH Federation and the RS and entered into force upon signature of the General Framework Agreement superseding the old Constitution. It is worth mentioning that the Constitution was not adopted by the people by referendum and that its original version is English. Annex 6 sets out an “Agreement on Human Rights” providing for a Commission on Human Rights consisting of the “Office of the Ombudsman” and the “Human Rights Chamber” performing a task comparable to that of the European Court of Human Rights and composed of international judges.22 Annex 7 establishes an “Agreement on Refugees and Displaced Persons” providing for reversal of the ethnic cleansing and establishing in this context a “Commission for Displaced Persons and Refugees”. 20 21 22 See under VI. 1. For more details see under VI. 2.c. See under VI. 3.b. Max Planck UNYB 9 (2005) 192 Annex 8 and 9 respectively contain an “Agreement on Commission to Preserve National Monuments” and an “Agreement for the Establishment of Bosnia and Herzegovina Public Corporations”. 3. Related Agreements Surrounding both the GFA and its Annexes, but not formally part of them, are numerous arrangements that were negotiated before, during and immediately after Dayton between the sponsors of that conference: the United States and a number of other, mainly European countries. These arrangements relate to: the Implementation Force (IFOR – later replaced by SFOR) established by NATO (since 1 December 2004 replaced by EUFOR);23 the International Police Task Force (IPTF) established by the United Nations;24 the High Representative (HR);25 an Election Commission established by the OSCE; economic assistance etc. Only a few of these arrangements are expressed as treaties; they are rather in the form of decisions of international organs.26 In order to “mobilise the international community behind a new start for the people of BiH” the Dayton negotiations were followed by a Peace Implementation Conference held in London from 8-9 December 1995.27 This Conference established the Peace Implementing Council (PIC) to support the peace process in different ways such as financial assistance, provision of troops for SFOR or specific other operations. The PIC is an ad hoc body composed of 42 states and 13 international agencies and offers political guidance to the High Representative and, since May 2002, to other civilian agencies working in BiH. The PIC further established a Steering Board under the chairmanship of the HR, composed of representatives of Canada, France, Germany, Italy, Japan, the Russian Federation, the United Kingdom, the United States, the Presidency of the EU, the European Commission and the Organization of the Islamic Conference. The Peace Implementation Conference pointed out the goals of the peace agreement, as i.e. the creation of a “climate of stability and security”, “the establishment of new political 23 24 25 26 27 Report of the Secretary-General Pursuant to S/RES/1026 (1995) of 30 November 1995, Doc. S/1995/1031 (1995). S/RES/1035 (1995) of 21 December 1995. S/RES/1031 (1995) of 15 December 1995. Cf. also to Szasz, see note 16. Cf. ILM 35 (1996), 2232 et seq. Oellers-Frahm, Case Study Bosnia-Herzegovina 193 and constitutional arrangements in order to bring the country together within the framework of democracy and the rule of law”, as well as “the protection of human rights and the early return of displaced persons”. The international community “including a wide range of international and regional organizations and agencies” was expected to be “deeply involved in assisting in the implementation of the tasks flowing from the Peace Agreement” in an initial phase – a phase which now has lasted since nearly 10 years! 4. Summary Assessment of the DPA The short overview over the contents of the Dayton Agreement demonstrates the will of the international community on the one side to bring peace to BiH and on the other to reconstruct the new state according to international standards and to remain in control of the implementation of the rebuilding process. In the present context, primarily the state-building aspects of the DPA are of relevance as a possible model for post-conflict state reconstruction. In contrast to other reconstruction initiatives such as Kosovo28 and East Timor29, the general legal basis was not a Security Council Resolution under Chapter VII, but an international treaty concluded between three of the five successor states to the Socialist Federal Republic of Yugoslavia: the Republic of Bosnia and Herzegovina, the FRY and the Republic of Croatia, and was witnessed by the five Member States of the Contact Group and by the representative of the EU. With a view to the actual treaty-making30 it may, however, be questioned whether, in this case, there is a significant difference to an imposed peace-process.31 Furthermore, it has to be stressed that the DPA provided for a comprehensive post-conflict ruling in that it did not only provide for a framework within which the new state had to be developed, but created the state as such including a 28 29 30 31 S/RES/1244 (1999) of 10 June 1999, see also J. Friedrich in this Volume on Kosovo. S/RES/1272 (1999) of 25 October 1999, see also M. Benzing in this Volume on East Timor. See under V. 1.; Szasz, see note 16, 759. Cf. as an example of a successful treaty-based solution L. Keller in this Volume on Cambodia, where the 1991 Paris Agreement constituted a sound treaty basis for the state building process. 194 Max Planck UNYB 9 (2005) constitution which is not conceived as a transitional constitution to be approved at some later time by the people. VI. The State-Building Aspects of the DPA In the context of building a democratic state BiH the most important part of the DPA is Annex 4 containing the constitution of the new state and Annex 10 concerning the international administration, since, after an armed conflict, assistance by the international community is indispensable in order to implement the newly created institutions and to overcome the causes of the conflict, in BiH the ethnic antagonism. Accordingly, the following section will focus on 1.) the general aspects of the constitution, 2.) the management of ethnic aspects in the constitution, 3.) the human rights issues which are closely related to the ethnic problems, and 4.) the international administration of the territory. 1. The General Aspects of the Constitution As already mentioned, the constitution of BiH is a contractual document concluded between, on the one hand, the Republic of Bosnia and Herzegovina, which was declared to continue in the new state “Bosnia and Herzegovina” formed under the constitution, and, on the other hand, its two constituent entities, the Federation Bosnia and Herzegovina and the Republika Srpska (RS). There was no constitutional assembly or other constitutional process involving the people of BiH as the pouvoir constituant, which is only referred to in the preambular paragraph: “Bosniacs, Croats, and Serbs, as the constituent peoples (along with others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows”.32 It has rightly been remarked that this is “a Dayton constitu32 As to the meaning of this paragraph reference is made to the decisions of the Constitutional Court of 28/29 January 2000; 18/19 February 2000, 30 June/1 July 2000 and 18/19 August 2000; text in Official Journal BiH No. 11/2000, 17/2000, 23/2000 and 36/2000 respectively. See also the commentaries to these decisions by C. Stahn, “Die verfassungsrechtliche Pflicht zur Gleichstellung der drei ethnischen Volksgruppen in den bosnischen Teilrepubliken – Neue Hoffnung für das Friedensmodell von Dayton? Zugleich eine Anmerkung zur dritten Teilentscheidung des bosnischen Verfassungs- Oellers-Frahm, Case Study Bosnia-Herzegovina 195 tion, and not a Bosnian constitution”,33 because the constitution is not the outcome of consensus but a document not even voluntarily agreed upon between an internationally recognized and existing state with leaders of the insurrectional groups exercising de facto control over part of the territory of that state. The constitution is a compromise between the wish of the Bosniacs to have a strong central state over which they would have political control and the strong Serb and partly Croat preferences to have a very weak central government.34 The constitution entered into force with the signature, not ratification, of Annex 4 by all its parties. It did not, however, establish full sovereignty for the newly created state. What is of primary significance for the further developments is the fact that the DPA decided for the continuity of the Republic of Bosnia and Herzegovina notwithstanding the fact that separatist ambitions had caused the armed conflict and continued to exist. Although BiH had never been a sovereign state it had constituted one of the Republics of the Yugoslav Federation since 1946 and had explicitly favoured a new federal constitution for Yugoslavia when democratic reforms began in the 1990s after the break-down of the Communist Party following the death of Marshall Tito.35 When BiH declared its independence in 1992, the Bosnian and Croat parts of the territory were integrated in the new state by the federal constitution of 1994, which, by the way, served as model in elaborating the new constitution in Annex 4 of the DPA.36 As already mentioned, on 9 January 1992, the Bosnian Serbs forming the other territorial entity of BiH reacted by proclaiming their independence and adopted on 14 September 33 34 35 36 gerichts vom 1. Juli 2000 im Itzetbegovic-Fall, ZaöRV 60 (2000), 663 et seq.; I. Winkelmann, “Der Bundesstaat Bosnien-Herzegowina”, in: W. Graf Vitzthum/ I. Winkelmann, Bosnien-Herzegowina im Horizont Europas, 2003, 59 et seq., (64 et seq.). F. Ni Aolain, “The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis”, Mich. J. Int’l L. 19 (1997/98), 957 et seq. (971). G. Nystuen, “The Constitution of Bosnia and Herzegovina, state versus Entities”, Revue des Affaires Européennes 7 (1997), 394 et seq. (398). See under II. Cf. for further details on the former and actual constitutions E. Sarcevic, Die Schlußphase in der Verfassungsgebung von Bosnien und Herzegovina, 1996; Stahn, see note 32, 664 et seq. 196 Max Planck UNYB 9 (2005) 1992 the constitution of the “Republik Srpska”.37 The constitutional court of the then Republic of BiH declared the proclamation illegal which resulted in the continuance of the armed conflict until 1995. With a view to these attempts to create a separate Serb state it is of particular interest not only that the DPA opted for the continuation of the “old” state of BiH, but that in forming the state it essentially took account of the results of the armed conflict reinforcing the partition.38 The Constitution accordingly provides for a federal state structure with two territorial “entities”, namely the Federation of BiH consisting of Bosniacs and Croats, and the Republika Srpska, existing within the central state. The central state has only rather restrained competencies, namely, according to Art. III of the constitution, foreign policy, foreign trade, customs and monetary policy, immigration and asylum policy, air traffic control as well as regulatory power concerning inter-entity criminal law enforcement and inter-entity transportation. The entities have a very strong position within the central state constituting de facto (mini-)states. They are competent in all those fields which are not explicitly attributed to the central state (Art. III, paragraph 3 a.)) and dispose of their own legislative, executive and judicial organs. The central state organs are composed with a view to a fair representation not only of the two entities, but of the three constituent peoples Bosniacs, Croats and Serbs (see under VI. 2 c.). The disintegrating effect of the constitution is further determined by the fact that the inhabitants of the entities had even been accorded a special “entity-citizenship” besides their nationality as Bosnians. Both entities are competent with regard to the external relations to neighbouring states (Art. III, paragraph 2a.)). However, the entities are obliged to respect the central constitution and the decisions of the Bosnian Constitutional Court. 37 38 “Declaration on the Proclamation of the Republic of the Serb People of Bosnia and Herzegovina”, Official Gazette of the Serb People of Bosnia and Herzegovina, No. 2/92. W. Graf Vitzthum/ M. Mack, “Multiethnischer Föderalismus in BosnienHerzegowina”, in: W. Graf Vitzthum (Hrsg.), Europäischer Föderalismus, 2000, 81 et seq.; S. Yee, “The New Constitution of Bosnia and Herzegovina”, EJIL 7 (1996), 176 et seq.; cf. also Aolain, see note 33, 968. Oellers-Frahm, Case Study Bosnia-Herzegovina 197 2. The Management of the Ethnic Aspects in the Constitution a. The Entities Although one of the aims of the constitution was the integration of the different ethnic groups the result is rather the territorial separation or segregation of the ethnic groups. This is reflected in the geographical distribution of the territory and the decentralized structure of the constitution. The two entities correspond to a high degree to the ethnic distribution of the population as resulting from the war39 which certainly is an advantage with regard to reaching within a brief period a peaceful coexistence of the ethnic groups. However, with a view to creating a multi-ethnic state this may prove, and in fact did so, to be contraproductive because the ethnic grouping is not “clean” so that minorities within these entities may be in danger of being ostracized or assimilated. This is reflected on the entity level in the fact that within the entities a certain percentage of government offices are reserved not only for representatives of the different ethnic groups, but also for individuals who themselves are of a certain ethnicity. The consequences flowing from such provisions are that certain citizens of the two entities are ineligible for some representative offices based solely on their ethnicity and that thereby an incentive is created for ethnic groups to become citizens of the respective entity. On the central state level the same problem results from the requirement that the composition of the most important central state organs relies not only on the ethnic citizenship flowing from being a citizen of one of the entities but also on the membership in a particular ethnic group. Thus, e.g., an ethnic Serb can only be elected as a delegate to the House of Peoples if he or she is also a citizen of the RS. This leads to a clear under-representation of minorities within the ethnic groups and thus to furthering the segregation effect. As the SubCommission on the Promotion and Protection of Human Rights dealing with effective participation by minorities stressed at its fifth session, citizenship, not membership in a particular ethnic group, constitutes an important condition for full and effective participation; it further rec- 39 In the RS, i.e. the majority of the Serbs is clearly a consequence of the ethnic cleansing, since before the outbreak of the conflict in 1991 only 54.3 per cent Serbs lived in this territory, while at the time of the conclusion of the Dayton Peace Agreement the percentage was 96.8 per cent (cf. Decision no. 5/98 of 1 July 2000, http://www.ustavnisud.ba). 198 Max Planck UNYB 9 (2005) ommended that public institutions should not be based on ethnic or religious criteria.40 As already demonstrated, on the central state level the ethnic territorialism is predetermined to lead to paralyzing decisionmaking because the “nationalist factor” may and did obstruct decisiontaking at the central level.41 The - artificial - ethnically based partition of the state was reflected also in Art. I of the constitutions of both entities. Art. I of the constitution of the RS even proclaimed the right of self-determination of the Serb people which is named as the sole constituent people; while Art. I of the constitution of the Federation BiH refers only to the Bosniacs and Croats as constituent people. Accordingly, the organs of the SR were composed by more than 90 per cent of Serbs; those of the Federation of BiH predominantly by Bosnians and Croats.42 With a view to the constitution of the central state, the Bosnian Constitutional Court declared unconstitutional this practice or, more precisely, Art. I of the constitution of the RS and Art. I of the constitution of the Federation BiH, for the reason that the central constitution to which the constitutions of the entities have to conform, does not allow for a “mononational” entity.43 This decision is of utmost importance because it blocked the privileges accorded to the respective ethnic groups in both entities which could only lead to more separatism instead of coexistence. The reasoning of the constitutional court relying primarily on human rights arguments indicates the only viable means to overcome ethnic conflicts because enhancing the human rights aspect rightly 40 41 42 43 Cf. A. Eide, “The Role of the Sub-Commission on Promotion and Protection of Human Rights and its Working Groups in the Prevention of Conflicts”, International Journal on Minority and Group Rights 8 (2001), 25 et seq., (28). Cf. see under VI. 2 a. and see for more details in this context R.C. Slye, “The Dayton Peace Agreement: Constitutionalism and Ethnicity”, Yale J. Int’l L. 21 (1996), 459 et seq. Before the conflict, the percentage of Serbs was about 17.6 per cent it was reduced to 2 per cent during the conflict. Cf. the decisions of the Constitutional Court of 28/29 January 2000; 18/19 February 2000, 30 June/1 July 2000 and 18/19 August 2000; text in Official Journal BiH No. 11/2000, 17/2000, 23/2000 and 36/2000 respectively. See also the commentaries to these decisions by Stahn, see note 32, Winkelmann, see note 32, 64 et seq. Oellers-Frahm, Case Study Bosnia-Herzegovina 199 puts the accent upon the human being instead upon his membership in an ethnic group.44 b. The Right to Self-Determination This decision of the constitutional court terminated also any discussion as to the right of self-determination of the Serb entity because it explicitly declared unconstitutional the relevant provision in Art. I of the constitution of the RS. This decision was the logical consequence from the view already expressed by the Badinter Commission in its second opinion.45 In November 1991, when secession of the republics forming the Federal Socialist Republic of Yugoslavia was imminent, the Republic of Serbia requested an opinion on the question whether “the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination”. The Commission found, on the basis of international law, that the territorial integrity and political unity of a sovereign state should be maintained if it represents the whole of the people or peoples resident within its territory on a basis of equality and without discrimination.46 As to the Serb request it stated: “that the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights accorded to minorities and ethnic groups under international law and under the provisions of the draft Convention of the Conference on Yugoslavia of 4 November 1991, to which the Republics of Bosnia and Herzegovina and Croatia have undertaken to give effect; and that the Republics must afford the members of those minorities and ethnic groups all the human rights 44 45 46 It has been rightly stated that beginning with this decision the Constitutional Court became the “engine” of the – however slow – integration process; W. Graf Vitzthum, “Staatsaufbau in Südosteuropa, BosnienHerzegowina als Paradigma außengestützter Staatsbildung”, in: J.A. Frowein/ K. Scharioth/ I. Winkelmann/ R. Wolfrum, Verhandeln für den Frieden, Negotiating for Peace, Liber Amicorum Tono Eitel, 2003, 823 et seq. (834). ILM 31 (1992), 1497. Cf. to the international law on self-determination M.P. Scharf, “Earned Sovereignty: Juridical Underpinnings”, Den. J. Int’l. L. & Pol’y 31 (2003), 373 et seq.; cf. also for new approaches concerning self-determination G.J. Simpson, “The Diffusion of Sovereignty: Self-Determination in the PostColonial Age”, Stanford J. Int’l L. 32 (1996), 255 et seq. Max Planck UNYB 9 (2005) 200 and fundamental freedoms recognized in international law, including where appropriate, the right to choose their nationality”. As the constitution adopted within the framework of the DPA maintained the standard provided for in the project of a constitution of November 1991, the decision of the Constitutional Court is fully in accordance with international law: since human rights, in particular those enshrined in the Convention on the Elimination of all Forms of Racial Discrimination, the 1992 European Charter for Regional and Minority Languages and the 1994 Framework Convention for the Protection of National Minorities besides those in the more far reaching UN Covenants of 1966 and the Geneva Conventions of 1949, are applicable and enforceable in BiH, the question of internal or also so-called remedial self-determination, the only possible alternative of self-determination in this case, is not at stake. Although the issue of effective partition of the state Bosnia and Herzegovina was raised again during the thorny way of the state-building process, there was large agreement that the state should be maintained.47 c. The Central State The composition of the central state organs, the Parliamentary Assembly, the Presidency and the Council of Ministers, also reflects the ethnic partition. The Parliament consists of two chambers, the House of Peoples, comprising 15 delegates, two-thirds of which are from the Federation BiH (including five Croats and five Bosniacs) and one-third from the RS (five Serbs) (Art. IV. 1).The House of Representatives comprises 42 members, two-thirds elected from the territory of the Federation BiH, one-third from the territory of the RS (Art. IV. 2). What is important is the fact that in both chambers decisions require a majority of at least one-third of the votes of the delegates or members from the territory of each entity, so that each of the entities can bloc decisions of the other entity by two-thirds of its members (Art. IV. 3 d.)) of the constitution. The Executive consists of the Presidency and the Council of Ministers. These organs also reflect the ethnic composition in that the Presidency consists of three members: one Bosniac and one Croat, directly elected from the territory of the Federation, and one Serb, directly elected from the territory of the RS (Art. V.). The presidency takes its 47 C. Bildt, “Europe and Bosnia, Lessons of the Past and Paths for the Future”, Revue des Affaires Européennes 7 (1997), 450 et seq. (454). Oellers-Frahm, Case Study Bosnia-Herzegovina 201 decisions in principle by consent, only in exceptional cases by majority (Art. V. 2 c.)). In case of majority decisions the dissenting member of the Presidency has a right of veto if vital interests of the entity from the territory of which he was elected, are at stake; if the veto is confirmed within ten days by a two-thirds vote of the representatives of said ethnic group, not the entity representatives, the decision does not take effect. The Presidency nominates the Chair of the Council of Ministers who then nominates a Foreign Minister, a Minister for Foreign Trade and other Ministers with the approval of the House of Representatives. Not more than two-thirds of the ministers may be from the Federation BiH. The Chair also nominates Deputy Ministers, who shall not be of the same constituent people as the Minister (Art. V. 4 b.)).48 This complicated structure and in particular the requirement of taking decisions by consent implying the possibility of both entities to bloc the decision-making was the reason for the failure of implementing the DPA. d. The Constitutional Court Special mention has to be made of the Constitutional Court which is the sole court at central level; the judiciary being run on the entity level, which means that there are two different court systems and different legislation from entity to entity in many areas. The Constitutional Court has far-reaching powers laid down in Art. VI of the constitution, namely to decide disputes between the entities, central institutions and entities or between institutions at the central level, as well as questions of constitutionality or compatibility with laws of the central state, the European Convention on Human Rights or general principles of international law or any law in BiH. Furthermore it may function as a court of appeal over issues “under this Constitution arising out of a judgment of any other court”. Questions concerning the protection of human rights were at first only a subsidiary part of the competencies of the 48 The difficulties in nominating ministers is demonstrated in an exemplary manner with regard to the minister of Defence of the central state: only in March 2004 was it possible to nominate a Minister of Defence for the central state, which could be realized only with the active involvement of the HR Ashdown. Since the defence of a state is an original power of the central state, the fact, that nearly ten years after the creation of the state BiH only the entities disposed over an army and a minister for Defence is a revealing sign for the separatist move of the entities. Cf. M. Martens, “Normalität im Dreivölkerstaat”, Frankfurter Allgemeine Zeitung of 7 August 2004, 8. Max Planck UNYB 9 (2005) 202 Constitutional Court and were entrusted to a special body instituted by Annex 6 of the DPA: the Human Rights Chamber.49 Under the aspect of international involvement it has to be mentioned that out of the nine members of the Constitutional Court three have to be appointed by the President of the European Court of Human Rights “after consultation with the Presidency” and they “shall not be citizens of Bosnia and Herzegovina or of any neighbouring state”. From the six national judges four are selected by the House of Representatives of the Federation and two by the Assembly of the RS. No quorum is required for taking a decision so that the simple majority of five votes is sufficient. Thereby it is guaranteed that the international judges cannot alone decide a case, but that, with the consent of judges of one of the entities, they have the majority with regard to the judges of the other entity, this is not without criticism. Although for the first time in the reconstruction process, this provision may prove necessary, the fact that it is part of the definite constitution is rather unusual. Only by an amendment of the constitution can the involvement of international judges in the Constitutional Court be abolished, since the provision in Art. VI. 1 d.) of the constitution merely provides that a different method of selection of the three judges selected by the President of the European Court of Justice may be introduced by ordinary law of Parliament. The Constitutional Court is thus in a position to play a very important role in building the new state Bosnia and Herzegovina because it can interpret the often vague or even obscure provisions of the Constitution and develop them through practice. On the other hand, it is the point of reference for the two court systems of the entities and can support the harmonization of the two legal systems.50 Meanwhile it can be stated that it has in fact played a very important role in the statebuilding process.51 Likewise significant was the role of the Constitutional Court with regard to its competence to review acts of the “international organs”, in particular the High Representative and the Human Rights Chamber. Since the Constitutional Court as well as the High Representative and the Human Rights Chamber were established by the same international agreement, the DPA, without determining their relationship within the constitutional framework, it was for the Constitutional Court to take position with regard to several questions in this context. As it is not 49 50 51 See under VI. 3. Nystuen, see note 34, 406. See under VI. 2. b. Oellers-Frahm, Case Study Bosnia-Herzegovina 203 possible to treat these decisions in detail,52 it may, however, be stated that, in general, the relevant Constitutional Court’s jurisprudence struck the right balance between the international mandate of such organs and the constitutional implications of their acts.53 Nevertheless, a more precise regulation in the DPA would have been helpful in particular with regard to the accountability of the international actors. e. Consequences Flowing from the Ethnic Partition As already mentioned, not surprisingly this system of ethnic partition led to obstructionism in the national organs resulting consequently in a more extensive involvement and dependency of the international actors, in particular the HR.54 The Constitution as derived from the DPA must thus be regarded as one of, or even the main reason for, the difficulties met in building the state BiH. In contrast to the history of BiH which always had to cope with its ethnic diversities, the Dayton Constitution for the first time created a link between an ethnic group and a specific territory, establishing thus what has been called “ethno-territorialism”55 and what seems to be a rather insurmountable obstacle for the nationbuilding process. Furthermore, this linkage corresponds to the results of the ethnic cleansing carried out during the armed conflict and is thus artificial and legally questionable in comparison with the former state structure. Therefore, BiH as established by the DPA has been said to be a “fake” state, not a decentralized state,56 because this partition proved to cement ethnic antagonism rather than to enhance unity.57 Moreover, this political construct led to a convoluted institutional structure: in May 2002, BiH had 1200 judges and prosecutors, 760 legislators, 180 ministers, four governments and three armies which clearly could only be contra-productive for the unification process.58 With regard to these 52 53 54 55 56 57 58 Cf. under VI. 4. d. Cf. for details C. Steiner/ N. Ademovic, “Kompetenzstreitigkeiten im Gefüge von Dayton”, in: Vitzthum/ Winkelmann, see note 32, 109 et seq. Cf. Winkelmann, see note 32, 59 et seq. Cf. M. Ducasse-Rogier, “Recovering from Dayton: From ‘peace-building’ to ‘state-building’ in Bosnia and Herzegovina”, Helsinki Monitor 15 (2004), 76 et seq. (78). Ibid. A. Borden/ R. Caplan, “The former Yugoslavia: the war and the peace process”, SIPRI Yearbook 1996, 203 et seq. (229). Cf. inaugural speech of HR Ashdown, 27 March 2002, text on <www.ohr.int>, section ‘Speeches by OHR principals’. Max Planck UNYB 9 (2005) 204 deficiencies inherent in the Dayton Constitution for BiH it is evident that the state-building process necessarily had to be shifted to the international actors, thus strengthening the international dependency in the state-building process.59 3. Human Rights Issues a. General Remarks As already mentioned, human rights take a particular place in the DPA because it was clear that human rights were not only part, but even a precondition for a durable peace after a conflict in which human rights had been grossly violated.60 It is therefore only consequent that the constitution comprises an extensive catalogue of human rights providing even that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in BiH, and shall have priority over all other law, including the Constitution. Furthermore, Annex I to the Constitution lists 15 international human rights instruments which are to be applied directly in BiH. The human rights listed in Art. II of the Constitution are moreover “untouchable” (Ewigkeitsgarantie) in that amendments of the Constitution may not “eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph”. The implementation and protection of human rights is guaranteed through the Constitutional Court (Art. VI. paragraph 3 c.) and the Constitutional Courts of the two entities. In addition to the organs established by the Constitution of the central state and the entities, the DPA institutes several other organs concerned with the protection and monitoring of human rights, as e.g. the Commission for Displaced Persons and Refugees61 which is empowered to take binding decisions on restoring property to refugees and displaced persons; the UN Commission on Human Rights, the OSCE, the UN High Commissioner for Human Rights, and other intergovernmental or regional human rights missions or organizations;62 in a wider sense, also the International Criminal Tribunal for the Former 59 60 61 62 Under VI. 4. See in this context also A. Seibert-Fohr, in this Volume. Annex 7 to the DPA. Annex 6 on Human Rights, Art. XIII. Oellers-Frahm, Case Study Bosnia-Herzegovina 205 Yugoslavia although instituted by the Security Council, not the DPA, may be mentioned in this context. The most important human rights organ is, or more precisely was because it is meanwhile functus officio - , the Commission on Human Rights (see below) which is unprecedented in former post-conflict state building processes and may be understood as confirming the fact that external standards and in particular external actors were required in order to guarantee the protection of human rights in post-war Bosnia as long as faith in the domestic courts was lacking. b. The Commission on Human Rights The Commission on Human Rights is established by the Republic of BiH and the Federation of BiH and the RS according to Annex 6 to the DPA. It consists of an Ombudsman and the Human Rights Chamber. The Ombudsman may not be a citizen of BiH or any neighbouring state; he/she may receive allegations of violations of human rights by any party to the agreement, any individual, group or non-governmental organization but may investigate also on his/her own initiative. He/she, however, cannot take binding decisions, but may bring a case to the Human Rights Chamber. The Human Rights Chamber is composed of 14 members, eight appointed by the Committee of Ministers of the Council of Europe, four by the Federation of BiH and two by the RS. It takes binding decisions on violations of human rights by the organs of the central state BiH, the Federation BiH or the RS.63 Its term of office was originally fixed to 63 For the practice of these organs cf. Human Rights Chamber for Bosnia and Herzegovina/ Digest, Decisions on Admissibility and Merits: 1996-2002, 2004; M. Nowak, “Die Menschenrechtsbestimmungen des Abkommens von Dayton in der Praxis”, in: W. Benedek/ O. König/ C. Promitzer (eds), Menschenrechte in Bosnien und Herzegowina: Wissenschaft und Praxis, 1999, 29 et seq.; H. Alefsen, “Menschenrechtsschutz in Bosnien und Herzegowina: Aus der Sicht der internationalen Gemeinschaft”, ibid., 51 et seq.; P.C. Szasz, “The Protection of Human Rights through the Dayton/Paris Peace Agreement on Bosnia”, AJIL 90 (1996), 301 et seq.; R. Aybay, “A New Institution in the Field: The Human Rights Chamber of Bosnia and Herzegovina”, NQHR 15 (1997), 529 et seq.; K. Oellers-Frahm, “Die Rolle internationaler Gerichte im Friedensprozeß in Bosnien und Herzegowina nach dem Abkommen von Dayton”, in: V. Götz/ P. Selmer/ R. Wolfrum (eds), Liber amicorum Günther Jaenicke – Zum 85. Geburtstag, 1998, 263 et seq. Max Planck UNYB 9 (2005) 206 five years after which period its tasks were to be transferred to the institutions of BiH, unless the parties otherwise agree. The main goal was, however, to prepare BiH for access to the ECHR and the Council of Europe which was finally achieved on 24 April 2002 when BiH became a Member State of the Council of Europe. At this time, however, the Human Rights Chamber was not fully abolished, but followed by a Human Rights Commission within the Constitutional Court of BiH according to an Agreement between the parties of 22 and 25 September 2003. This Commission was established only for deciding cases brought before 31 December 2003 and its term of office ended on 31 December 2004. New applications have to be brought before the Constitutional Court and only in case of a negative decision the European Court on Human Rights may be seized according to the provisions governing its functioning. The abolishment of the Human Rights Chamber may thus be interpreted as a success in that the human rights protection in BiH no longer needs special means but may be left to the national courts. 4. The International Administration a. The Office of the High Representative The most important aspect in the practical reconstruction process under the DPA are the provisions concerning the administration of the territory by organs of the international community. With regard to former systems of international administration known from the League of Nations as mandates system and as trusteeships under the United Nations after World War II,64 the administration of BiH constitutes a new category of international administration. With the consent of the leaders of the parties concerned, namely the Republic of BiH, the Republic of Croatia, the Federal Republic of Yugoslavia, the Federation of BiH and the RS, a High Representative was to be appointed in order to implement “the civilian aspects of the peace settlement”.65 His functions were only roughly circumscribed in Annex 10 including the very far-reaching provision that he would be “the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement”.66 The designation of the High Representative was ef64 65 66 Cf. N. Matz, in this Volume. Annex 10 to the Dayton Peace Agreement. Annex 10, Art. V. Oellers-Frahm, Case Study Bosnia-Herzegovina 207 fected in the framework of the Peace Implementation Conference; he was appointed according to Annex 10 of the Dayton Peace Agreement by Security Council Resolution 1031 of 15 December 1995. However, he is not a UN organ. In this Resolution, the Security Council merely endorsed the mandate of the HR as laid down in Annex 10, namely that he “will monitor the implementation of the Peace Agreement and mobilize and, as appropriate, give guidance to, and coordinate the activities of, the civilian organizations and agencies involved,” without circumscribing in more detail the extent of his competencies. The Resolution furthermore simply confirms that the HR is the final authority in theatre regarding the interpretation of Annex 10 (Art. V of Annex 10). The Security Council thus did not add nor specify the tasks or competencies of the HR although the wording of Annex 10 would have allowed it to do so. Annex 10, Art. I paragraph 2, not only provides that the HR be “appointed consistent with relevant United Nations Security Council resolutions”, but moreover that he will carry out the tasks set out in Annex 10 “as entrusted by a U.N. Security Council resolution”. The Security Council thus missed the opportunity to clearly define the mandate and the competencies of the HR which seems rather problematic with a view to the rule of law. Whenever powers of administration or legislation are transferred upon an international body this should be done in clear terms in a resolution of the Security Council, as was the case, e.g. for East Timor and Kosovo.67 It has, however, to be borne in mind that in the latter cases the reconstruction of the states was completely in the hands of the United Nations while the reconstruction in BiH was based on the Dayton Peace Agreement. Nevertheless, as the appointment of the HR was entrusted to the Security Council it should have taken care to base his tasks on clearly defined competencies in order to give legitimacy to the action of the HR. The International Police Task Force (IPTF) envisaged in Annex 11 was conceived to assist the parties in carrying out their responsibilities for “maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards”. It is worth mentioning that the four High Representatives nominated until now were all Europeans: Carl Bildt, Carlos Westendorp, Wolfgang Petritsch and now Paddy Ashdown as hopefully the last one in this office. This choice 67 Cf. J. Friedrich on Kosovo, and M. Benzing on East Timor, in this Volume. See also J.A. Frowein, “Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen’, in: H.W. Arndt/ F.L. Kniemeyer/ D. Kugelmann/ W. Meng/ M.Schweitzer Völkerrecht und deutsches Recht, 2001, 43 et seq. Max Planck UNYB 9 (2005) 208 clearly underlines the EU-perspective of the state-building process finally ending in participation in the EU, a strong if not decisive incentive for implementing the necessary reforms.68 b. The Powers of the HR As originally conceived, the main function of the HR was merely the supervision of co-operation and co-ordination in the implementation of the state-building process by the national organs. However, when the paralysis of the national institutions led to an impasse in the peacebuilding process, the HR interfered by extensive legislative and executive action, and thus became the most important actor for the functioning of the state. As the legal basis for his far-reaching action, only Art. V of Annex 10 can be mentioned which institutes the HR as the “Final Authority” in interpreting his own functions.69 The interpretation that he gave to the powers flowing from his mandate was in fact very comprehensive and included legislation, - bypassing thus the elected Parliament -, going so far as to declare unconstitutional a law adopted by the Parliamentary Assembly,70 as well as administrative decisions, including even removal of public officials.71 This interpretation was later endorsed by the Peace Implementation Council (PIC) Conference in Bonn in 1997.72 The Council explicitly approved such actions underlin- 68 69 70 71 72 Cf. in this sense B. Hombach, “Zukunftsstrategie Stabilitätspakt”, Internationale Politik 11 (2000), 36 et seq.; Bildt, see note 47. Ibid. Decision of 7 August 2000 Amending the Law on Filling a Vacant Position of the Member of the Presidency of BiH, <http://www.ohr.int>. See for details <http://www.ohr.int.>; cf. also Frankfurter Allgemeine Zeitung of 7 August 2004, see note 48, reporting that in spring 2004 the HR Ashdown removed 59 members of the political leadership of the RS because of their lacking co-operation with the ICTY. In March 2005, HR Ashdown even dismissed the Bosnian member of the Presidency of the central state, Dragan Čovič, Frankfurter Allgemeine Zeitung of 30 March 2004, 3, reviving the discussion and critics on the competencies of the HR. Cf. Doc. S/1997/979 of 16 December 1997. On the basis of the Bonn decisions, respectively “Bonn powers”, the newly appointed HR Westendorp in 1998 set into force temporarily a whole series of draft laws, such as the law on citizenship, the customs tariffs schedule, the law on foreign investment, the laws on the flag and on the coat of arms of BiH, the laws on privatization of banks and enterprises and on telecommunications, the common currency, the uniform licence plates system and later also the common Oellers-Frahm, Case Study Bosnia-Herzegovina 209 ing once more that the HR was the final authority to interpret Annex 10. The Security Council supported this attitude in Resolution 1144 of 19 December 1997 and again in Resolution 1256 of 3 August 1999 going thus much further than in an earlier resolution where it had stated that the HR could, in case of dispute, “give his interpretation and make his recommendations, including to the authorities of BiH or its entities, and make them known publicly”.73 This terminology seems rather at odds with the action of the HR concerning legislation or removal of public officials. However, on the basis of the PIC Conference in Bonn, which “legalized” such powers of the HR, the HR adopted quite a series of laws and other acts which could not pass Parliament or be adopted by the national organs because of their ethnical composition respectively obstructionism.74 As a consequence of such local obstructionism the international actors had to replace more and more the national authorities increasing thereby the dependency of the statebuilding process upon international involvement instead of transferring action from the international actors to national authorities in order to establish full sovereignty of the state. c. Change of Strategy Thus, the process of state-building lay predominantly with the HR and his office so that in fact it was up to him to find ways out of this dilemma which was a result of the lack of sound and democratic state structures provided for in the DPA. Although the DPA was not amended nor put into question, the main obstacles deriving from the ethnically based partition of the state were overcome by a change of approach from 1999 onwards. The new strategy aimed at building first a functioning state, i.e. reinforcing integration and shifting control from the international actors to the state level. This strategy progressed only slowly but marked the right way in particular by recruiting Bosnian nationals within the international organizations and by making more transparent for the people the goals on the agenda of the HR.75 In 2002 73 74 75 driving licence. The removal of officials trying to obstruct the peace process took place in particular in the context of creating conditions for return of displaced persons. S/RES/1088 (1996) of 12 December 1996. For more details see Stahn, see note 32, 663 et seq. (669, 670). In 2002 two documents were issued in this context: one document on ‘Jobs and Justice’ (availabe at <www.ohr.int>) and one on the ‘OHR Mission Implementation Plan’ (available at <www.ohr.int/print/?content_id=29145>). Max Planck UNYB 9 (2005) 210 the PIC furthermore established a ‘Board of Principals’ reinforcing the HR’s role in co-ordinating the often overlapping efforts and responsibilities of the international actors in place, namely the Office of the High Representative (OHR), SFOR, OSCE, European Police Mission, UNHCR and the EU.76 This new move in overcoming the deficiencies of the DPA was furthermore enhanced by a strong incentive to accelerate the reformation of the state in order to join the NATO Partnership for Peace and prepare for membership in the EU.77 d. Accountability of the HR Having stated that the HR became the central player in implementing the reconstruction of BiH and that he was constrained to interpret his functions extensively in order to replace the non-functioning national authorities, the question which finally has to be addressed is whether there are limits to his powers and where they lie and whether and to whom he would be accountable. As already mentioned the source of the authority of the HR is essentially contractual since it derives from the Dayton Agreement and is confirmed by the PIC, respectively its Steering Board and only finally agreed to by the Security Council. The HR is not an organ of the United Nations78 and provisions concerning control of his acts or responsibility are lacking in the DPA. He seems, at most, to be responsible to the Steering Board of the PIC which lacks any provisions going into more detail.79 As has been demonstrated, the PIC, and also the Security Council, confined itself to endorsing the interpretation given to the mandate by the HR himself as the “final authority in theatre”. Thus, the lack of provisions on accountability of the HR reflects to a certain degree the lack of a precise basis for his powers, 76 77 78 79 CF. Vitzthum, see note 44, 839. Ibid., 835. According to the conclusions of the Peace Implementation Conference (PIC) held on 8 and 9 December 1995, the HR is the chairman of the Steering Board of the PIC and is funded by the budget of the PIC., cf. text of the conclusions in ILM 35 (1996), 225 et seq., (229). Cf. in this context R. Wilde, “Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor”, ILSA Journal of International and Comparative Law 7 (2001), 455 et seq., who monitors the lack of accountability of international actors in the process of after-conflict state-building; also R. Wilde, “The Complex Role of the Legal Adviser when International Organizations Administer Territory”, Proceedings of the ASIL, 95th Meeting, 2001, 251 et seq. (254). Oellers-Frahm, Case Study Bosnia-Herzegovina 211 i.e. the legitimacy of his action. As post-conflict state-building is conceived as corresponding to the rule of law and aimed at creating democratic state structures also the organ or organs themselves accordingly empowered have to be submitted to the rule of law in order to be credible. In this context there should be provisions on control over their acts and on consequences of ultra vires action as confidencebuilding measures for the people of the state concerned. If, as in the case of BiH, the international administration powers are “open ended” the necessary acceptance is difficult to achieve which may obstruct the reconstruction process.80 Clearly defined competencies and consequences or sanctions for exceeding these competencies are therefore indispensable requirements for the involvement of international actors in state reconstruction. Not only the international instruments, but also the Constitution of BiH did not provide for review of HR decisions which is, in principle, not surprising because the control of the international administrator who has a particular status and derives his powers from the DPA would in any case not belong to the original powers of a Constitutional Court. However, in a decision of 3 November 2000,81 the Constitutional Court took a more differentiated position and distinguished between the acts that he took as an international authority and those taken as or in the place of a national organ of BiH. It rightly found that it had no power to review acts of the HR with regard to the DPA, Annex 10; it stated, however, that it was competent to examine whether the acts of the HR were in conformity with the constitution of BiH. As in the case under review, the HR had acted essentially as a substitute to national institutions of BiH, in particular the legislator, and as, consequently the act concerned had the nature of a national law of BiH, the Constitutional Court found itself competent. The Court considered that the relevant factor was the content of the law, not its author, and that the law related to a field “falling within the legislative competence of the Parliamentary Assembly according to Article IV.4 (a) of the Constitution” and was thus susceptible to review by the Court. Although such reasoning is not above criticism, it demonstrates at least, that the Constitutional Court, 80 81 Cf. On this issue more in detail R. Utz in this Volume who refers to the concept of ressentiment as a strong impediment to the nation building process. Constitutional Court of Bosnia and Herzegovina, Decision 9/00 of 3 November 2000, homepage of the constitutional court <http://www. ustavnisud.ba>; and ZaöRV 61 (2001), 173 et seq. 212 Max Planck UNYB 9 (2005) guardian of the Constitution of BiH, wanted to put some limits to the uncontrolled extension of powers by the HR. As the mandate of the HR is defined as assisting the national organs in implementing the peace process and, lacking other means of control over the powers of the HR, the decision of the Constitutional Court clearly constitutes a welcome reminder of the limits of the role of the HR.82 VII. Accountability for Acts Committed During the Armed Conflict: The ICTY The DPA was only concerned with peace-making and the reconstruction of the state of BiH, not with questions of accountability for crimes committed during the conflict which was already addressed and resolved in 1993 and only referred to in the DPA. In contrast to numerous former armed conflicts and wars there had been a feeling that the perpetrators of such crimes should not pass unpunished. Criminal accountability would on the one hand serve as deterrence for future conflicts in that punishment would no longer be a rather hypothetical perspective, but would give at least some sort of satisfaction to those having suffered from such crimes.83 The question of whether to establish in such situation a truth commission or a criminal tribunal resulted, for the conflict in the former Yugoslavia, in the creation of an ad hoc international criminal tribunal which, after the military tribunals of Nuremberg and the Far East was the first international criminal tribunal to punish crimes committed during an armed conflict. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by a Security Council Resolution taken under Chapter VII of the Charter,84 not by a treaty as was the case for the Nuremberg Military Tribu- 82 83 84 Cf. also C. Stahn, “International Territorial Administration in the Former Yugoslavia: Origins, Developments and Challenges ahead”, ZaöRV 61 (2001), 107 et seq., (166 et seq.); critical with regard to the responsibility also Vitzthum, see note 44, 828 and 842. P.A. Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” AJIL 95 (2001), 7 et seq. S/RES/827 (1993) of 25 May 1993. From the abundant bibliography on the ICTY see in particular V. Morris/ M.P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, 1993, and A. Cassese, “Yugoslavia: International Criminal Tribunal for the Former Oellers-Frahm, Case Study Bosnia-Herzegovina 213 nal. The ICTY sanctions individuals having committed grave breaches of humanitarian international law and breaches of customs and laws of war as well as genocide and crimes against humanity. In contrast to the newly created International Criminal Court the ICTY has priority with regard to national criminal jurisdiction which must be welcomed as an important guarantee for fair and equal proceedings. Although, thus, the domestic jurisdiction to account for war crimes is in a relationship of subordination to the ICTY, it was never envisaged in creating the ICTY that it would prosecute all persons responsible for committing war crimes in the former Yugoslavia. Thus, there is a two-tier system of war crimes prosecution where the primary responsibility remains with the national courts. On the other hand it has to be regretted that the indispensable co-operation with the ICTY is still lacking, or at least is unsatisfactory, so that several of the most important criminals are not transferred to the Tribunal which cannot hold proceedings in absentia. The lack of co-operation of the states seceded from the former Yugoslavia is a strong obstacle which can only partly be overcome by international pressure although some success may be reported such as e.g. the transfer of Slobodan Milosevic in spring 2001. This is not the place to go into details of the activity of the ICTY; in this context it is, however, important to stress that the creation of an international criminal tribunal has to be considered as a most significant condition for the peace-making and reconstruction process after an armed conflict.85 The antagonism between different ethnic groups may better be decreased if crimes committed on both sides do not go unpunished and if the criminal prosecution is guaranteed by an independent international organ, for as long as new institutions composed of unsuspected members are not in place. Under these auspices the special criminal tribunal for Iraq which only provides for voluntary involvement of international actors seems rather problematic.86 85 86 Yugoslavia”, in: R. Bernhardt (ed.), EPIL 4 (2000), 1608 et seq. with further bibliographical indications. Cf. R. Wolfrum in this Volume. For the text of the Statute see <http://www.cpa-iraq.org/human_rights/ Statute.htm>. Max Planck UNYB 9 (2005) 214 VIII. Excursus: Two Special, but Characteristic Issues: Brcko and Mostar As already mentioned several times, the main reasons for the difficulties in reconstructing BiH is the persistence, through the DPA enhanced, of ethnic separation. Two examples which have raised particular international attention may be cited because they demonstrate in an exemplary manner the consequences of the strong ethnic separation: the first one is the case of Brcko which – already in the phase of elaborating the DPA – demonstrated unambiguously that the ethno-territorial approach would rather create than solve ethnic problems. The second is the case of Mostar which exemplifies within a rather small city the strong and not reconcilable ethnic separation as practised throughout the state. 1. The Case of Brcko As already mentioned87 the inter-entity boundary which was determined in Annex 2 to the DPA remained disputed in the area of Brcko. This area is at the intersection between both the parts of RS and the main part of the Federation BiH and additional Federation territory. If attributed to the RS, the area of Brcko would constitute the link between the northern and the southern part of the RS, but would then leave the Federation BiH without direct connection to its eastern neighbours; if attributed to the Federation BiH it would separate the territory of the RS into two parts unconnected between each other. The main problem was that the boundary, wherever it would be drawn, would have the effect of an inter-state, rather than an inter-entity boundary separating two parts of one and the same state. This demonstrates that the parties had no faith whatsoever in the Constitution they had agreed to sign, for the Constitution laid down freedom of movement across the inter-entity-boundary line for persons, goods, services and capital. If the parties had thought that this would become reality, the Brcko issue would not have been so important because anyone would have had the right to enter the region. As no consent could be found for this problem in the DPA, which was even threatened to fail completely for this reason,88 the drawing of the boundary line in the 87 88 Under V. 2. Nystuen, see note 34. Oellers-Frahm, Case Study Bosnia-Herzegovina 215 area of Brcko was left to binding arbitration.89 The arbitration process reflects in an impressive manner the lack of any basis for peaceful coexistence between the two entities which conceived their entity rather as a separate state than as part of the central state BiH. Without going into details90 it may be stated that the arbitral tribunal which had the task to draw a borderline between the entities in the area of Brcko was not able to fulfil this mandate. Instead it – more exactly its President alone, since the members of the tribunal appointed for the Federation of BiH and for the RS abstained from voting – decided that the area would be placed under international administration until a final solution could be found. In 2000 a new Statute for District Government was enacted91 scheduling new elections and creating an interim regime. This “transitional” solution, which, by the way, was in fact a wise political settlement of the dispute, although not at all what is known as an arbitral decision, exists until today and it is not foreseeable when it could be terminated. This example demonstrates clearly the enormous difficulties in rebuilding a state on an ethno-territorial basis which strengthens the nationalist instead of the common perspective. Only under these circumstances can free circulation beyond inter-entity boundaries pose more severe problems than free circulation beyond inter-state boundaries. Conceiving a territorial entity not as part of a state, but as a separate state, made the case of Brcko so problematic and the attribution of that part of the territory a vital question for each of the entities. 89 90 91 DPA, Annex 2, Article V and Annex 5. For the arbitral awards see Doc. S/1997/126 in ILM 36 (1997), 396, and Final Award of 5 March 1999, at <http://www.ohr.int/docu/d991315c.htm>; cf. Oellers-Frahm, see note 63; M. Baros, “The Arbitral Tribunal’s Award for the Dispute over the Inter-entity Boundary in the Brcko Area”, Journal of Armed Conflict Law 3 (1998), 233 et seq.; P.C. Farrand, “Lessons from Brcko”, Emory International Law Review 15 (2001), 529 et seq.; M.G. Karnavas, “Creating the Legal Framework of the Brcko District of Bosnia and Herzegovina, a model for the region and other postconflict countries”, AJIL 97 (2003), 111 et seq.; C. Schreuer, “The Brcko Final Award of 5 March 1999”, LJIL 12 (1999), 575 et seq. Statute of the Brcko District of Bosnia and Herzegovina of 7 December 1999, in: ILM 39 (2000), 879; cf. R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, AJIL 95 (2001), 583 et seq. (595). Max Planck UNYB 9 (2005) 216 2. The Case of Mostar A second example demonstrating the deep separation between and obstruction of the ethnic groups in implementing the DPA is the one of Mostar. When in July 2004 the reconstruction of the historic bridge of Mostar was inaugurated, the political situation of the city was once more recalled to the public. The Dayton Agreement on Implementing the Federation of BiH contained an attachment on agreed principles for the interim statute for the city of Mostar concluded between the Mayors of East and of West Mostar representing respectively the Muslim and the Croat parties and the EU Administrator of Mostar who had been appointed pursuant to a “Memorandum of Understanding on the European Union Administration of Mostar” concluded between the Federation BiH and the EU on 6 July 1994 for a two-year period.92 However, the EU administrators completely failed to merge the Muslim and Croat parts of the divided city into an operational municipal administration. Instead, there existed parallel institutions of the Croat and the Muslim part which even practised a separate payments and pensions system within the same city. Also the return of displaced Serbs did not function, as was the case in other parts of the country. If displaced persons regained possession of their former houses they preferred to sell them instead of returning and stayed in territories in which their own ethnic people constituted the majority. All efforts to prepare a plan for reunification of the city to be adopted by all parts concerned failed: the two commissions established by the HR Ashdown could not reach agreement between the parties. In line with former action of the HR, Ashdown then acted by decree: in January 2004 he abolished the six municipalities, three Croat, three Bosniac, and adopted a new statute for the city.93 According to this statute, Mostar had to reach a uniform administration and to establish one Municipal Council until October 2004. The interests of the minority ethnic group, the Bosniacs, are protected in that most of the decisions in the Municipal Council have to be taken by a two-thirds majority, such as e.g. the budget. However, it is completely open whether that “decreed” unification will work, for unification is much more difficult to (re-)construct than the ancient bridge 92 93 Cf. ILM 35 (1996), 76/77et seq. and 170 et seq. for the Agreement and Interim Statute for the City of Mostar, cf. also Wilde, see note 91, 583 et seq. (590); F. Pagani, “L’administraton de Mostar par l’Union Européenne”, AFDI 42 (1996), 234 et seq. Text of the Statute <www.ohr.int/decisions/mo-hncantdec/default.asp? content_id=31707>. Oellers-Frahm, Case Study Bosnia-Herzegovina 217 which stands for unification as external symbol and waiting for completion of the internal peaceful co-existence between the ethnic groups.94 IX. Model Character of the DPA for Other Cases, in particular Iraq? Nearly ten years after the DPA the new state BiH still strongly depends on international actors in order to maintain peace and prevent ethnic conflicts. The country remains split up ethnically and only a small number of refugees and displaced persons returned to their former living places. The economy is stagnating, co-operation with i.e. the ad hoc criminal tribunal is unsatisfactory and the judiciary and executive, in particular the police forces, are not functioning as they should. Are these shortcomings imputable to the DPA or are they characteristic for post-conflict state-building?95 The answer to this question it certainly not a simple yes or no. The DPA has advantages but also disadvantages for rebuilding a state. It may be considered as an advantage of the DPA that it constitutes a sort of a peace treaty. In contrast to other conflicts the post-conflict process was not imposed unilaterally by the international community acting through the Security Council, as e.g. in the cases of Kosovo and East-Timor,96 but was agreed upon by representatives of the international community and the leaders of the parties to the conflict albeit in a problematic way.97 Although peace by agreement between the conflicting parties may be more promising than peace imposed,98 concern may be expressed as to the persons involved in the elaboration of the Agreement, some of whom were war criminals and were later prosecuted by the ICTY. Even if this did not influence the contents of the DPA, it raises concern as to its legitimacy so that in such situations a peace settlement imposed by the international community may be preferable as long as adequate national partners are lacking. This is not to say that conflict leaders should not be involved in reaching a peace 94 95 96 97 98 M. Martens, “Versöhnung durch Dekret”, Frankfurter Allgemeine Zeitung of 23 July 2004, 10. F.O. Hampson, “Can Peacebuilding Work?”, Cornell Int’l L. J. 30 (1997), 701 et seq. Cf. Frowein, see note 67, 43 et seq. Cf. under V.1 on the “consensus” in the treaty-making process. Cf. to the example of Cambodia, in this Volume. 218 Max Planck UNYB 9 (2005) agreement, a fact that is of course unavoidable; however, these persons have to be representatives of the respective conflict parties.99 Furthermore, the involvement of the conflict parties in reaching a peace settlement and bases for the reconstruction of the state should in any case be followed later by a consultation of the people, first through elections and later in the elaboration of the constitution as was the case in Iraq. A positive aspect of the DPA is undoubtedly the strong emphasis laid on human rights protection which constitutes an indispensable part of any post-conflict regulation and is a significant aspect of all cases of state reconstruction, be it on the basis of a treaty or of a Security Council resolution. The same is true in particular for entrusting human rights protection to an international body, at least for the time until the national judicial system is functioning. The example of BiH demonstrates, however, also that human rights protection, even through international organs, is dependent on a functioning executive, i.e. organs implementing the decisions. In this respect, there were severe deficiencies persisting for a rather long period.100 On the other side, some provisions which were designed to reconstruct a new state within a short period have proven less positive, namely the ambition to change the political leadership through elections within a very short term in order to transfer full sovereignty upon the newly constituted organs. This approach ignored the fact that elections, even free elections under international supervision, could not promote reform and democracy as long as true democratic structures and in particular the necessary internal, i.e. national cohesion was missing. In fact, the elections held in 1996 served to legitimize the powers of the nationalist leaders, authors of the armed conflict, and also the efforts to overcome such results by new elections – in fact, seven election rounds were organized between 1996 and 2002 – could not remedy that situation.101 The confirmation of nationalist leaders through the elections is certainly one of the reasons for the slowness of the statebuilding process in BiH because decision-making continued to follow 99 100 101 Cf. A. von Bogdandy et al., in this Volume, who use the term “elite consens” which in a first time after a conflict is certainly needed but which should not constitute the ultimate basis for the reconstruction of the state. Cf. K. Oellers-Frahm, see note 63, 277 referring to a decision of the Human Rights Chamber in which the lack of co-operation in enforcing decisions of the Chamber is qualified as a violation of article 8 ECHR. Cf. Vitzthum, see note 44, 832. Oellers-Frahm, Case Study Bosnia-Herzegovina 219 ethnic, not subject-oriented considerations.102 The lesson to be learned from this experience should be that state-building, even better nationbuilding, is a precondition for peace, not the natural consequence of absence of war,103 and that in ethnically torn countries consensus democracy is required. That means that a number of a priori schematic commitments must be fulfilled before state-building can be successful.104 In the case of Iraq elections were scheduled for roughly a year and a half after the conflict and even that seemed to be insufficient, because the religious antagonism had not at all been overcome. A further weakness of the DPA was the multitude of international actors involved and the lack of cohesion105 between them, in particular between the military and the civilian actors with regard, e.g. to the tasks of SFOR. Differences appeared also between the civilian agencies because their tasks were not clearly delineated and because they all had their own logistics requirements, financing mechanism, staffing and chain of command. The most important international agencies involved were: the OSCE responsible for electoral support, human rights monitoring, and arms control implementation; the United Nations Mission in Bosnia and Herzegovina (UNMIBH) controlling the operation and restructuring of civil police; the European Commission and the World Bank implementing economic reconstruction programs; the UNHCR responsible for humanitarian relief, refugees and displaced persons; and the International Committee of the Red Cross (ICRC) concerned with prisoners of war. Mention has also to be made of the International Police Training Force (IPTF) and the European Community Monitoring Mission (ECMM). Furthermore, the civilian international actors had no power to compel local actors to implement their obligations flowing from the DPA. Nevertheless, despite some tensions and lack of coordination, these different agencies have, to a certain extent, done a helpful job, in particular by enhancing the working relations for the day-to-day operations, such as handling civilian traffic across interethnic boundaries or bringing together international agencies with local mayors and public officials in order to resolve numerous difficulties. 106 102 103 104 105 106 Ibid., 839; cf. also Borden/ Caplan, see note 57, 231. Cf. also Ducasse-Rogier, see note 55, 80. Cf. Aolain, see note 33, 969, 970. Vitzthum, see note 44, 839. J.A. Schear, “Bosnia’s Post-Dayton Trauma”, Foreign Pol’y 104 (1996), 87 et seq. (94). 220 Max Planck UNYB 9 (2005) On the other hand they were also manipulated by the Bosnian parties who used or better misused them to further their own political ends.107 What proved, however, to be the main problem of the DPA was the effective consolidation of division. Within the guise of unity the de facto partition of the country among ethnic communities was perceived to form a homogenous state. The incompatibility of this duality with basic democratic principles illustrates the weakness of the DPA.108 On this basis the construction of the central state BiH which would help to overcome the problems resulting from the ethnic-based partition, was rather illusory. As already indicated, the ethnically based structure of the central state prevented the creation of sound institutions,109 ensuring respect for the rule of law and the integration of Bosnia. When this became evident to the international actors it was up to them to accordingly change their strategy, since an amendment of the DPA was not in question and also a definite division of Bosnia was not regarded as providing a basis for greater stability in the region.110 In this context the flexibility of the DPA proved to be extremely helpful, in particular the undefined, but large powers accorded to the HR. On the other hand, the maintenance of the DPA despite of its deficiencies for promoting the state-building process made it clear that it was dependent on the HR, respectively the PIC and its Steering Board, to initiate the necessary change of strategy. Thus it was finally the personality and quality of the HR to which the change of strategy was due which certainly is not a sound legal basis for state-building processes. Nevertheless, in the case of BiH, it was the HR who took the initiative to overcome the obstructionism by giving a very wide interpretation to his own powers which was backed by the PIC by the so-called “Bonn-powers”111 thus initiating some progress in the state-building process. What was still lacking at that time was, however, a modification of the overall civilian strategy, i.e. the co-ordination between the main actors: OHR, OCSE, IPTF and UNHCR.112 It was the third HR, Wolfgang Petritsch, who initiated a change in the conception and management of the statebuilding process in that priority was given to build first sound and de107 108 109 110 111 112 Aolain, see note 33, 993. Aolain, see note 33, 968. Vitzthum, see note 44, 840. Bildt, see note 47, 455. See under VI. 4. b., cf. Doc. S/1997/979 of 16 December 1997, Conclusions of the Peace Implementation Conference. Cf. Vitzthum, see note 44, 839. Oellers-Frahm, Case Study Bosnia-Herzegovina 221 mocratic state structures and institutions before holding elections. During 1999 and 2000 such factual change of the DPA was slowly realized leading to significant results in the field of refugee returns, macroeconomic performance and electoral, constitutional and judicial reforms113 which had an important impact on the partition of the territory. A second innovation introduced by HR Petritsch may retrospectively be considered as the real turning point in reconstructing BiH, namely the “concept of ownership”.114 This concept seems to express a banality, namely that the goal of the international involvement in the peace-process was to allow Bosnians to regain full control over their country as soon as possible. Although this concept did not materialize under Petritsch it set the right impetus for the action of the fourth HR, Paddy Ashdown, still in office at the time of writing. The strategy then initiated took account of the fact that due to the obstructionism in the central state organs the international administration had been forced to fulfil increasingly state functions instead of decreasing its involvement. Thus, state administration happened “far away” from the people and the democratic structures of the new state. The change initialled by the “concept of ownership” consisted on the one hand in involving national officials in the action of the international agencies and on the other in explaining to the people the necessity of the reforms for their personal lives. By these means an increased partnership between the international and local actors was reached which sooner or later will diminish the need for international involvement.115 On the other hand the “dialogue” with the people, the effort to make them understand the necessity of reforms which all have the aim to enhance their living conditions116 should finally lead to decrease the influence of the nationalist leaders, a precondition for establishing an efficient administration, a reliable judiciary and functioning political institutions as well as the respect for the rule of law. With regard to the case of Iraq as well as Kosovo and East Timor it seems that a lesson has in fact been learned from the case BiH, namely that the post-conflict regulations should be based on a sound basis. In all these cases a Security Council resolution instead of a “fake” treaty. 113 114 115 116 Ducasse-Rogier, see note 55, 84. Speech of Wolfgang Petritsch to the UN Security Council, New York, 8 November 1999. Cf.under X. Aolain, see note 33, 963. Max Planck UNYB 9 (2005) 222 Furthermore, it is certainly not by chance that BiH is the only example where a constitution entered into force the very day the peace agreement was signed without any provision for involving the people in the constitution-making or constitution-affirming process. The elaboration of a constitution after free elections seems in fact to constitute a significant step not only in the state-building, but also in the nation-building process. Finally, there should be only one or two leading states implementing the reconstruction-process and co-ordinating the international organizations involved. A lesson which finally seems to be learned from BiH and which also applies for Iraq concerns the fact that international involvement will be necessary for a rather long time and that the date of elections cannot be the date of discharge of the international actors. X. Concluding Remarks A final analysis of the model of rebuilding BiH as provided for in the DPA has to come to the conclusion that this model has failed, in particular because of its underlying paradigm: “early elections – quick exit”. What finally marked a turning point and is a, if not the, promising means to build a democratic and functioning state BiH, was the new strategy based on the “concept of ownership”. This concept relies on the fact that conflicts involving questions of sovereignty and ethnic antagonism cannot efficiently be resolved by simply creating a new although federal structured state and transferring full sovereignty to that state at the end of the armed conflict, but that the transfer of sovereignty has to be effected step by step involving the national actors. The main idea behind this strategy is the conviction that sound democratic institutions require cohesion at the basis, that they cannot work if imposed from outside without acceptance by the people(s) and that therefore the most important task of international actors is an “educational” one, namely to convince the people(s) of the advantage of building a state ensuring the rule of law. What has been labelled in BiH as “concept of ownership” is discussed and proposed as efficient peace-building concept after sovereignty-based/ethnic conflicts in international doctrine as the model of “earned sovereignty”.117 According to this model the newly created or 117 Cf. J.R. Hooper/ P.R.Williams, “Earned Sovereignty: The Political Dimension”, Den. J. Int’l L.& Pol’y 31 (2003), 355 et seq.; P.R. Williams/ F. Jan- Oellers-Frahm, Case Study Bosnia-Herzegovina 223 reconstructed state will gain full sovereignty according to the progress of the functioning of its national institutions. Sovereignty is thus no longer indivisible, but can take different forms so that there are conceivable entities that are something less than a sovereign state, but more than a sub-state entity. In this process three core elements are distinguished:118 1. During a first phase earned sovereignty is characterized by shared sovereignty, that means that international institutions, such as e.g. the OHR in BiH, exercise sovereign authority and functions in addition or, more realistically in a first phase, in lieu of the state. 2. During the shared sovereignty phase institutions are constructed with the assistance of the international community, but not by octroi of the international actors. This phase may take much time and seems to be the most important and difficult one in that it requires the international actors to persuade the national partners of the necessary changes and to make them acquainted with democratic standards and the rule of law. 3. The determination of the final status could be reached by referendum which would be best with regard to the legitimacy of the status, but also by a negotiated settlement. What is necessary in this context is on the one hand the acceptance of the new status by the people(s) concerned as well as the consent of the international community in the form of international recognition. During these different phases a measured devolution of sovereign functions and authority from the international community to the new state organs has to be enacted which could be made dependent on the fulfilment of certain benchmarks, such as protection of human rights and minorities, developing democratic institutions, institution of the rule of law or regional stability. The concept of “earned sovereignty” which may follow from a peace treaty as well as from a peace-process imposed by the international community, i.e. Security Council Resolution under Chapter VII, seems the most promising solution in ethnically based conflicts where the prerequisites for self-determination are not met. Reconstructing a state composed of several ethnical entities needs international involve- 118 notti Pecci, “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination”, Stanford J. Int’l L. 40 (2004), 347 et seq. Hooper/ Williams, see above, 360 et seq.; Williams/ Jannotti Pecci, see above, 355 et seq. 224 Max Planck UNYB 9 (2005) ment before full sovereignty is transferred. As recent experience has shown, it is, however, not a more or less long-lasting international administration superposed on the national organs which guarantees peaceful state-building, but the joint action of international and national actors. Only where the reconstruction of a state is accompanied, not dominated, by the international community, is it possible to create the necessary confidence-building climate, to reduce ressentiment, and to enhance national efforts. What is, therefore, necessary in postconflict reconstructing states is to prevent complete international dependency under the umbrella of which nationalist ambitions may continue to prosper. In the case of BiH the basic error was the ethnoterritorial principle governing the new state together with the too early timed elections. This could only lead to strengthening the position of the nationalist leaders and to shift responsibility for the state-building to the international actors. The indispensable international involvement has to be clearly defined, also with regard to the accountability, and has to be organized in such a way that co-operation with national organs is guaranteed from the beginning, coupled with permanent information efforts in order to convince the basis of the importance of the necessary reforms and decrease the influence of ethnic oriented politics. UNMIK in Kosovo: Struggling with Uncertainty Jürgen Friedrich* I. II. Introduction Historical Background 1. Origins of the Conflict 2. Intensification of the Conflict and International Responses 3. Initial Post-Conflict Situation III. The Framework of Resolution 1244 and General Format of the Mission 1. Mandate for UNMIK and KFOR under Security Council Resolution 1244 a. Legal Basis b. Objectives and General Format of the Mission aa. KFOR bb. UNMIK cc. Complete Governmental Powers for UNMIK 2. Legal Status of Kosovo under UNMIK 3. Self-Determination for Kosovo? a. The Kosovo Albanians and the Right to Self-Determination b. Self-Determination and Resolution 1244 c. Self-Determination and Future Status * The author would like to thank Prof. Dr. Rüdiger Wolfrum, Dr. Christiane Philipp, Isabel Feichtner, LL.M., and Jochen Braig for their most helpful comments. A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 225-293. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. 226 IV. Max Planck UNYB 9 (2005) Implementing Resolution 1244: Six Years of UNMIK Practice in Overview 1. Building of Institutions for Self-Government and Transfer of Authority a. Phase 1 (July 1999 – January 2000): No Meaningful Participation b. Phase 2 (January 2000 – November 2001): Local Participation in Administrative Decision-Making c. Phase 3 (November 2001 – today): Kosovo-Wide Provisional Institutions of Self-Government 2. Law and Order 3. Post-Conflict Justice 4. Economy 5. Return of Refugees 6. Protection and Promotion of Human Rights V. Legality of the Implementation Practice 1. Territorial Integrity and Sovereignty of Serbia and Montenegro 2. Principle of Self-Determination 3. International Human Rights a. Human Rights Obligations of UNMIK and KFOR aa. UNMIK bb. KFOR b. Human Rights Violations by the International Actors c. Absence of Effective Remedies against the International Authorities 4. Law of Occupation VI. Some Lessons for Future Missions 1. Need for a Clear Political Perspective 2. Respecting Basic Democratic Standards and Standards of Human Rights to Maintain Credibility and Legitimacy 3. Minority Protection 4. Ensuring Democratic Participation of the Population VII. Final Concluding Remarks Friedrich, Case Study – Kosovo 227 I. Introduction The violent conflict in Kosovo at the end of the last century induced extraordinary commitment and involvement of the international community. Following, in many ways, unprecedented intervention by the world’s most powerful security alliance, the United Nations moved to establish an international territorial administration which was equally unprecedented for its scope, concentration of authority and financial capacity. More than six years after, with the world’s attention having moved on to other trouble spots, Kosovo is struggling. Ethnically motivated violence against the Serb, Roma and Ashkali minority communities killed 19 and left almost 1000 persons injured in March 2004, not to speak of the widespread destruction of houses and churches. Elections in November 2004 were largely boycotted by the Serb community,1 who felt alienated and had lost trust in the authority of UNMIK (United Nations Interim Administration Mission in Kosovo). At the same time, dissatisfaction and impatience of the majority, the Kosovo Albanians, with the work of UNMIK is indicated by one-sided moves of the Kosovo Assembly challenging the distribution of power under UNMIK Regulations. To make things worse, the unemployment rate has attained record levels of 70 to 90 per cent. Taking these difficulties into account, it is high time to think about whether changes of policy can improve the situation and still save the international community from failing to deliver on its promises. A refocus on Kosovo is also necessitated by the fact that the issue of the future status, which still awaits a solution, becomes more pressing. Furthermore, enough time and resources have been spent to allow for a tentative assessment of what general lessons Kosovo teaches for future UN missions that might have to address similar post-conflict situations. Are there structural problems with the approach used in Kosovo that could be avoided in the future, if politically feasible? Can the approach chosen in Kosovo provide a useful model for future post-conflict peacebuilding? In addition to making the attempt to focus on some of these questions, this case study is foremost concerned with trying to provide the 1 Doc. S/2004/348 of 30 April 2004, para. 3. 228 Max Planck UNYB 9 (2005) necessary facts about this mission, thereby hoping to contribute to a better understanding of the “situation on the ground”, as the basis for comparisons with other cases and for further analysis. It therefore starts with the most essential historical facts (Part II.), to be followed by an overview of the framework that forms the basis of this mission, but which has also been the root of some of the difficulties that the mission faced and is still facing. In this context, light will be shed on the issue of self-determination which occupies such a central place in both the conflict and its solution (Part III.). Thereafter, the implementation practice with regards to some of the key objectives is addressed in a cursory fashion in order to allow the reader to get a basic understanding of the actual work of the administration and the enduring difficulties (Part IV.). As we are faced with an administration that has assumed full governmental power, the question of the legal limitations gains particular importance in the case of Kosovo. In addition, legality is directly linked to legitimacy and credibility, two key factors for the acceptance of the mission and ultimate success. Therefore, Part V. indicates the legal limitations and addresses some legality issues arising from the practice of the mission. Finally, in Part VI. an attempt will be made to point out some general lessons that can be drawn from the experience in Kosovo. The conclusion will include some remarks on the model character of the mission and its usefulness (Part VII.). Friedrich, Case Study – Kosovo 229 II. Historical Background2 1. Origins of the Conflict The conflict in Kosovo and the difficulties of peacefully resolving it cannot be understood without taking into account the strong historical and emotional ties of both Albanians and Serbs to the province. Many Albanians view Kosovo as a cultural centre as well as a metaphor for the injustices that Albanians had to endure during their history.3 The importance attached to Kosovo by Albanians also derives from the crucial role which the province played during the historical period of 1878-1912.4 Exemplary is that the Albanian national movement, which ultimately led to the declaration of independence of Albania in 1912, started at a meeting in Prizren in 1878.5 The Serbs’ attachment to Kosovo is to a large extent based on the perception that Kosovo reflects part of their collective identity, as it is by many considered to be the “cradle” of Serb nationhood.6 Of centrality for the development of such a perception is the Battle of the Field of the Blackbirds of 1389, in which a coalition army under the leadership of the Serb prince Lazar lost to Ottoman forces under Sultan Murad I. 2 3 4 5 6 For overviews of the historical and political background of the conflict in Kosovo, see for example N. Malcolm, Kosovo: a short history, 1998; Independent International Commission on Kosovo, Kosovo Report. Conflict, International Response, Lessons Learned, 2000, Part I; P.A. Zygojannis, Die Staatengemeinschaft und das Kosovo: Humanitäre Intervention und internationale Übergangsverwaltung unter Berücksichtigung einer Verpflichtung des Intervenienten zur Nachsorge, 2003, 22-30; T.D. Grant, “Extending Decolonisation: How the United Nations might have addressed Kosovo”, Ga. J. Int’l & Comp. L. 28 (1999), 10 et seq. (10-20); J. Kokott, “Human Rights Situation in Kosovo 1989 – 1999”, in: C. Tomuschat (ed.), Kosovo and the International Community, 2002, 1 et seq. (2-6); OSCE Kosovo Verification Mission, “Historical and Political Background to the Conflict, in: K. Ambos/ M. Othman (eds), New Approaches in International Justice: Kosovo, East Timor, Sierra Leone and Cambodia, 2003, 9 et seq. M.J. Calic, “Kosovo in the twentieth century: A historical account”, in: A. Schnabel/ R. Thakur (eds), Kosovo and the Challenge of Humanitarian Intervention, 2000, 19 et seq. (24). Malcolm, see note 2, 217. Id., 223; Calic, see note 3, 24. Calic, see note 3, 23. 230 Max Planck UNYB 9 (2005) While the battle has historical importance insofar as the defeat ensured the decline and eventual ending of medieval Serbian influence in the province, the significance lies mainly in the central role of the story of the battle for Serbian identity.7 The battle emerged as the centrepiece of the ideology of the Serbian nationalist movement of the 19th century. Thus, Kosovo plays a fundamental role for the Albanian and Serb nationalist movements and their collective identities, a factor that should not be underestimated when dealing with the conflict today. It was not until 1878 that the Serbs regained complete independence and not until 1912 in the First Balkan War that they gained control over Kosovo. The area had in over five hundred years of Ottoman rule become home to a majority of Albanians that had converted to Islam. Despite this demographic constellation, Kosovo was divided between Serbia and Montenegro and did not become part of the new Albanian state. Under Tito’s rule in Yugoslavia, Kosovo Albanians gained recognition as a minority and Kosovo was granted the status of an autonomous province under the Yugoslavian Constitution of 1974.8 However, Tito’s death in 1980 was followed by growing nationalism and neither the Serbs nor the Kosovo-Albanians were – for opposite reasons – content with the status of autonomy. Serbs in Kosovo felt alienated and discriminated against by an Albanian majority and Kosovo-Albanians demanded the status of an independent republic within the SRFY. With Slobodan Milošević and Serbian nationalism becoming increasingly influential in Serbia, minority rights and provincial autonomy of Kosovo were largely abolished through amendments in the Serbian Constitution in 1989. After the Kosovo Assembly was dissolved in 1990, 114 of the 180 deputies declared Kosovo an independent republic within the SRFY and organised a referendum on sovereignty which was reported to have been 99 per cent in favour with 87 per cent of the population participating. As a result of the suppression of those activities by Serbian police, an Albanian “shadow state” developed. The parallel elections in May 1992 were won by the League for a Democratic Kosovo led by Ibrahim Rugova who was declared President of the Republic of Kosovo in 1992. His policies of seeking a peaceful settlement and attempts for international protection for Kosovo brought little results. As 7 8 Malcolm, see note 2, 58. However, Kosovo was not recognised as a republic within the Socialist Federal Republic of Yugoslavia, which consisted of the republics of Slovenia, Croatia, Bosnia-Herzegovina, Macedonia, Montenegro, and Serbia. Friedrich, Case Study – Kosovo 231 the Kosovo issue was not included in the international negotiations at Dayton in 1995, more radical movements gained the upper hand. 2. Intensification of the Conflict and International Responses From 1996 onwards, armed resistance and a violent struggle for independence led by the Kosovo Liberation Army (UÇK) were met with increasing violence by the Serbian police and special security forces. In 1998, attacks by those forces on villages and grave human rights violations from both sides not only strengthened support for the UÇK even among moderate Kosovo Albanians, but finally led to greater but arguably belated9 international attention. As reaction to the deteriorating situation, the UN Security Council supported the strategy of the so called “Contact Group”10 and imposed an arms embargo on the (then) Federal Republic of Yugoslavia (FRY)11 through Resolution 1160.12 Serbia ignored the demands of the Resolution and Serb forces intensified their campaign, leading to the displacement of over 230,000 people from their homes in just four months. In Resolution 1199, the UN Security Council on 23 September 1998 called for an end to civilian repression as well as for a cease-fire and the start of a dialogue between the Kosovo Albanian leaders and the FRY.13 Against the explicit opposition from Russia, these demands were backed up by a threat of air strikes by NATO. The strategy bore fruit insofar as it resulted in the Holbrooke-Milošević Agreement which was “endorsed” by the UN Security Council in Resolution 1203.14 This cease-fire, monitored by the OSCE Kosovo Verification Mission,15 did not last and could not prevent further massacres of the civil9 10 11 12 13 14 15 For the argument that earlier action might have prevented the escalation and the need for NATO military action, see Kokott, see note 2, 34. The six-country contact group includes France, Germany, Italy, the Russian Federation, the United Kingdom and the United States. This name will be used when referring to Serbia and Montenegro in a historical context, i.e. the time before the change of name in 2003. S/RES/1160 (1998) of 31 March 1998, para. 8. S/RES/1199 (1998) of 23 September 1998, paras 1 and 4. S/RES/1203 (1998) of 24 October 1998, paras 1 and 3. See for the activities of the OSCE, W. Czaplinski, “The Activities of the OSCE in Kosovo”, in: C. Tomuschat (ed.), Kosovo and the International Community, 2002, 37 et seq. Max Planck UNYB 9 (2005) 232 ian population. Another diplomatic attempt at Rambouillet failed for lack of consent by the FRY/Serb delegation. The provisional Rambouillet Agreements foresaw autonomous institutions for Kosovo, a mechanism for a final political settlement at the end of three years, reaffirmed Yugoslav sovereignty and included the deployment of a NATO force to enforce these terms. After Serbia declined to accept, the NATO air campaign started on 24 March 1999 and lasted until 8 June 1999, when the governments of the FRY and the Republic of Serbia accepted a peace plan of the Group of Eight (G7 and Russia) and signed and approved a Military Technical Agreement with KFOR.16 The political principles of the peace plan – being based on the principles of the Rambouillet Agreements – were embraced by the Security Council in Resolution 1244.17 It contains the obligation for the FRY to end the violence and to withdraw all military, police and paramilitary forces from Kosovo,18 and for the UÇK to cede all offensive action and to demilitarise.19 The Resolution authorises NATO to deploy an “international security presence”20 (KFOR) and the Secretary-General of the UN to establish an “international civil presence” (later UNMIK).21 3. Initial Post-Conflict Situation The humanitarian situation after the end of the conflict was dire. Out of a population of 1.7 million, 800,000 persons had taken refuge in neighbouring countries and about 500,000 were internally displaced.22 The security situation was tense and many Serbs left Kosovo as a result of crimes committed by Kosovo Albanians against Serbs, including killings, forced expropriations, looting and arson.23 16 17 18 19 20 21 22 23 See Military Technical Agreement between the International Security Force (“KFOR”) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, available at: http://www.nato.int/kfor/kfor/ documents/mta.htm (last visited 1 June 2005). S/RES/1244 (1999) of 10 June 1999, para. 1 and Annexes 1 and 2. Ibid., para. 3. Ibid., para. 15. Ibid., para. 5 and 7 in conjunction with Annex 2, para. 4. Ibid., paras 5 and 6. Doc. S/1999/779 of 12 July 1999, para. 8. Ibid., para. 5. Friedrich, Case Study – Kosovo 233 Besides the largest Serb minority, Kosovo is also home to Roma, Ashkali, Egyptian, Bosnian and Gorani minorities. The relations between Kosovo Albanians, who make up for approximately 90 per cent of Kosovo’s population, on the one hand, and Serbs and other minorities on the other were in serious disrepair; cities were often divided along ethnic lines. Basic infrastructure and public services were largely inoperative, although water and electricity were usually available.24 The economy was catastrophic and the complete absence of investment and finances made economic projections for the future look sombre.25 III. The Framework of Resolution 1244 and General Format of the Mission 1. Mandate for UNMIK and KFOR under Security Council Resolution 1244 a. Legal Basis When authorising Member States to establish the international security presence and the Secretary-General to establish the international civil presence by means of Resolution 1244, the Security Council was explicitly acting under Chapter VII of the UN Charter. It is widely accepted that Chapter VII provides sufficient legal ground for the deployment of a territorial administration, including the complete take-over of governmental functions as in the case of UNMIK in Kosovo.26 24 25 26 See ibid., paras 11-13. Ibid., para. 16. S. Chesterman, You, the people: The United Nations, Transitional Administration, and State-Building, 2004, 54; J.A. Frowein/ N. Krisch, “Article 41”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. I, 2002, MN 21; C. Stahn, “The United Nations Transitional Administrations in Kosovo and East Timor: A first analysis”, Max Planck UNYB 5 (2001), 105 et seq. (139); T.H. Irmscher, “The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation”, GYIL 44 (2001), 353 et seq. (353); J.A. Frowein, “Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen”, in: H.W. Arndt (ed.), Völkerrecht und deutsches Recht, 2001, 43 et seq. (44); M. Bothe/ T. Marauhn, “The United Nations in Kosovo and East Timor – Problems of a Trusteeship 234 Max Planck UNYB 9 (2005) The legal and political reasoning which supports such powers of the Security Council emanates from the consideration that the concept of “peace” in the sense of Article 39 UN Charter must be understood to include the establishment of long-term and sustainable peace.27 Insofar and to the extent that territorial administrations must be considered a necessary instrument to fulfil this task,28 the Security Council has the power to authorise such administrations under Article 41 UN Charter.29 The absence of any explicit reference to such a measure does not present an obstacle, because the list of measures contained in Article 41 must be considered as non-exhaustive.30 The same reasoning can be applied to measures under Article 42, which in conjunction with Article 48 provides the legal basis for a mandate that comprises the use of force, e.g. the authorisation for the international security presence (KFOR).31 A different reasoning ultimately leading to the same result is to rely on the implied powers doctrine developed by the ICJ.32 In this sense, it can be argued that the establishment of a territorial administration is an essential and necessary tool for the Security Council in order to fulfil its duty under Article 39 of the UN Charter, i.e. to achieve peace and security. Therefore, its establishment lies within the realm of the powers of 27 28 29 30 31 32 Administration”, International Peacekeeping 6 (2000), 152 et seq. (154); M. Wagner, “Das erste Jahr der UNMIK”, Vereinte Nationen 4 (2000), 132 et seq. (133). See in particular M. Ruffert, “The administration of Kosovo and EastTimor by the international community”, ICLQ 50 (2001), 613 et seq. (616622). Ibid., 620-621. See the authors at note 26. International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Tadić (Appeal on Jurisdiction), Case No. IT-94-AR72, 2 October 1995, paras 34 et seq.; Bothe/ Marauhn, see note 26, 154; Frowein, “Notstandsverwaltung”, see note 26, 44; M.J. Matheson, “United Nations Governance of Postconflict Societies”, AJIL 95 (2001), 76 et seq. (79); A. Yannis, “The UN as Government in Kosovo”, Global Governance 10 (2004), 67 et seq. (84). Frowein/ Krisch, see note 26, MN 21; C. Stahn, “International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges ahead”, ZaöRV 61 (2001), 107 et seq. (131); Bothe/ Marauhn, see note 26, 154. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174 et seq. (182). Friedrich, Case Study – Kosovo 235 the Security Council even though Articles 41 or 42 of the UN Charter do not expressly provide for such powers.33 Another possible legal explanation is to consider the mandate part of the customary powers of the organs of the United Nations, i.e. in this case of the Security Council.34 With regard to Kosovo, the acceptance by the international community of such practice is, for example, expressed in two General Assembly Resolutions.35 Although it is not necessary to rely on customary or implied powers given that the lists of measures in Articles 41 and 42 of the Charter are non-exhaustive, any of these legal explanations leads to the same result, namely that the Security Council can mandate such administrations. All mentioned possibilities provide the legal basis for the pursuit of the entire objectives and duties outlined by Resolution 1244, since all of these objectives are fundamental to building a sustainable peace. Insofar as governmental functions, including judicial and legislative functions, are necessarily connected to these objectives, the Security Council’s mandate is not limited to administrative tasks. It potentially extends to all necessary governmental functions,36 albeit within the limits of necessity, the Resolution itself and other legal parameters.37 b. Objectives and General Format of the Mission aa. KFOR KFOR must generally support UNMIK but nevertheless retains an independent position vis-à-vis UNMIK, as it is authorised separately and 33 34 35 36 37 Ruffert, see note 27, 621; L. von Carlowitz, “UNMIK Lawmaking between Effective Peace Support and Internal Self-determination”, AVR 41 (2003), 336 et seq. (342 and 343) (arguing that implied powers justify the power of the Security Council to vest regulatory power in UNMIK). E. de Wet, “The Direct Administration of Territories by the United Nations and its Member States in the Post Cold war Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq. (312-318). A/RES/53/241 of 28 July 1999 and A/RES/54/245 of 23 December 1999. Frowein/ Krisch, see note 26, MN 20; Matheson, see note 30, 84; von Carlowitz, see note 33, 342. See for the question whether the complete governmental control of UNMIK was legitimate in light of Resolution 1244, further below in this Part at b. cc. For the legality of the implementation practice see in particular Part V., below. 236 Max Planck UNYB 9 (2005) has its own area of responsibility.38 This is clarified in Resolution 1244 which stipulates that KFOR should be “coordinating closely with the work of the international civil presence”39 in “a mutually supportive manner”.40 This parallel non-hierarchical structure between the peacekeeping or peace-enforcement component and the international administration differentiates this mission from UNTAET – the United Nations Transitional Administration in East Timor. UNTAET had the power “to take all necessary measures to fulfil its mandate”.41 For these purposes, it was endowed with a military component which replaced the multinational force INTERFET and which was integrated into the structures of UNTAET under a unified command.42 KFOR’s tasks are, on the one hand, those of classic peacekeeping troops. They include deterring new hostilities, ensuring that refugees can return safely and that humanitarian aid can be delivered as well as de-mining and border monitoring.43 On the other hand, KFOR has a mandate for peace-enforcement with respect to enforcing the cease-fire and the demilitarisation of the UÇK.44 Of importance especially in the immediate post-conflict situation was the establishment of a secure environment not only for refugees to be able to return but also for UNMIK and humanitarian organisations to be able to start their work.45 A phased approach was applied with respect to public safety. KFOR took over policing until UNMIK had built up its own and local police.46 Such an initial complete substitution of local police authority had rarely been done before.47 In addition, KFOR remains responsible for the safety and protection of UNMIK and other international organisa- 38 39 40 41 42 43 44 45 46 47 Compare S/RES/1244 (1999) of 10 June 1999, paras 5, 7 and 9. Ibid., para. 9 (f). Ibid., para. 6. S/RES/1272 (1999) of 25 October 1999, para 4. Ibid., paras 3 (c) and 9. See in this respect the contribution of M. Benzing, in this Volume. S/RES/1244 (1999) of 10 June 1999, para. 9 (a), (c), (e), (g). Ibid., para. 9 (a), (b). Ibid., para. 9 (c). Ibid., para. 9 (d). See M. Guillaume, “Le cadre juridique de l’action de la KFOR au Kosovo”, in: C. Tomuschat (ed.), Kosovo and the International Community, 2002, 243 et seq. (259). Friedrich, Case Study – Kosovo 237 tions even in the long run.48 Furthermore, KFOR is demanded to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia (ICTY). This duty to cooperate applies equally to all other persons participating in the UN mission in Kosovo.49 bb. UNMIK While KFOR’s responsibilities resemble those of traditional UNauthorised troops with a strong mandate, UNMIK’s tasks are of an unprecedented scope.50 In order to deal with the multitude of objectives and to coordinate the different organisations, UNMIK comprises four different pillars, each corresponding to a different task area as required by Resolution 1244. Each pillar is placed under the authority and supervision of the Special Representative of the Secretary-General (SRSG) and is headed by a Deputy SRSG. The coordination and provision of humanitarian assistance51 (former Pillar I) was provided by the Office of the High Commissioner for Refugees (UNHCR) until the emergency stage was over and the engagement was phased out at the end of June 2000. The civil administration52 (Pillar II) and the police and justice administration53 (new Pillar I since 2001) are run directly by the UN. The objective of democratisation and institution building (Pillar III) is being pursued under the leadership of the Organisation for Security and Co-operation in Europe (OSCE). Finally, the task of reconstructing the economy and infrastructure54 (Pillar IV) is managed by the European Union. Further overall objectives are the promotion and protection of human rights55 and the return of refugees and displaced persons to their homes.56 The main long-term political objective for UNMIK is to promote the establishment “of substantial autonomy and self-government in 48 49 50 51 52 53 54 55 56 S/RES/1244 (1999) of 10 June 1999, para. 9 (h) and (f). See ibid., para. 13. Matheson, see note 30, 79; Yannis, see note 30, 67. S/RES/1244 (1999) of 10 June 1999, para. 11 (h). Ibid., para. 11 (b). Ibid., para. 11 (i). Ibid., para. 11 (g). Ibid., para. 11 (j). Ibid., para. 11 (k). 238 Max Planck UNYB 9 (2005) Kosovo”.57 The “development of provisional institutions for democratic and autonomous self-government” and the holding of elections is to be accompanied by a transfer of administrative responsibilities “as these institutions are established”, while UNMIK is “overseeing” their consolidation.58 Such a wording can be interpreted to mean a gradual transfer of authority which depends on UNMIK’s discretion. After having facilitated a political process to determine Kosovo’s future status, UNMIK has the responsibility to oversee the final transfer of authority to the institutions established under a final settlement.59 cc. Complete Governmental Powers for UNMIK In Regulation60 1999/1 of 25 July 1999, the SRSG outlines that the authority vested in UNMIK by means of Resolution 1244 comprises all legislative and executive power, as well as the authority to administer the judiciary.61 According to the Regulation, not only can the SRSG issue directly applicable law and in fact decide what the law in Kosovo should be, but he can also appoint or remove any person within the civil administration and the judiciary.62 The scope of such an authority is all-encompassing, as it gives the SRSG complete control over the legislature, the executive and the judiciary of Kosovo. The assumption of far-reaching responsibilities reaches unprecedented levels in Kosovo, but is not entirely new. Many similarities exist with the United Nations Transitional Authority in Cambodia (UNTAC) which was established by Security Council Resolution 745 in 1992.63 The scope of responsibilities as outlined in the Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, signed in Paris on 23 October 1991, encompassed inter alia administration, law and order, security, reconstruction, humanitarian aid, human rights 57 58 59 60 61 62 63 Ibid., para. 11 (a). Ibid., para. 11 (c) and (d). Ibid., para. 11 (f). Regulations are the legislative acts of UNMIK which take precedence over all other law in force, see for the legal hierarchy in detail further below, in this part. UNMIK/REG/1999/1 of 25 July 1999, section 1 para. 1; all UNMIK Regulations are available at: www.unmikonline.org/regulations (last visited 1 June 2005). Ibid., section 1 para. 2. S/RES/745 (1992) of 28 February 1992. Friedrich, Case Study – Kosovo 239 promotion and the organisation of free elections. It was envisaged that UNTAC, according to the legal framework, would take over crucial administrative tasks for each of the different areas as well as judicial and legislative functions.64 Although comparable in original concept and approach as well as in the enormous scope of the mission, UNTAC’s role was in practice more akin to one of supervision and monitoring.65 Therefore, while the initial approach to territorial administration showed many parallels with Kosovo, the actual implementation deviated considerably. Similarities also exist between the role of the UN in Kosovo and in Bosnia-Herzegovina, but in this case the resemblance lies less in the original framework as in Cambodia, but in the actual implementation. Contrary to Kosovo and Cambodia, the approach initially taken by the international community in Bosnia-Herzegovina, as determined by the Dayton Agreements, did not provide for a similar displacement of the sovereign government of the state.66 Here, the practical circumstances required a change of strategy, resulting in a strong role for the High Representative in Bosnia-Herzegovina comparable to a considerable extent to that of the SRSG in Kosovo. The High Representative was forced to extend its initial, merely supervisory role, by increasingly interfering with legislative and executive action in order to overcome the paralysis of the national institutions.67 It seems likely that the approach of UNMIK in Kosovo was influenced by the experiences in BosniaHerzegovina, because contrary to Bosnia-Herzegovina, a strong role with far-reaching powers was envisaged from the very beginning of the mission. Kosovo in turn has served as a model for UNTAET, which was equally vested with far-reaching responsibilities and corresponding full governmental powers very similar to those of UNMIK in Kosovo.68 The wide scope of powers claimed by the SRSG is reflected in the hierarchy of the legal norms. UNMIK Regulations as the primary legal instruments of the SRSG take precedence over the second source of law, which is the law that was in force in Kosovo before the withdrawal of 64 65 66 67 68 See for more details L. Keller, in this Volume. R. Caplan, A New Trusteeship? The International Administration of Wartorn Territories, 2002, 14. Bothe/ Marauhn, see note 26, 153. See K. Oellers-Frahm, in this Volume. See for a detailed account of UNTAET in East Timor, M. Benzing, in this Volume. 240 Max Planck UNYB 9 (2005) autonomy on 22 of March 1989. Although originally intended to stay in force, the Yugoslavian law in force in Kosovo between 1989 and 1999 was, after a short initial period, declared invalid except for cases in which the issue was not covered by the mentioned sources of law and provided that the Yugoslavian law was not found to be discriminatory.69 International law is not explicitly mentioned as a source of law, but all major human rights treaties are to be observed by any person holding public office in Kosovo.70 This must be understood as the foundation for their applicability to all decision-making, including those of the judiciary. The legal hierarchy thereby established in Kosovo is remarkable for at least two aspects. First, the direct applicability of the Regulations of the International Administration which supersede any municipal law effectively opens the legal system of the administered territory to the decisions of a United Nations representative and thus to “United Nations law”.71 A similar approach was chosen and seemingly widely accepted by Member States in East Timor.72 It was also applied in Iraq, where the Coalition Provisional Authority (CPA) issued Regulations that were to supersede any law in force in Iraq, i.e. the law that was in force in Iraq as of 16 April 2003, in case of conflict.73 This demonstrates a development in international territorial administration towards the possibility of directly inserting international law into the legal order of the territory through international actors.74 Second, it is interesting to note that the initial approach of the SRSG, namely the continuous application of the law of Kosovo before 1999, was altered as a result of protests from Albanian jurists, in particular the Joint Advisory Council on Legislative Matters.75 Only the law in force before the abolishment of autonomy in 1989 was considered to be sufficiently non-discriminatory towards Albanians and thus 69 70 71 72 73 74 75 UNMIK/REG/1999/1 of 25 July 1999, section 3, as amended by UNMIK/REG/1999/24 of 12 December 1999, section 1.3. UNMIK/REG/1999/1 of 25 July 1999, section 2; UNMIK/REG/2000/24 of 12 December 1999 and UNMIK/REG/2000/59 of 27 October 2000. Bothe/ Marauhn, see note 26, 155. See UNTAET/REG/1999/1 of 27 November 1999, section 3. CPA/REG/16 May 2003/01, section 2; for a detailed study of these issues in Iraq, see R. Wolfrum, in his article on Iraq, in this Volume. De Wet, see note 34, 331-332; Bothe/ Marauhn, see note 26, 155. Zygojannis, see note 2, 188; for the role of the Joint Advisory Council, see Part IV. 1. a. Friedrich, Case Study – Kosovo 241 suitable for the new situation.76 The development can be taken as an example of the delicacy of the “rule of continuity”, i.e. the continuous application of the law that was in force under the previous government or regime. However, the exceptions made in Kosovo seem to be a unique deviation from such a rule, especially when one takes into account the continuous application of most Indonesian laws – albeit with important exceptions – under UNTAET77 and of Iraqi law under the CPA and later on.78 The question must be asked, however, whether the concentration of power, which led to a complete de facto governmental control by UNMIK, is legitimate in light of the mandate of Resolution 1244. Unlike Resolution 1272 regarding UNTAET, Resolution 1244 does not explicitly vest legislative and executive powers and the administration of the judiciary in UNMIK. It rather enumerates objectives and functions at the same time as it stresses the sovereignty and territorial integrity of the FRY.79 One could therefore argue that complete legislative powers, including the right to abrogate the Yugoslavian law in force,80 goes beyond the authorisation under Resolution 1244 which could be seen as merely outlining administrative tasks. Accordingly, the FRY has argued that in the initial stages of the mission, the SRSG had “usurped more power than he was given under Security Council resolution 1244 (1999)”.81 However, for the fulfilment of the objectives with which UNMIK is mandated by the Security Council, it requires full legislative powers and at least initially control over the judiciary.82 Promoting human rights as well as completely rebuilding and democratising a society which had up to that point been dominated by a discriminatory and suppressive legal system requires extensive legal reform.83 For similar 76 77 78 79 80 81 82 83 Zygojannis, see note 2, 188; Irmscher, see note 26, 358. Compare UNTAET/REG/1999/1 of 27 November 1999, section 3. CPA/REG/16 May 2003/01, section 2. S/RES/1244 (1999) of 10 June 1999, para. 11 and para. 1 in conjunction with Annex 1 and Annex 2, para. 8. See UNMIK/REG/1999/24 of 12 December 1999. Memorandum of the government of the FRY on the U.N. Security Council Resolution 1244 (1999), Part II, of 5 November 1999, para. 6, available at: http://www.serbia-info.com/news/1999-11/05/15429.html (last visited 1 June 2005). Bothe/ Marauhn, see note 26, 153. Frowein, see note 26, 47. 242 Max Planck UNYB 9 (2005) reasons, the justice system and the executive had to be completely restarted and changed. In other words, the objectives could not be pursued in practice without possessing full governmental powers.84 This argument at the same time expresses the functional limitations that UNMIK has to obey in the exercise of its broad powers. The exercise of governmental powers is further limited by other sources of international law as well as the sovereignty and territorial integrity of Serbia and Montenegro, which must be respected by UNMIK as long as the final status has not been determined.85 UNMIK Regulations that directly touch upon issues of sovereignty such as the collection of customs86 or currency matters87 are problematic in this respect.88 2. Legal Status of Kosovo under UNMIK As already mentioned, Resolution 1244 reaffirms the “commitment of all Member States to the sovereignty and territorial integrity of the FRY”.89 It specifically states that the interim administration for Kosovo aims to establish “substantial autonomy within the Federal Republic of Yugoslavia”.90 This contrasts with the wide scope of UNMIK’s responsibilities, which require not only executive, but also legislative and judicial powers.91 Resolution 1244 therefore has the effect of creating a “hybrid situation” by separating de jure sovereignty from the de facto exercise of public power.92 Even though such a division is not free from controversy with regard to its legitimacy, Resolution 1244 provides a mandate for the functionally necessary governmental powers, as long as the sovereignty of Serbia and Montenegro remains largely intact, i.e. as long as core issues of sovereignty are not regulated by UNMIK and as long as the future 84 85 86 87 88 89 90 91 92 Bothe/ Marauhn, see note 26, 153. See for an analysis of the legality of the implementation practice of UNMIK Part V, below. UNMIK/REG/1999/3 of 31 August 1999. UNMIK/REG/1999/4 of 2 September 1999. For further analysis see Part V. 1., below; compare Memorandum of the FRY, see note 81. S/RES/1244 (1999) of 10 June 1999, preamble. Ibid., para. 10. See for this the previous paragraph, above. Stahn, see note 31, 135. Friedrich, Case Study – Kosovo 243 status is not predetermined. Within these limitations, the separation of sovereignty and exercise of public power is justifiable in light of the mandate. Nevertheless, the “hybrid situation” resulting from the broad scope of objectives is unique and extraordinary, and can hardly be grasped with common terminology or comparisons. It must be differentiated from any previous constellation, but also distinguishes Kosovo from later missions. For example, it differs from the status of Cambodia and Bosnia-Herzegovina, which both remained sovereign states despite the fact that important powers were in both cases delegated to the United Nations Transitional Authority in Cambodia (UNTAC) and the Office of the High Representative (OHR), leading to direct UN supervision and control in many areas.93 The approach also stands in contrast to the case of UN involvement in East Timor. While the role and scope of governmental powers of UNTAET was equally wide and concentrated, the territory was completely internationalised and independent from Indonesia.94 Unlike in the case of East Timor under UNTAET, one cannot speak of Kosovo as of an internationalised territory, as the term suggests that there is no sovereign except for the international community acting through an international organisation.95 Additionally, this term does not provide any further clarifications with regard to legal implications.96 In search of an accurate terminology, the protective function of the international community on which Kosovo entirely depends suggests a classification as a “modern protectorate”.97 But the colonial connotations of such a terminology should caution its usage. The only terminology that seems to accurately describe the situation while at the same time providing for some conceptual guidance is that of a trusteeship. Although Articles 77, 78 of the UN Charter cannot 93 94 95 96 97 For Bosnia-Herzegovina, this is only true for the later period when the High Representative was forced to absorb more power in reaction to the paralysis of the national institutions. Compare K. Oellers-Frahm, in this Volume. For UNTAC’s powers, see in detail L. Keller, in this Volume. Compare Benzing, in this Volume. See for the concept of an internationalised territory in the context of territorial administration, H. Hannum, Autonomy, Sovereignty and SelfDetermination, 1996, 17. Ruffert, see note 27, 629. Stahn, see note 26, 120. Max Planck UNYB 9 (2005) 244 apply directly, there exist strong arguments for an analogy to principles of the trusteeship system of Chapter XII of the UN Charter.98 Considering the fiduciary and interim character of the administration and the fact that the administration in Kosovo acts in place and in the interest of a future beneficiary without having ownership rights, UNMIK could be seen as sort of a trusteeship administration.99 This confirms that the trusteeship concept has been implicitly resurrected at least to a certain extent by international territorial administrations acting under Chapter VII.100 In such cases, the principles of the trusteeship system should then equally apply.101 Although one should refrain from equating former colonies and situations like Kosovo, the trusteeship concept can at least give guidance to extensive and direct international administration as for example in Kosovo,102 especially insofar that Security Council Resolutions lack specificity. 3. Self-Determination for Kosovo? The existence and content of a right to self-determination for the Kosovo Albanians is a question the answer to which has far-reaching consequences not only for the current UN administration, but also for the decision over the future status of Kosovo. In addition, it is of interest for international law in general. a. The Kosovo Albanians and the Right to Self-Determination The principle of self-determination as stipulated in Articles 1 (2) and 55 of the UN Charter is part of modern international law103 and has evolved into a legal right.104 98 99 100 101 102 103 Frowein/ Krisch, see note 26, MN 21; Bothe/ Marauhn, see note 26, 152; Stahn, see note 31, 133 and 134. H.H. Perritt, “Structures and Standards for Political Trusteeship”, UCLA J. Int’l L. & Foreign Aff. 8 (2003), 385 et seq. (402-403); Bothe/ Marauhn, see note 26, 152; Stahn, see note 31, 133 and 134. Stahn, ibid. For an analogical application of the principles of the Trusteeship System, see ibid.; Frowein/ Krisch, see note 26, MN 21. Compare Chesterman, see note 26, 55. See only I. Brownlie, Principles of Public International Law, 5th edition, 1998, 601. Friedrich, Case Study – Kosovo 245 The holder of the right can, at least theoretically, also be a minority living within a state,105 as long as it is a group of people living in a delimited territory which possesses and is closely connected by a distinct history, religion, language, or other cultural attributes, and which is striving to preserve these characteristics.106 When applying such criteria to Kosovo, it must be recognised that the overwhelming majority of the people living within the specific territory of Kosovo are Albanians who not only share a common history, culture, language and religion which differentiates them from the Serb majority of Serbia and Montenegro, but that they have been desiring to preserve their unique identity, especially since the second half of the 19th century.107 They therefore fulfil the objective and subjective criteria for being considered a “people” in international law.108 This is partly confirmed by UNMIK’s practice in Kosovo because the Constitutional Framework for Self-Government in 104 105 106 107 108 See C. Tomuschat, “Self-determination in a Post-Colonial World”, in: C. Tomuschat (ed.), Modern Law of Self-Determination, 1994, 1 et seq. (2); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 et seq. (31); Western Sahara, ICJ Reports 1975, 12 et seq. (31-33). Supreme Court of Canada, Reference re Secession of Quebec, ILM 37 (1998), 1340 et seq. (1373); K. Doehring, “Self-determination”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. I, 2002, MN 29. H.J. Heintze, “Träger des Selbstbestimmungsrechts der Völker”, in: K. Ipsen, Völkerrecht, 5th edition, 2004, § 28, MN 9-10; Doehring, see note 105, MN 29; the definition using subjective and objective elements goes back to the PCIJ, The Greco-Bulgarian “Communities”, PCIJ, Series B, No.17, 1930, 21. See the historical background given in Part II., above. A. Zimmermann/ C. Stahn, “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo”, Nord. J. Int’l L. 70 (2002), 423 et seq. (454); J.A. Frowein, “The Protection of Human Rights in Europe and the Right to Self-Determination”, Studime 10 (2003), 9 et seq. (16); G. Seidel, “A New Dimension of the Right of Self-Determination in Kosovo?”, in: C. Tomuschat (ed.), Kosovo and the International Community, 2002, 201 et seq. (204); F. Münzel, “Läßt sich die Unabhängigkeit Kosovos völkerrechtlich begründen?“, in J. Marko (Hrsg.), Gordischer Knoten Kosovo/ Durchschlagen oder entwirren?, 1999, 199 et seq. (218-219); a different opinion is held by H. Quane, “A Right to Self-Determination for the Kosovo Albanians ”, LJIL 13 (2000), 219 et seq. (219-227). 246 Max Planck UNYB 9 (2005) Chapter 1 stipulates that “Kosovo is an entity … which, with its people, has unique historical, legal, cultural and linguistic attributes”.109 The more controversial and difficult question is the scope of application of such a right, i.e. its substantive content ratione materiae. The Friendly Relations Declaration, for example, is foremost describing what could be called a notion of internal self-determination, namely the right of the people living within a state to “freely determine, without external interference, their political status and freely pursue their economic, social and cultural development” without impairing “the territorial integrity or political unity of sovereign and independent states”.110 Under normal circumstances, the content of the right to selfdetermination for ethnic minorities representing a people excludes secession, but is confined to the right to preserve their specific characteristics vis-à-vis the majority and politically participate within the framework of the existing state.111 Autonomy and self-government can be means to ensure such internal self-determination, although these concepts might also be based on instruments relating to minority rights.112 As a minority representing a people within Serbia and Montenegro, the Kosovo Albanians are entitled to minority rights which derive from this internal aspect of self-determination. Defining self-determination as an internal notion reflects the reluctance of states to grant distinct ethnic groups living in a certain territory within sovereign states a right to external self-determination, for fear that this could encourage secessionist aspirations and run contrary to the principle of territorial integrity of sovereign states. Indeed, in the interest of such a fundamental principle which should not be put in jeopardy as it provides the basis for much of the stability and functionality of international relations, the internal solution is preferred and in- 109 110 111 112 UNMIK/REG/2001/9 of 15 May 2001, para. 1.1.; for more on the Constitutional Framework, see Part IV., below. Friendly Relations Declaration of 24 October 1970, A/RES/2625 (XXV), principle 5. A. Eide, “Protection of minorities: Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities”, Report to ECOSOC, Commission on Human Rights, Subcommission on the Prevention of Discrimination and Protection of Minorities, Doc. E/CN.4/Sub.2/1993/34 of 10 August 1993, para. 88; Supreme Court of Canada, see note 105, 1373; Doehring, see note 105, MN 32. A. Eide, ibid. Friedrich, Case Study – Kosovo 247 deed preferable.113 An external right to self-determination should therefore only be acknowledged under very strict conditions. Whether the right to self-determination contains a right of ethnic minorities to secede is therefore highly disputed and even if acknowledged at all, the conditions for such an external right remain controversial.114 However, the Friendly Relations Declaration and other Declarations indicate that the respect for territorial integrity should be seen as being dependent on whether the state is respecting the right to selfdetermination and whether its government represents the whole population without discrimination or distinction.115 In other words, respect for territorial integrity is linked to the conduct of the state in question. In exceptional cases, namely when a people which is part of a state becomes the subject of systematic and grave human rights violations, secession should be possible.116 Although strict conditions must be applied to such a right to secession, it is justified as a form of “selfdefense”117 or “ultimate defense”.118 To be sure, it should not be argued for a general right to secession for minority groups within states. A general right is neither recognized by state practice nor desirable as it would be “highly destabilizing at the present stage”.119 However, a right for peoples within states to secede under the outlined exceptional circumstances can help to promote the respect of states for the internal rights of minorities because misconduct could be sanctioned by the then rightful secession.120 In this sense, the right to secession could even be helpful to preserve the integrity of states as it could function as a 113 114 115 116 117 118 119 120 Tomuschat, see note 104, 16 and 17. Hannum, see note 95, 48-49; Doehring, see note 105, MN 36. Friendly Relations Declaration, see note 110, principle 5; World Conference on Human Rights, Vienna Declaration and Programme of Action, Doc. A/CONF.157/24 of 12 July 1993, reprinted in ILM 32 (1993), 1663 et seq., para. 2. Supreme Court of Canada, see note 105, 1373; C. Tomuschat, International Law: Ensuring the survival of mankind on the eve of a new century, General Course on Public International Law, 2001, 254; Doehring, see note 105, MN 37; Seidel, see note 108, 207-209. Doehring, see note 105, MN 40. Tomuschat, see note 116, 254. A. Eide, see note 111, para. 163. D. Murswiek, “The Issue of a Right of Secession – Reconsidered”, in: C. Tomuschat (ed.), Modern Law of Self-Determination, 1993, 21 et seq. (26); Seidel, see note 108, 210, S. Oeter, “Selbstbestimmungsrecht im Wandel“, ZaöRV 52 (1992), 740 et seq. (766). Max Planck UNYB 9 (2005) 248 motivator to grant autonomy and stop discrimination before it is too late.121 Despite these arguments, state practice in this regard is almost entirely lacking, a fact that demonstrates the political sensitivity of the issue.122 The complete abolition of the status of autonomy which Kosovo enjoyed under the Constitution of the Socialist FRY of 1974 in 1989 and the continuous massive violations of fundamental human rights and brutal oppression of the Albanian ethnicity over the following ten years fulfil even the strictest conditions one might demand to overcome the threshold for an internal right to self-determination to become external, i.e. to include the right to secession.123 Particularly significant in this regard are the attempts of the Serbian government to drive out the Albanian population in 1998-1999.124 Therefore, there is a strong argument that the Kosovo Albanians had a right to external self-determination in 1999 before the intervention of NATO and the establishment of UNMIK.125 b. Self-Determination and Resolution 1244 In contrast to the above considerations, all Security Council Resolutions dealing with the Kosovo crisis reaffirm the commitment of all Member States to the sovereignty and territorial integrity of the FRY.126 Resolution 1244 stresses that a solution to the crisis should take the principles of sovereignty and territorial integrity of the FRY into consideration.127 It avoids mentioning the right to self-determination. The 121 122 123 124 125 126 127 Murswiek, see note 120, 39. Tomuschat, see note 116, 254. Ibid. Doehring, see note 105, MN 40. Frowein, see note 108, 16; C. Tomuschat, “Yugoslavia’s Damaged Sovereignty over the Province of Kosovo”, in: G. Kreijen (ed.), State, Sovereignty, and International Governance, 2002, 323 et seq. (343); J.I. Charney, “Self-Determination: Chechnya, Kosovo and East Timor”, Vand. J. Transnat’l L. 34 (2001), 455 et seq. (461-462). S/RES/1160 (1998) of 31 March 1998, preamble; S/RES/1199 (1999) of 23 September 1998, preamble; S/RES/1203 (1998) of 24 October 1998, preamble; S/RES/1239 (1999) of 14 May 1999, preamble (reaffirming the integrity and sovereignty of all states in the region); S/RES/1244 (1999) of 10 June 1999, preamble and para. 1 in conjunction with Annexes 1 and 2, para. 8. S/RES/1244 (1999) of 10 June 1999, para. 1 in conjunction with Annexes 1 and 2, para. 8. Friedrich, Case Study – Kosovo 249 only indicator in favour of a right to self-determination could be the reference in Resolution 1244 to the “people of Kosovo”.128 However, neither is such terminology consistently used – other parts refer to the “Kosovo population”129 or “inhabitants of Kosovo”130 – nor does it call them “a people”. From this, it is safe to conclude that a right to secession or an external right of self-determination for the Kosovo Albanians is not recognised in Resolution 1244.131 At the same time, Resolution 1244 seems to propagate an internal solution when it mandates UNMIK to establish “substantial autonomy and meaningful self-administration”132 and “self-government”133 in Kosovo. The interpretation of such terms in the light of selfdetermination is not self-evident. The emphasis on autonomy could simply reflect a tendency in international law to address minority concerns through the recognition of autonomy.134 Accordingly, the Security Council’s support for substantial autonomy for Kosovo in the absence of any reference to self-determination could be understood as testimony for the growing international support for minority protection but not necessarily for the right of self-determination.135 However, all three concepts, i.e. autonomy, self-administration and self-government are at the same time describing a framework which allows the people of Kosovo a certain legally protected autonomous sphere in which it has the decision-making power to pursue its own development and preserve its characteristics. Despite the absence of a clear reference to selfdetermination, all of these concepts can thus be understood as expressions of the acceptance that the Kosovo Albanians have an internal right to self-determination.136 Such a conclusion is supportive of the qualification of the Kosovo Albanians as a people who are generally bearers of the right to self-determination. 128 129 130 131 132 133 134 135 136 Ibid., para. 10. Ibid., preamble. Ibid., para. 10. Von Carlowitz, see note 33, 365. S/RES/1244 (1999) of 10 June 1999, preamble. Ibid., preamble and para. 11 (a). Quane, see note 108, 227. Bothe/ Marauhn, see note 26, 156. C. Stahn, “Constitution Without a State: Kosovo Under the United Nations Constitutional Framework for Self-Government”, LJIL 14 (2001), 531 et seq. (541); Tomuschat, see note 125, 345; von Carlowitz, see note 33, 366. 250 Max Planck UNYB 9 (2005) What is more important, however, is that Resolution 1244 does not recognise an external right to self-determination even despite large-scale discriminations and human rights violations. This reflects previous state practice in its reluctance to recognise such a right for ethnic groups within states.137 The approach displays the sensitivity of the issue especially for some of the permanent members of the Security Council which fear for their own national unity, but also corresponds to the objectives of the Security Council acting under Chapter VII, namely to act with a view to establish peace and security, but not to decide on issues of self-determination and territoriality. Secession is avoided as long as other options to achieve these aims exist. The experience with Kosovo indicates that such other options include the complete take-over of the governmental powers of the country by the international community and the de facto suspension of sovereignty at least for an interim period. At the same time, Resolution 1244 reiterates that autonomy, selfgovernment and self-administration are to be promoted “pending a final settlement”138 and that provisional institutions are established “pending a political settlement”.139 It must be deduced from this wording that Resolution 1244 does not make any final and binding determinations on the future status of Kosovo.140 It does not rule out the possibility of future independence for the Kosovo Albanians, which would amount to recognition of their external right to self-determination. The core issue of the conflict, namely the question of independence or autonomy for Kosovo, has therefore not been permanently solved.141 Although politically understandable, the resulting uncertainty over the future has been, as will be seen in the following, a considerable burden for Kosovo and for UNMIK. It has been detrimental to stability and has made it considerably harder for UNMIK to implement its policies while maintaining the support of the population.142 137 138 139 140 141 142 Tomuschat, see note 116, 250 and 254. S/RES/1244 (1999) of 10 June 1999, para. 11 (a). Ibid., para. 11 (c). Stahn, see note 136, 539; Independent International Commission on Kosovo, see note 2, 259 et. seq. Yannis, see note 30, 68. K. Eide, “Report on the situation in Kosovo”, in: Letter dated 6 August 2004 from the Secretary-General addressed to the President of the Security Council, Doc. S/2004/932 of 30 November 2004, Annex 1, Enclosure, para. 5; International Crisis Group, “Kosovo: Toward Final Status”, Europe Re- Friedrich, Case Study – Kosovo 251 c. Self-Determination and Future Status The status of uncertainty which frustrates Kosovo Albanians, Serbs, efforts of UNMIK and potential investors alike must be resolved as soon as possible if Kosovo is to move ahead and be saved from the danger of plunging back into turmoil.143 As preparations for future status talks are expected to begin in the second half of 2005, the question must be raised what legal parameters must be added to the highly political discussions about such status. In particular, it is essential to discuss and outline the role of the right of self-determination. As could be seen from the considerations above, the massive human rights violations and the systematic denial of rights before 1999 satisfied the criteria that justify the exercise of an external right to selfdetermination. However, the response of the international community helped to end these violations and guaranteed the protection of the people of Kosovo by means of a territorial administration. The mandate of Resolution 1244 for the interim period can be understood as a confirmation of an internal but not an external right to self-determination. In addition, the political situation in Serbia and Montenegro has changed to a democratic government. In light of these new circumstances, which differ considerably from the situation before the intervention, one could argue that internal self-determination must again take precedence over a right to external self-determination that might have existed in 1999.144 There are good reasons to make such an argument. With respect to the importance of the principles of territorial integrity and sovereignty, it was previously seen that external self-determination for minority groups should only apply in exceptional cases as a form of self-defence. Therefore, now that the human rights violations have ceased and that democracy has reached Belgrade, the need for such a drastic measure seems to have vanished. But can such a change of circumstances justify that a right that has come into existence at one point in the past has ceased to exist? Even if a change in circumstances was accepted as a fact which could entail such consequences, it is important to note that the international intervention has only stopped the human rights violations, but otherwise created a de facto separation of Serbia and Montenegro 143 144 port No. 161 of 24 January 2004, available at: http://www.crisisweb.org/ home/index.cfm (last visited 1 June 2005). International Crisis Group, see note 142, 1. Zimmermann/ Stahn, see note 108, 456. 252 Max Planck UNYB 9 (2005) and Kosovo. It has not led to a situation which could be regarded as a functioning autonomy within Serbia and Montenegro. Therefore, no circumstances have arisen which could be considered as proof that the right to self-determination will be secured in the future. Of course, the regime change in Serbia and Montenegro encourages hopes in that direction, but this is not sufficient, especially as it would be difficult to explain how an internal change of government could lead to a reevaluation of the international rights of the Kosovo Albanians. At a minimum, it is hard to perceive how a people should be required under international law to be part of and pay allegiance to a state that has considered them an enemy and has attempted to rid itself of this part of the population.145 A future settlement must therefore at least pay tribute to the right to self-determination by respecting the will of the people of Kosovo. There can be no imposed solution without some sort of democratic participation of the people of Kosovo, be it through a referendum or elections.146 Any imposed solution could neither be understood as being in line with the right to self-determination nor would it promise to be a politically feasible solution in the long run.147 Given the clear wish for independence and distrust of Belgrade among Kosovo Albanians, which represent over 90 per cent of Kosovo’s population, independence seems to be the most likely outcome.148 Of course, one must not neglect other legally relevant principles or purposes of the international legal order expressed in the UN Charter. Regarding the maintenance of peace and security, some considerations seem to strongly favour an internal solution. One fear is that independence for Kosovo could encourage renewed violence in the whole region, in particular Montenegro and Macedonia, and encourage nationalist Albanian demands for a Greater Albanian state, thereby endangering the territorial integrity of the neighbours.149 Besides, Kosovo’s independence could set a potentially dangerous precedent in international law in general. However, while it is important to take the potential dangers to peace and security into account, it must be kept in mind that the integration of Kosovo into Serbia and the FRY against the will of the people has in the past not been able to secure peace and security in the region. A reintegration into Serbia and Montenegro or a partition could 145 146 147 148 149 Tomuschat, see note 116, 255. Frowein, see note 108, 17. International Crisis Group, see note 142, 25. Id., 6 and 7. Ibid.; Independent Commission on Kosovo, see note 2, 269. Friedrich, Case Study – Kosovo 253 equally have unintended consequences such as further disillusionment of the Albanian population and entail renewed radicalisation within Kosovo. To a certain extent, the potential negative political effects of the exercise of the right to self-determination, for example a domino-effect within the region leading to the creation of a “Greater Kosovo”, could be mitigated by conditions linked to independence. One of them could be the respect and the integrity of established frontiers. An international legal rule in support of such a condition derives from the uti possidetis juris principle, according to which established frontiers must be respected and not be subject to changes at the time of independence.150 Although Kosovo is not a case of decolonisation and was not a former state of the FRY, there is no reason why uti possidetis should not apply to Kosovo, since it is recognised to be “a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”.151 Intended to provide for stability and the maintenance of the territorial status quo, the principle must be taken into account “in the interpretation of the principle of self-determination of peoples”.152 Applied to Kosovo, this means that the territorial status quo of the region must not be reconsidered and challenged by any of the parties involved in the case of independence, except by agreement of all concerned states.153 Fervent opposition to independence derives from the fear that independence would be tantamount to eventual expulsion and continued discrimination of the minority groups.154 To address these fears, a po- 150 151 152 153 154 This principle has been used by the ICJ in respect of decolonisation and by the Arbitration Committee for Yugoslavia regarding the independence of former republics of Yugoslavia. See Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, 554 et seq. (565); Opinion No. 2 of the Badinter Arbitration Committee, included as Appendix in: A. Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples”, EJIL 3 (1992), 178 et seq. (183-184). ICJ, Frontier Dispute, see note 150. ICJ, see note 150, 567. Compare for application of the uti possidetis juris principle to Kosovo Frowein, see note 108, 18-19. Independent International Commission on Kosovo, see note 2, 269. 254 Max Planck UNYB 9 (2005) tential solution could, again, be seen in conditional independence.155 The exercise of (internal or external) self-determination encompasses the task to secure public order and human rights. If such protection cannot be provided or guaranteed, the Kosovo Albanians could risk forfeiting their right to self-determination.156 Therefore, a condition that could be demanded from Kosovo Albanians in an agreement of “conditional independence” is the protection and respect of minorities, including the Serb community within Kosovo. In sum, the legal analysis as well as political factors suggest that Kosovo could indeed become the first practical case to confirm as part of the law on self-determination a right to secession in extreme instances of grave and systematic human rights violations. This practice would reflect what had been described in the Friendly Relations Declaration and the decision of the Supreme Court of Canada, namely that self-determination is to be pursued internally within the larger state unless the extremely discriminatory conduct of that state excludes such a possibility. In this sense, the case could confirm a law on selfdetermination that includes a defence and deterrence mechanism with the potential to help ensure human rights protection and the internal exercise of self-determination in the future. IV. Implementing Resolution 1244: Six Years of UNMIK Practice in Overview As seen above, the mandate of the international community for UNMIK demands nothing less than to completely rebuild Kosovo and to establish a new political system. Analysing the implementation practice of such an enormous variety of tasks that range from the provision of electricity to settling property issues157 is far beyond the scope of this article. Still, some important aspects should receive attention. The choice of these aspects should not divert attention from the fact that in many respects, UNMIK has worked very effectively and suc155 156 157 See for the proposal of granting independence under certain conditions Independent International Commission on Kosovo, see note 2, 271-273; International Crisis Group, see note 142, 25-27. Tomuschat, see note 125, 346. This important issue is addressed by L. von Carlowitz, “Settling Property Issues in Complex Peace Operations: The CRPC in Bosnia and Herzegovina and the HPD/DD in Kosovo”, LJIL 17 (2004), 599 et seq. Friedrich, Case Study – Kosovo 255 cessfully. However, for the sake of learning lessons from Kosovo for other missions, the following will concentrate on some of the key objectives of UNMIK that are at the same time vital for success and continue to pose problems for the administration. 1. Building of Institutions for Self-Government and Transfer of Authority UNMIK’s mandate is, inter alia, to organize and oversee the development of provisional institutions for democratic and autonomous selfgovernment, and to transfer its administrative responsibilities as these institutions are established. While overseeing and supporting the provisional institutions for self-government, it shall progressively transfer authority to them and oversee the final transfer of authority from the provisional institutions to the institutions to be established in conformity with the final settlement.158 Resolution 1244 does not provide for a specific timetable, nor has UNMIK ever set one. After five years, it still has not transferred all administrative authority to the newly built institutions and has not started the political process towards a final settlement. UNMIK’s political governance in pursuit of this objective during the last five years can be roughly divided into three phases. In a first phase, lasting from July 1999 to January 2000, executive and legislative powers were entirely taken over by UNMIK and the SRSG; it constituted during this time a fully-fledged direct administration without meaningful local participation.159 In a second phase lasting from January 2000 to May 2001, UNMIK allowed local representatives to have limited participatory rights in administrative matters. The third phase which has lasted from the first general elections to the Kosovo Assembly in November 2001 until today is defined by the “Constitutional Framework for provisional self-government in Kosovo”, promulgated by the SRSG in May 2001.160 158 159 160 S/RES/1244 (1999) of 10 June 1999, para. 11 (c), (d). For the terminology of direct full-fledged administration, see de Wet, see note 34, 292. UNMIK/REG/2001/9 of 15 May 2001. 256 Max Planck UNYB 9 (2005) a. Phase 1 (July 1999 – January 2000): No Meaningful Participation During this phase, UNMIK carried out its governmental powers on its own, only allowing for some consultative and advisory participation. An initial but tentative step towards local participation was the creation of the Kosovo Transitional Council (KTC) in July 1999. It included twelve representatives of political parties and ethnic groups and could make recommendations regarding UNMIK’s decision-making process. Similarly, the Joint Advisory Council, established due to pressure from local judges and prosecutors, had the consultative task to review and comment on draft legislation and propose new legislation. It was composed of 20 national and international legal experts.161 An advisory and consultative role in the administration of the judiciary was also given to a local Advisory Judicial Commission.162 The Commission advised the SRSG on the appointment of judges and was consulted in cases of removal of national judges and prosecutors. However, full authority for the appointment and removal of judges remained with the SRSG who had wide discretion in this regard.163 b. Phase 2 (January 2000 – November 2001): Local Participation in Administrative Decision-Making The sharing of provisional administrative management between UNMIK and local community representatives under the Joint Interim Administrative Structure (JIAS)164 was intended to dissolve the “shadow government” which was emerging in form of a “Provisional Government of Kosovo” and a “Presidency of the Republic” as well as nascent local administrative structures.165 Under the JIAS, UNMIK enlarged the KTC to better reflect the pluralistic composition of Kosovo.166 It also created an Interim Administrative Council (IAC) which functioned as an advisory cabinet to the SRSG and which was composed of eight members, four of whom were the Deputy SRSGs and four of whom were from Kosovo, including 161 162 163 164 165 166 Wagner, see note 26, 134. UNMIK/REG/1999/7 of 7 September 1999. UNMIK/REG/2000/6 of 15 February 2000. UNMIK/REG/2000/1 of 14 January 2000. Von Carlowitz, see note 33, 375; Yannis, see note 30, 77. UNMIK/REG/2000/1 of 14 January 2000, para. 2.1. Friedrich, Case Study – Kosovo 257 three Kosovo-Albanians and one Serb.167 The IAC could make recommendations to the SRSG for amendments to the law and for new regulations.168 In case of disagreement with these, the KTC could make different recommendations to the SRSG who then decided.169 However, the SRSG, in the end, decided alone; he only had to explain his reasons in writing should he decide contrary to a three-quarters majority of the IAC.170 The procedures gave both Councils only a very limited role, but were useful as a testing ground for democratic procedures and gave the local population further possibilities to voice their opinions. The novelty which gave its name to the JIAS was the integration of SRSG-appointed Kosovars serving as co-heads alongside an UNMIK official in leading the 20 newly established Administrative Departments.171 These departments, which covered all areas of the administration,172 implemented policy guidelines of the IAC and could make policy recommendations to their respective Deputy SRSG.173 The local administration was, from January 2000 onwards, performed by Municipal Administrative Boards headed by an UNMIK Municipal Administrator. He appointed the members, thereby trying “to the extent possible” to include Kosovo members. The Municipal Administrator also supervised the institutions of self-government which were established on the municipal level.174 Municipal Assemblies were directly elected in October 2000, and again in 2002 and 2004. They are authorised to manage a considerable amount of their own local affairs, such as urban planning and building, public services, education, health care and environmental issues.175 This includes the power to promulgate local municipal regulations.176 The transfer of authority to the Municipal Assemblies was the first real step of UNMIK in establishing provisional institutions of selfgovernment and in transferring power. However, the SRSG retained the 167 168 169 170 171 172 173 174 175 176 Ibid., section 4. Ibid., para. 3.1. Ibid., para. 2.5. Ibid., para. 6.2. Ibid., section 7. From education and culture to media development and justice, see ibid., para. 7.1. in conjunction with Annex. Ibid., paras. 7.2 and 7.3. UNMIK/REG/2000/45 of 11 August 2000. UNMIK/REG/2000/45 of 11 August 2000, paras 3.1 – 3.3. Ibid., para. 4.1. Max Planck UNYB 9 (2005) 258 final decision-making power in all areas. He can “set aside” decisions taken by the municipality if they are contravening the applicable law or if they are not taking sufficient account of the interests and rights of minorities.177 This already indicates what is later confirmed under the Constitutional Framework, namely that the protection of minority rights is a problematic issue which gives rise to the retention of power of the SRSG. c. Phase 3 (November 2001 – today): Kosovo-Wide Provisional Institutions of Self-Government A major milestone in the five years of UNMIK practice were the first Kosovo-wide elections on 17 November 2001 of the Kosovo Assembly. The Kosovo Assembly is the main organ of the “provisional institutions of self-government” (PISG) established under the Constitutional Framework for Provisional Self-Government in Kosovo178 with a view to gradually transfer power from UNMIK and thereby establish autonomous institutions. The 120-seat Assembly is the legislative body for Kosovo within the areas of responsibilities transferred progressively by UNMIK. Such powers include all fields of governmental affairs, ranging from economic and financial policy to transport and judicial affairs.179 The devolution of these powers to the Assembly was completed in December 2003 when the responsibilities within the fields of environment, media, culture and agriculture were transferred.180 The SRSG continues to retain a number of important powers which are discharged by UNMIK directorates. These include, inter alia, the ultimate authority on the budget and on the appointment of judges as well as responsibility over the Kosovo Protection Corps (former UÇK), monetary policy, customs, international relations, property administration and the coordination with KFOR.181 Some of these reserved powers are attributes of sovereignty, some are not. In addition, and very importantly, the ultimate authority rests with the SRSG who oversees and can take “appropriate measures”, including dissolving the Assembly or not signing its laws, if actions of the provisional institu177 178 179 180 181 Ibid., para. 47.2. UNMIK/REG/2001/9 of 15 May 2001. Ibid., chapter 5. Ibid. Ibid., chapter 8. Friedrich, Case Study – Kosovo 259 tions run counter to the provisions of Resolution 1244.182 The different SRSGs have made use of this ultimate authority in numerous cases,183 although the practice was rather cautious when compared to the High Representative in Bosnia-Herzegovina. For instance, the SRSG denied the Kosovo Assembly the right to more decision-making power through amendment of the Constitutional Framework in July 2004.184 The example reflects the tensions that have existed from the beginning between local leaders who demanded a further transfer of authority and the policies of UNMIK to maintain large amounts of authority until certain standards are met by the existing institutions.185 Further responsibilities of the Kosovo Assembly are the election of a President of Kosovo and the government which is led by a Prime Minister. While the President has a merely representative role, the government can propose laws and is the executive body.186 Overall, the Constitutional Framework is remarkable for its detailed protection mechanisms for members of minorities. Twenty out of the 120 seats of the Assembly are reserved for minority communities.187 Six members of the Assembly can submit a motion claiming that a proposed law would violate vital interests of their community.188 In addition, at least two ministers must be from a non-majority community.189 While these guarantees helped to convince Serbs to participate in the 2001 elections, the elections of 23 October 2004 were a setback in this regard. Only one percent of the potential Serb electorate went to the polls.190 In fact, Serbs have not participated in any of the institutions since the March violence. This underlines that the political integration especially of the Serb community continues to be a challenge just as it has been over the past five years.191 182 183 184 185 186 187 188 189 190 191 Ibid., chapter 12. Doc. S/2002/1376 of 19 December 2002, para. 6. UNMIK news of 8 July 2004, available at: www.unmik.org (last visited 1 June 2005). See already Doc. S/2002/1376 of 19 December 2002, para. 6. UNMIK/REG/2001/9 of 15 May 2001, chapter 9. Ibid., para. 9.1.3.b). Ibid., para 9.1.39. Ibid., para. 9.3.5. Doc. S/2004/907 of 17 November 2004, para 7. See already Doc. S/2001/926 of 2 October 2001, para. 5. 260 Max Planck UNYB 9 (2005) The Constitutional Framework is not intended to be a constitutional document.192 It is not the highest ranking norm, but shares the same rank with other Regulations. UNMIK thus remains within the limits of Resolution 1244 insofar as it does not allow Kosovo to have a constitution, because this would have to be seen as a step towards an independent final status without a previous political settlement and run contrary to Resolution 1244.193 In sum, the SRSG not only retains the ultimate authority, but also retains important powers. While the retention of the ultimate authority with its sanctioning-capacity is a necessary mechanism to effectively “oversee” the provisional institutions in conformity with Resolution 1244, retaining important reserved powers that are not attributes of sovereignty is not a legal necessity. It could even be argued that Resolution 1244 rather foresees a complete transfer of powers except for some ultimate monitoring authority and powers that are attributes of sovereignty. With regard to facilitating the final status discussion, UNMIK has pursued a benchmark policy, i.e. to establish certain benchmarks that must be met before the final status discussion and the question of the final transfer of authority can begin. Although having already been applied since 2001, this so-called “standards before status” policy was further concretised in December 2003 with the publication of the “Standards for Kosovo”,194 followed by the “Kosovo Standards Implementation Plan” of 31 March 2004.195 These documents describe democratic standards demanding inter alia functioning democratic institutions, rule of law, establishment of complete freedom of movement within Kosovo, sustainable returns and minority protection and a legal framework for a competitive economy as well as direct Belgrade-Pristina dialogue. This dialogue had been interrupted for one year due to Belgrade’s reluctance after the March violence.196 However, some progress could be reported by May 2005. 197 192 193 194 195 196 197 Stahn, see note 136, 543-549. Ibid., 549. UNMIK/PR/1078 of 10 December 2003, available at: www.unmik.org (last visited 1 June 2005). Kosovo Standards Implementation Plan of 31 March 2004, available at: www.unmik.org (last visited 1 June 2005). See Doc. S/2004/907 of 17 November 2004, para. 47; Doc. S/2005/88 of 14 February 2005, para. 13. Doc. S/2005/335 of 23 May 2005, para. 8. Friedrich, Case Study – Kosovo 261 The persistent problems especially with regard to sustainable return, minority protection and the freedom of movement for these groups have been outlined above. With this strategy, UNMIK makes use of its discretion when to start the process for the final status of Kosovo by linking it to the fulfilment of these standards. Additionally, the “standards before status” policy aims to ensure that Kosovo is sufficiently equipped for democratic selfgovernment before further devolution of power. The policy reflects an approach to conflict-resolution and peace-building that could be called an “earned sovereignty” approach. This approach describes that starting from an initial phase of shared sovereignty or de facto sovereignty by international actors, sovereign powers and authority will be progressively transferred to newly established institutions, until the final status will be decided upon. The transfer of power and determination of final status will possibly be linked to certain standards of human rights and democracy which must be implemented and complied with by the newly established institutions.198 Although generally useful as a tool to mitigate uncertainties and guarantee the implementation of certain standards, it is key to the success of the approach that authority is actually continuously transferred as progress is being made.199 In Kosovo, however, transfer of authority has been too slow and insufficient, even if motivations of the international actors for a more careful pursuit of these policies is understandable in light of the political instabilities in Serbia and Montenegro after the fall of Milošević.200 Furthermore, it seems worth considering whether the uncertainty over the final status has not diminished the incentives for the Kosovo Albanians to implement the standards. Be this as it may, it is clear that the “standards before status” approach has never been accepted by the leaders of Kosovo as they have never considered the standards their own goals. One possible explanation for 198 199 200 See generally J.R. Hooper/ P.R. Williams, “Earned Sovereignty: The Political Dimension”, Den. J. Int’l L. & Pol’y 31 (2003), 355 et seq.; P.R. Williams/ F.J. Pecci, “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination”, Stanford J. Int’l L. 40 (2004), 347 et seq. (350). P.R. Williams, “The Road to Resolving the Conflict over Kosovo’s Final Status”, Den. J. Int’l L. & Pol’y 31 (2003), 387 et seq. (424). Ibid., 415. Max Planck UNYB 9 (2005) 262 these difficulties could be that the approach was applied too statically and that benchmarks were set too high.201 2. Law and Order UNMIK and KFOR have made tremendous efforts in order to maintain law and order by establishing a multi-ethnic judiciary and a local police force, the Kosovo Police Service (KPS).202 Although the security situation had been continuously improving over the years,203 the outbreak of violence in March 2004 against minority communities and international security forces has demonstrated the continuous fragility of the situation and represented a major setback to stabilisation efforts. The development cannot be dismissed as a singular incident, because it was the result of “an organised, widespread and targeted campaign”.204 It testifies to what remained one of the main challenges for UNMIK and KFOR over five years, namely the ethnically motivated violence against Kosovo’s minority communities.205 What has been called a “failure to protect”206 by UNMIK and KFOR in March 2004 certainly has many causes, but one contributing factor was possibly the lack of coordination between the different institutions responsible for security matters (KFOR; UNMIK police, KPS).207 Detrimental in this regard might have been the parallel structure of KFOR and UNMIK. A unified command for security forces as in East Timor might be a better approach for handling such emergency situations. 201 202 203 204 205 206 207 See for this question also Part VI. and VII., below. The Kosovo Police Force was more numerous than the international UNMIK police by 2002, see Doc. S/2002/1376 of 19 December 2002, para. 12. A 27 per cent drop in the crime rate was reported in the first 3 years, see Doc. S/2002/1376 of 19 December 2002. Doc. S/2004/248 of 30 April 2004, para. 2. This has been a continuous problem from the very beginning of the mission. See already Doc. S/1999/779 of 12 July 1999, para. 5 and Doc. S/2001/926 of 2 October 2001, para. 7. Compare for this assessment the recent report by Human Rights Watch, “Failure to Protect: Anti-Minority Violence in Kosovo, March 2004”, Human Rights Watch 16, No. 6 (D) of July 2004, 3, available at: http://www.hrw.org/reports/2004/kosovo0704 (last visited 1 June 2005). Human Rights Watch, see note 206, 11. Friedrich, Case Study – Kosovo 263 As one of the main incentives for extremists was to drive the remaining Serbs from Kosovo, one should critically ask whether the uncertainty of the future status of Kosovo has not been counterproductive with respect to mitigating ethnic tensions. For example, the feeling that Serbs are holding up the process for determining the future status has fuelled the support for extremists.208 3. Post-Conflict Justice After the end of the conflict, the physical infrastructure of the judicial system was largely destroyed. Qualified personnel was scarce, unwilling or out of practice due to the restrictions for ethnic Albanian lawyers under the judicial system of the FRY.209 As a consequence, UN authorities had to rely on foreign lawyers and judges in support of local personnel in order to reinstall the justice system. The result was the establishment of mixed courts, i.e. courts which have mixed compositions of international and local judges. War crimes were largely dealt with by these mixed courts. Although international judges were in the minority during an initial phase, all war crimes have been prosecuted mostly by international prosecutors and judged by tribunals in which international judges have disposed of the majority from December 2000 onwards.210 Only the worst atrocities are being pursued by the ICTY, which is exercising its jurisdiction also in respect of Kosovo, but which would otherwise be overburdened by the sheer number of cases.211 Overall, the utilisation of mixed courts was a response to the shortcomings of a purely international or a purely national approach. Although the model has worked rather well in Kosovo, it can be still im- 208 209 210 211 K. Eide, see note 142, para. 5. Stahn, see note 26, 174-175. Compare UNMIK/REG/2000/64 of 15 December 2000. ICTY, Statement by Carla del Ponte Prosecutor of the International Criminal Tribunal for the Former Yugoslavia on the Investigation and Prosecution of Crimes Committed in Kosovo, PR/P.I.S./437-E, 29 September 1999, available at: http://www.un.org/icty/latest/index.htm (last visited 1 June 2005). 264 Max Planck UNYB 9 (2005) proved if it is strategically prepared and better coordinated from the outset and not built ad hoc without much preparation as in Kosovo.212 A similar model of mixed courts has been applied in East Timor213, Sierra Leone214 and is foreseen in the plans for the Extraordinary Chambers in the Courts of Cambodia (ECCC).215 The cases of Kosovo, East Timor and Sierra Leone indicate that mixed courts become necessary in situations of emergency following a break-down of the judicial system. They can be useful and important tools to bring about justice and reconciliation, even if only supplementing international criminal courts such as the ICTY or, in the future, the ICC. With respect to the latter, mixed courts could ensure the functioning of the complementarity mechanism.216 They are arguably advantageous to other solutions insofar as they have the potential to provide for greater legitimacy in the eyes of the population and improve the capacity of the domestic legal institutions.217 In addition, the fact that trials are held on the territory with the participation of locals, arguably enhances reconciliation.218 212 213 214 215 216 217 218 G.L. Naarden/ J.B. Locke, “Peacekeeping and Prosecutorial Policy: Lessons from Kosovo”, AJIL 98 (2004), 727 et seq. (743). M. Benzing, in this Volume. M. Goldmann, in this Volume. See L. Keller, in this Volume; for a good comparison of the different approaches and an assessment see C.P.R. Romano, “Mixed Jurisdictions for East Timor, Kosovo, Sierra Leone and Cambodia: The Coming of Age of Internationalized Criminal Bodies?”, The Global Community: Yearbook of International Law & Jurisprudence, Vol. I (2002), 97 et seq. See A. Cassese, “Mixed Courts and Tribunals Trying International Crimes as an Alternative to Other Options for Fighting Impunity”, in M.D. Đilas/ V. Đerić (eds), The International and the National: Essays in Honour of Vojin Dimitrijević , 2003, 111 et seq. (121). L.A. Dickinson, “The Promise of Hybrid Courts”, AJIL 97 (2003), 295 et seq. (310); for more on these issues see Stahn, see note 26, 174-176; H. Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor”, AJIL 95 (2001), 46 et seq. Cassese, see note 216, 117; for details on the difficulties facing mixed courts, see F. Egonda-Ntende, “Justice after Conflict: Challenges Facing ‘Hybrid’ Courts: National Tribunals with International Participation”, Journal of International Law of Peace and Armed Conflict 18 (2005), 24 et seq. Friedrich, Case Study – Kosovo 265 4. Economy The economic reconstruction pillar headed by the EU has successfully established a banking sector and concentrated its efforts on privatisation of the formerly socialist economy.219 Despite high growth rates in the first three years,220 the economy is far from being self-sustaining.221 It suffers inter alia from decreasing international aid and lack of private investment. Again, the unresolved status of Kosovo has added to the already difficult situation, because it has hindered access to lending from international financial institutions222 and made it difficult for Kosovo to be an equal trading partner with other countries. For example, Kosovo cannot fully participate in the European Union’s Stabilisation and Association Process.223 However, creative solutions have solved some of these difficulties. The lack of eligibility to participate in the European Union’s Stabilisation and Association Process was overcome by creating the Stabilisation and Association Tracking Mechanism (STM), a joint working group of officials from the European Commission, UNMIK and the Kosovo Provisional Institutions. The STM pursues the goal of promoting reforms and standards with a view to prepare Kosovo for closer integration into the EU. It is connected to substantial financial aid.224 The precariousness of the economic situation is demonstrated by the 60-70 per cent unemployment rate which is a primary source for frustration and disillusionment.225 Non-Albanian minorities continue to be the most severely affected (90 per cent unemployment). To make matters worse, the economy is expected to downslide even more in the near future as international aid will be declining.226 219 220 221 222 223 224 225 226 The privatisation process is previewed to be completed by late 2006, see Doc. S/2004/907 of 17 November 2004, para. 38. Doc. S/2002/1376 of 19 December 2002, para 32. Doc. S/2004/613 of 30 July 2004, para. 42. Doc. S/2002/1376 of 19 December 2002, para. 33. Yannis, see note 30, 72. For more information on the STM and the relations between the EU and Kosovo, see http://europa.eu.int/comm/external_relations/see/fry/kosovo/ index.htm (last visited 1 June 2005). K. Eide, see note 142 , para. 43. K. Eide, see note 142, para.12. Max Planck UNYB 9 (2005) 266 5. Return of Refugees Most of the refugees of the majority group, i.e. the ethnic Albanians, returned to Kosovo in the first year.227 Although considerable efforts for example by means of donor funding programs (e.g. the 2003 Strategy for Sustainable Returns) and information campaigns have been pursued, the low figures of sustainable minority returns continued to be a consistent source of concern for UNMIK and minority leaders.228 Part of the problem can be seen in the unresolved final status, because minority members fear the possibility of independence. The slow progress experienced a major blow in March 2004. As a result of the violence, more minority community members left Kosovo in 2004 than returned to it.229 6. Protection and Promotion of Human Rights It is obvious that the problem of minority returns is part of the greater issue of human rights deprivations of minorities. Non-Albanian minorities have to live under serious constraints regarding their freedom of movement and suffered large-scale human rights deprivations regarding life, physical integrity, and with respect to their property during the March 2004 violence.230 The establishment of the Ombudsperson Institution for Kosovo, which can receive complaints by individuals and investigate complaints from any person or entity in Kosovo,231 was a major improvement. It increases transparency and has an important watchdog function. A considerable step forward with respect to human rights protection was also taken by UNMIK when it entered into two monitoring 227 228 229 230 231 Doc. S/2000/538 of 6 June 2000, paras 70 et seq. Doc. S/2001/926 of 2 October 2001, paras 36-38; Doc. S/2002/1376 of 19 December 2002, para. 9; Doc. S/2003/113 of 29 January 2003, paras 38 and 39. Doc. S/2004/907 of 17 November 2004, para. 29. For details see Ombudsperson Institution in Kosovo, Fourth Annual Report 2003-2004 of 12 July 2004, 18- 20, available at: www. ombudspersonkosovo.org (last visited 1 June 2005). UNMIK/REG/2000/38 of 30 June 2000, para. 3.1. Friedrich, Case Study – Kosovo 267 agreements with the Council of Europe.232 Under one of these agreements, UNMIK will provide the Council of Europe’s Committee of Ministers with relevant information as they will monitor compliance with the Framework Convention for the Protection of National Minorities. The other agreement is related to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and allows an independent committee of experts to examine the treatment of persons deprived of their liberty in Kosovo. Again, this is likely to increase pressure on the public authorities to comply with the standards of the convention. V. Legality of the Implementation Practice The issue of legality is linked to the question which international legal rules are applicable to international administrations. Defining the legal limitations is of utmost importance when dealing with cases in which the UN has basically taken up the functions of the state. The issue of legality is also important insofar as it is linked to the legitimacy of the mission.233 The following discussion shall contribute to establishing awareness for these questions and outline the legal limits using the example of Kosovo. 1. Territorial Integrity and Sovereignty of Serbia and Montenegro Being a sub-organ of the United Nations,234 UNMIK is bound by the purposes and principles of the United Nations which are binding upon the organisation according to Article 2 of the UN Charter. Although not an organ of the United Nations, KFOR is mandated by the UN and is consequently equally bound to the purposes and principles of the UN Charter in the pursuit of its objectives. The obligation to respect 232 233 234 UNMIK/PR/1216 of 23 August 2004; available under http://www. unmikonline.org/press/2004/pressr/pr1216.pdf (last visited 1 June 2005). See below; Perritt, see note 99, 428. It is debated whether UNMIK is a sub-organ of the Secretariat or of the Security Council, but for present purposes it is sufficient to agree upon the fact that it is a sub-organ of the United Nations. Compare for the debate Ruffert, see note 27, 622; Irmscher, see note 26, 355. Max Planck UNYB 9 (2005) 268 the sovereignty and territorial integrity of Serbia and Montenegro can be deduced not only from Article 2 (1) UN Charter,235 but is also reflected in Resolution 1244.236 Although UNMIK has been careful not to preclude final status talks,237 it has taken numerous decisions which do not testify to great respect for the sovereignty of Serbia and Montenegro.238 For example, it has introduced a customs system which is completely independent from that of Serbia and Montenegro,239 issued passports for Kosovars and introduced a new currency,240 all of which are decisions that lie at the heart of sovereignty. This implementation practice of UNMIK reflects a wide interpretation of the powers given by Resolution 1244 which in many aspects cannot be reconciled with the de jure sovereignty of the FRY guaranteed inter alia by Resolution 1244. The government of the FRY protested against these violations in a detailed memorandum to the Security Council in 1999.241 2. Principle of Self-Determination UNMIK, as an organ of the United Nations, mandated by the Security Council, is bound by the principle of self-determination as stipulated in Articles 1 (2) and 55 in conjunction with Article 2 of the UN Charter. As shown previously, many voices foremost understand selfdetermination outside of the colonial context as a principle vesting peoples with a right to internal self-determination.242 Internal self- 235 236 237 238 239 240 241 242 See for the interpretation of sovereign equality as including sovereignty and territorial integrity for example the Friendly Relations Declaration, see note 110, principle 5. See above at Part III. 2. For example, the Constitutional Framework cannot be seen as a Constitution for Kosovo, one reason for that being that it is not the supreme law of the territory, but remains on the same hierarchical level as other UNMIK Regulations. Yannis, see note 30, 70. UNMIK/REG/1999/3 of 31 August 1999. UNMIK/REG/1999/4 of 2 September 1999. Memorandum of the FRY, see note 81. See only A. Rosas, “Internal Self-Determination”, in: C. Tomuschat (ed.), Modern Law of Self-Determination, 1993, 225 et seq.; Supreme Court of Canada, see note 105, 1373. Friedrich, Case Study – Kosovo 269 determination or a “federal” 243 right to self-determination can have two main implications. First, the people of a state have the right to constitute their political system, i.e. decide on the form of government.244 In this sense, the right might encompass an evolving right to democratic governance, i.e. the right of all citizens of all nations to determine their political status through democratic participation.245 Second, internal self-determination describes the right of a minority within a state to protect and preserve their characteristics vis-à-vis the majority, i.e. through autonomy and self-government.246 It becomes obvious that the latter aspect harbours the potential to find compromises between the preservation of sovereignty and the accommodation of group rights in cases of conflict. However, despite such promising implications, at least the group rights dimension of an internal right to self-determination must be still considered in statu nascendi.247 Nevertheless, Kosovo arguably represents one of the first cases in which the international community by means of Resolution 1244 has implicitly acknowledged such an internal right.248 Therefore, it is worth considering that the concept of internal self-determination applies to the interim period in Kosovo. As UNMIK is acting as the governing body of the territory in a role comparable to that of a state government, it is obliged to have due regard to the requirements of a right to internal self-determination within the interim period. As far as the first dimension of the right is concerned, namely the determination of the political system, the people of Kosovo can of course not determine their interna243 244 245 246 247 248 O. Kimminich. “A ‘Federal’ Right to Self-Determination?”, in: C. Tomuschat (ed.), Modern Law of Self-Determination, 1993, 83 et seq. Rosas, see note 242, 249; Doehring, see note 105, MN 32; Supreme Court of Canada, see note 105, 1373. For the right to democratic governance in general see T.M. Franck, “The Emerging Right to Democratic Governance”, AJIL 86 (1992) 46 et seq. (58 and 59); J. Kokott, “Souveräne Gleichheit und Demokratie im Völkerrecht”, ZaöRV 64 (2004), 517 et seq. (525-527); J. Weiler, “The Geology of International Law – Governance, Democracy and Legitimacy”, ZaöRV 64 (2004), 547 et seq. R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, 1996, 23; Tomuschat, , see note 125, 345; Doehring, see note 105, MN 34. D. Thürer, “Self-Determination”, in: R. Bernhardt (ed.), EPIL IV (2000), 364 et seq. (373). Zimmermann/ Stahn, see note 108, 456-457; Tomuschat, see note 125, 345; see for this argument already Part III. 3, above. Max Planck UNYB 9 (2005) 270 tional status. However, internal self-determination gives them the right to participate in constituting their political system, or, in other words, to decide on their desired form of autonomy. Consequently, UNMIK is bound accordingly when discharging its duty to establish “autonomy” and “self-government” in Kosovo. In accordance with this obligation, UNMIK must allow for meaningful participation of the population with a view to ensuring that they determine the features of their autonomy. It prevents UNMIK from deciding essential questions regarding the form and content of their autonomous government because such decisions are predetermining the future format of autonomy. Internal self-determination consequently also requires transfer of important competences as fast as possible. Both the participation of the local population and the transfer of authority have been implemented relatively slow and reluctantly in Kosovo. 3. International Human Rights a. Human Rights Obligations of UNMIK and KFOR aa. UNMIK Resolution 1244 mandates UNMIK to protect and promote human rights.249 It does not, however, expressly include an obligation for UNMIK itself to obey and respect human rights. However, to conclude that the organisation and its organs are not equally bound by human rights would be overly formalistic and run contrary to the principles of Article 1 of the UN Charter. As a subject of international law mandated by the Security Council, UNMIK is bound to respect international human rights standards, at least insofar as the Security Council, acting under Chapter VII, must respect such norms as guidelines in its actions.250 Additionally, the SRSG by means of Regulations 1999/1 and 1999/24 explicitly declared all major human rights treaties to be binding upon “all persons undertaking public duties or holding public office in 249 250 S/RES/1244 (1999) of 10 June 1999, para. 11 (j). Frowein/ Krisch, “Introduction to Chapter VII”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. I, 2002, MN 28; Irmscher, see note 26, 368-369; Stahn, see note 31, 139. Friedrich, Case Study – Kosovo 271 Kosovo”.251 UNMIK personnel are therefore bound by all major human rights treaties in the exercise of public functions. This technique has been equally applied by UNTAET in East Timor.252 bb. KFOR Although being deployed “under United Nations auspices”, 253 Resolution 1244 leaves no doubt that the responsibilities of KFOR are separate from the ones of UNMIK.254 KFOR troops largely remain under the responsibilities of the sending states which are authorised by the Security Council, but act in their own capacity under Article 48 (2) UN Charter.255 Consequently, an obligation of KFOR personnel to observe human rights cannot be directly deduced from UNMIK Regulations stipulating the applicability of human rights treaties.256 The independent role of KFOR was confirmed by Regulation 2000/47, which demands that KFOR shall respect applicable Regulations and law, but only “insofar as they do not conflict with the fulfilment of the mandate given to KFOR under Security Council Resolution 1244”.257 However, international human rights standards also apply to KFOR. KFOR’s mandate requires that actions of KFOR pay due respect to such standards, because Resolution 1244 cannot authorise KFOR beyond the limitations applicable to the Security Council itself. Although such limitations of the Security Council’s activities under Chapter VII must always be balanced with the objective to maintain peace, resulting in their function being more akin to that of guidelines 251 252 253 254 255 256 257 UNMIK/REG/1999/1 of 25 July 1999, section 2; UNMIK/REG/1999/24 of 12 December 1999, para. 1.3. (Regulation 1999/1 merely mentions “internationally recognized human rights standards”, which seemingly was not concrete enough, so that all applicable human rights treaties were explicitly mentioned in UNMIK/REG/24, para. 1.3. and UNMIK/REG/59 of 27 October 2000, para. 1.3. UNTAET/REG/1999/1 of 27 November 1999, section 2. S/RES/1244 (1999) of 10 June 1999, para. 5. See already above, at Part II. 1. a. The responsibility for KFOR’s actions ultimately remains with the sending states, see below, in this section. J. Cerone, “Minding the Gap: Outlining KFOR Accountability in PostConflict Kosovo”, EJIL 12 (2001), 469 et seq. (473). UNMIK/REG/2000/47 of 18 August 2000, para 2.2. 272 Max Planck UNYB 9 (2005) than limits,258 KFOR troops cannot act outside such a framework.259 This view is confirmed by Resolution 1244 when it emphasises that KFOR acts “under UN auspices”.260 In addition, it stipulates that both presences operate towards “the same goals in a mutually supportive manner”,261 and that KFOR must support the work of UNMIK.262 As the protection and promotion of human rights are of central concern among UNMIK’s objectives, KFOR must not undermine this goal by not complying with international human rights standards.263 Furthermore, KFOR troops are subject to human rights obligations of their sending states insofar as the latter remain internationally responsible and insofar as the human rights obligations apply extraterritorially. Regarding the first condition, it can be summed up in short that the command structures of KFOR are such that the decisive control over the mission rests with the sending states. NATO only exercises operational control, i.e. the authority to assign tasks and order troop movements within a certain framework, but cannot, for example, change the mission or deploy troops outside the agreed framework. Therefore, the sending states remain internationally responsible for the actions of their troops.264 The second condition, i.e. the extraterritorial application of human rights obligations, is controversial in detail, but there is a clear tendency in international law towards such responsibilities. This is because generally, with a view to avoid legal vacuums, the traditional territorial limits of human rights directed at states must be reconsidered and be increasingly extended to obligate the international actors that are substituting the state in its exercise of authority.265 Although it is beyond the 258 259 260 261 262 263 264 265 Frowein/ Krisch, see note 250, 28. Stahn, see note 31, 151. S/RES/1244 (1999) of 10 June 1999, para. 5. Ibid., para. 6. Ibid., para. 9 (f). Cerone, see note 256, 473-474. For a more detailed analysis with the same result see H. Krieger, “Die Verantwortlichkeit Deutschlands nach der EMRK für seine Streitkräfte im Auslandseinsatz”, ZaöRV 62 (2002), 669 et seq. (677-683). T. Giegerich, “Grund- und Menschenrechte im globalen Zeitalter: Neubewertung ihrer territorialen, personalen und internationalen Dimension in Deutschland, Europa und den USA”, EuGRZ 31 (2004), 758 et seq. (759). Friedrich, Case Study – Kosovo 273 scope of this paper to deal with this issue in the necessary depth,266 such reasoning can be applied to KFOR troops in Kosovo. According to General Comment 31, article 2 para. 1 of the International Covenant on Civil and Political Rights (ICCPR) is to be understood to include obligations of the states towards “anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party”.267 Explicitly mentioned are “forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation”.268 Thus, the obligations and rights of the ICCPR generally apply to the sending states of KFOR and thus to KFOR troops. The extension of obligations beyond territorial boundaries is more controversial in the regional context, as for example regarding the applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As all European Member States of NATO are also parties to the ECHR, such applicability would be especially consequential for the case of a KFOR engagement in Kosovo as it would include the jurisdiction of the European Court of Human Rights (ECtHR). In Loizidou v. Turkey, the ECtHR has generally acknowledged the possibility of extraterritorial jurisdiction in cases where a state “exercises effective control of an area outside its national territory”.269 States should generally not be allowed to do abroad what they cannot do at home. Otherwise, the result would be a “regrettable vacuum in the system of human-rights protection”.270 However, a qualification of these general considerations could be seen to appear in the Bankovic decision, where the ECtHR stressed that jurisdiction within the meaning of article 1 of the ECHR is foremost to be understood in terms of territorial jurisdiction, thereby emphasising the regional character of the Convention. It generally only applies in “the legal space (espace juridique) of 266 267 268 269 270 See instead Krieger, see note 264. General Comment 31 by CCPR, Doc. CCPR/C/21/Rev.1/Add.13 of 29 March 2004, para. 10; see also S. Joseph/ J. Schultz/ M. Castan, The International Covenant on Civil and Political Rights. Cases, Materials, and Commentary, 2004, MN 4.15. Joseph/ Schultz/ Castan, see note 267, MN 4.15. ECtHR, Loizidou v. Turkey (Preliminary Objections), 23 February 1995, Series A, No. 40/1993/435/514, para. 62. ECtHR, Cyprus v. Turkey (Judgement), 10 May 2001, No. 52207/99, para. 78. 274 Max Planck UNYB 9 (2005) the Contracting States”271 in which “the FRY clearly does not fall”. 272 From this, one could be led to assume that the ECHR does not apply beyond such a space, i.e. in some way spatially qualifying the Loizidou ruling to the territories of states that are members of the Council of Europe.273 However, such a conclusion would somewhat neglect that the Court actually reconfirms the possibility of extraterritorial jurisdiction “when the respondent State, through the effective control of the relevant territory and its inhabitants … exercises all or some of the public powers normally exercised by that Government,” but underscores the exceptional character of such a possibility.274 According to the Court, exceptions can only be made in cases where there would otherwise exist a legal vacuum because “the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention”.275 Seemingly, this description again makes reference to spatial limitations. It is not clear, however, whether this should be taken as a general description of the exceptions, and therefore as a spatial limitation, because the argument appears in a context where the Court is explaining its remarks in Loizidou about the need to fill a legal vacuum.276 Therefore, exceptional extraterritorial application beyond the territory of Contracting States should be a possibility even after this judgement. And indeed, the ECtHR has in Issa v. Turkey confirmed that effective control can give rise to jurisdiction even on the territory of states which clearly do not fall within the “legal space” of the Convention.277 271 272 273 274 275 276 277 ECtHR, Bankovic and Others v. Belgium and 16 Other Contracting States, No. 52207/99, 12 December 2001, para. 61. ECtHR, Bankovic, see note above, para. 80. C.M. Cerna, “Extraterritorial Application of the Human Rights Instruments of the Inter-American System”, in: F. Coomans/ Menno T. Kamminga (eds), Extraterritorial Application of Human Rights Treaties, 2004, 141 et seq. (171). Bankovic, see note 271, para. 71; R. Lawson, “Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights”, in: Coomans/ Kamminga, see note 273, 83 et seq. (110-111). Ibid., para. 80. M. O’Boyle, “The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on ‘Life after Bankovic’”, in: Coomans/ Kamminga, see note 273, 125 et seq. (137); Lawson, see note 274, 114. ECtHR, Case of Issa and Others v. Turkey, No. 31821/96, 16 November 2004, para. 74. Friedrich, Case Study – Kosovo 275 In light of these arguments, a clear case of applicability of the ECHR should be during the time period after the ratification of the ECHR by Serbia and Montenegro on 3 March 2004. The so-described condition of “specific circumstances” could be fulfilled afterwards, because the ratification has led to a legal vacuum in Kosovo as compared to the rest of Serbia and Montenegro for the simple fact that Serbia and Montenegro are not exercising effective control over their territory as a result of the de facto exercise of governmental powers by UNMIK and KFOR. As KFOR troops are effectively exercising control and at least some governmental functions, especially with regard to security, the sending states are responsible under the ECHR. Considering the object and purpose of the ECHR,278 the fact that Kosovo would otherwise present a legal vacuum without having had the possibility to join the Convention, as well as the intensity of control that KFOR exercises over the territory and the persons living on it, the ECtHR should have jurisdiction also in this case,279 i.e. independently of a ratification of Serbia and Montenegro. It remains to be seen whether the ECtHR shares this view,280 but the decision in Issa v. Turkey indicates that it would. It can be concluded that KFOR’s actions must be guided by deference to international human rights standards, the obligation foremost deriving from the international obligations of the sending states and their mandate.281 b. Human Rights Violations by the International Actors With a view to improve future activities in Kosovo or elsewhere, the present study is foremost concerned with the legal structures of the territorial administration in Kosovo. Consequently, the following will only outline some of the areas where action or non-action of UNMIK 278 279 280 281 See for this argument ibid. See for the same result Stahn, see note 31, 151; Cerone, see note 256, 475481. An application to the ECtHR regarding the question of responsibility of France under article 1 in conjunction with article 2 of the ECHR with respect to alleged negligent behaviour of KFOR troops in failing to dismantle an unexploded cluster bomb is pending. See ECtHR, Behrami and Behrami v. France, Appl. no. 71412/01, 16 September 2003. Similarly Krieger, see note 264, 686; Stahn, see note 31, 151-152. 276 Max Planck UNYB 9 (2005) and KFOR have given rise to concern with respect to compliance with international human rights standards. With UNMIK and KFOR effectively controlling the territory, they hold some responsibility for the human rights deprivations of members of minority communities. For example, they only insufficiently and negligently fulfilled their protection duties in various cases, especially during the violence in March 2004.282 In addition to the negligent fulfilment of protection duties, there have also been cases of human rights violations by UNMIK police and KFOR, for instance unlawful detentions of persons even despite judicial release orders.283 Furthermore, inconsistencies regarding human rights obligations exist within all areas of law-making by UNMIK.284 The lack of legal clarity regarding the applicable law in Kosovo raises concerns with respect to the criminal law principle of nullum crimen sine lege.285 As previously seen, the applicable law in Kosovo is the law in force in Kosovo before the abolition of autonomy (22 March 1989), superseded only by UNMIK Regulations.286 However, the law in force after that date can be applied if the previous law does not cover the issue at hand, provided that it is non-discriminatory and in conformity with international human rights law.287 Obviously, finding the applicable law under these parameters is not an easy task even for international judges well-versed in international human rights law. Although intended to clarify, a further complication adds to these difficulties, namely that courts can request 282 283 284 285 286 287 J. Narten, “Menschenrechtsschutz in internationalen Mandatsgebieten und ihre strukturellen Widersprüche am Beispiel des Kosovo”, Informationsschriften Humanitäres Völkerrecht 3 (2004), 144 et seq. (146-147); Human Rights Watch, see note 206, 20 et seq.; Ombudsperson Institution in Kosovo, Fourth Annual Report 2003-2004, see note 230, 20. See as examples the cases of Hamdi Rashica vs UNMIK, Ombudsperson Report of 31 October 2001 (Registration No. 52/01) and Shefqet Maliqu vs UNMIK, Ombudsperson Report of 13 March 2002 (Registration No. 361/01); for a good overview of the human rights problems with UNMIK actions see J. Nilsson, “UNMIK and the Ombudsperson Institution in Kosovo: Human Rights protection in a United Nations ‘Surrogate State’”, NQHR 22 (2004), 389 et seq. For an excellent and detailed discussion of the human rights and rule of law problems with UNMIK legislation see Stahn, see note 26, 162-167; Stahn, see note 31, 154-161; Frowein, see note 26, 50-54. Stahn, see note 31, 156; Frowein, see note 26, 51. UNMIK/REG/1999/24 of 12 December 1999, para. 1.1. Ibid., para.1.2. Friedrich, Case Study – Kosovo 277 clarifications regarding the applicable law from the SRSG.288 This system leads to the situation that it is not exactly clear before the commencement of court proceedings and possible clarifications by the SRSG which law applies. Another serious problem is the lack of an independent judiciary. The SRSG has the power not only to appoint, but also to remove any judge or prosecutor from office, a power which he retains as ultimate authority even under the Constitutional Framework.289 As there exist no safeguards against these decisions, the executive is able to control the judiciary, which is incompatible with the requirements of an independent and impartial tribunal as required under fair trial guarantees of international human rights law.290 c. Absence of Effective Remedies against the International Authorities The special status of Kosovo291 coupled with immunity clauses for the international actors presents a dilemma regarding effective remedies against human rights violations of public authorities. The situation leaves a gap that raises serious doubts with respect to basic requirements of the internationally guaranteed access to courts, which is included in the fair trial principle of international human rights law.292 On the one hand, Serbia and Montenegro is excluded from effective control over Kosovo and therefore not responsible for preventing human rights violations of UNMIK and KFOR. Therefore, human rights obligations of Serbia and Montenegro have no protective effect for the people in Kosovo. On the other hand, with the exception of the sending 288 289 290 291 292 Ibid., section 2. UNMIK/REG/2001/9 of 15 May 2001, para. 8.1. See for these guarantees for example article 10 of the Universal Declaration of Human Rights, article 14 (1) ICCPR; see in particular CCPR in Angel Oló Bahamonde v. Equatorial Guinea, Case No.4681991 in: 1994 Report of the Human Rights Committee to the General Assembly, Annex IX, section BB, para. 9.4.; A. de Zayas, “The United Nations and the Guarantees of a Fair Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, in D. Weissbrodt/ R. Wolfrum (eds), The Right to a Fair Trial, 1998, 669 et seq. (682-683). See for the status of Kosovo under UNMIK, Part III. 2, above. See article 14 (1) ICCPR; Joseph/ Schultz/ Castan, see note 267, MN 14.14. 278 Max Planck UNYB 9 (2005) states of KFOR, the international actors cannot be held accountable for any of their actions, because they fall under immunity clauses or are not parties to human rights treaties. There does not exist any means for people in Kosovo to litigate or complain against human rights violations of UNMIK, despite the fact that it is under the obligation to respect such rights. The result is unsatisfying from a human rights perspective. As the Ombudsperson Institution in Kosovo rightly observes, it is difficult to accept that the only place left in the Balkans where people are effectively excluded from complaints to the ECtHR for human rights violations of their government (UNMIK) is Kosovo, the one place where the international community has made such efforts to improve human rights protection.293 But even before national courts, remedies against UNMIK and KFOR are largely excluded due to immunity claimed by the international actors.294 Besides granting absolute immunity from jurisdiction before courts in Kosovo to KFOR personnel, which remains under the jurisdiction of the sending states, and to the SRSG and the four Deputy SRSGs, UNMIK Regulation 2000/47 provides all international and local UNMIK personnel with functional immunity before all courts in Kosovo. But foremost, it grants UNMIK as an institution complete immunity from legal process,295 thus creating a legal vacuum with respect to access to justice.296 Such broad immunity clauses contrast with the argument that human rights obligations of states cannot be altered or become superfluous by the mere fact that the sending states are acting within the framework of an international organisation, because the transfer of responsibilities to such organisations should not lead to less effective human rights protection by de facto absolving states of their international legal obligations.297 At the same time, there exists a need for International Organizations to ensure that the organisation or members acting in pursuit of its objectives can fulfil their functions without state inter- 293 294 295 296 297 See Ombudsperson Institution in Kosovo, Fourth Annual Report 20032004, see note 230, 16. UNMIK/REG/2000/47 of 18 August 2000. Ibid., section 3. Narten, see note 282, 145. The argument provides the basis for the judgement of the ECtHR in ECtHR, Case of Waite and Kennedy v. Germany, Judgement of 18 February 1999, Appl. No. 26083/94, para. 67; See also Stahn, see note 31, 151. Friedrich, Case Study – Kosovo 279 ference.298 Accordingly, immunities find an important justification in the principle of functional necessity, which constitutes a fundamental rule of the system of international privileges and immunities.299 However, functional necessity can only allow for immunity in those areas in which the functions and objectives could otherwise not be fulfilled.300 In the case of UNMIK and KFOR, the need for extensive immunity clauses is questionable, because there hardly exists any functional necessity to be safeguarded from the interference of other states. Both present de facto the only governmental power and must not seek any protection for themselves or for their personnel from other states. Even when considering security concerns as a legitimate justification for restricting the human rights guarantees, such restrictions cease to be justifiable after the end of an emergency period. Therefore, even if broad exceptions are necessary in the initial stages of a mission, improvement of the security situation and development of institutions decrease the need for immunity from local courts and should thus be accompanied by greater accountability.301 As an alternative to more restrictive immunity clauses, the stipulation of which might not always be realistic, the overly restricted access to justice could and should be alleviated by providing alternative means of judicial remedies for individual complaints.302 In Kosovo, however, effective alternative complaint mechanisms against human rights violations of the international actors are nonexistent or insufficient. First, the Ombudsperson Institution for Kosovo cannot be considered an effective remedy to satisfy human rights standards.303 Though formally supposed to “act independently”,304 the Ombudsperson is ap298 299 300 301 302 303 304 F. Rawski, “To waive or not to waive: immunity and accountability in U.N. Peacekeeping Operations”, Conn. J. Int’l L. 18 (2002-2003), 103 et seq. (106). M. Gerster/ D. Rotenberg, “Article 105”, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. II, 2002, MN 8. Stahn, see note 31, 148. Ibid., 149. Compare for the argument within the context of the ECHR, Waite and Kennedy v. Germany, see note 297, para. 68. Compare ECtHR, Klass and others vs. Federal Republic of Germany, 6 September 1978, para. 64; Nilsson, see note 283, 400; Stahn, see note 31, 165. UNMIK/REG/2000/38 of 30 June 2000, para. 2.1. Max Planck UNYB 9 (2005) 280 pointed and removed by the SRSG.305 Besides, it can only make recommendations and is unable to enforce its decisions. Furthermore, it depends on the SRSG for funding. Second, the two monitoring agreements with the Council of Europe306 – while being important compliance instruments with respect to the issues covered – cannot be considered effective judicial remedies since they do not provide for any individual complaint possibilities. It must be concluded that the lack of accountability created by the broad immunity clauses is neither justified by functional necessity nor alleviated by other alternative means of access to justice. This result underscores that the practice of UNMIK in the field of human rights protection is insufficient and unsatisfactory. 4. Law of Occupation UNMIK and KFOR are deployed in the territory of a foreign country and are exercising complete control over the territory. Must they consequently obey obligations of the law of occupation? Considering the applicability ratione personae, the law of occupation307 applies when a belligerent state occupies the territory of the adversary or a part thereof.308 With UNMIK not being a state, the rules do not apply directly with respect to UNMIK. However, the rules could be applicable by way of analogy if the situation is similar to that of an occupation. The KFOR participating countries could be directly obliged if their engagement under UN authorisation is comparable to that of an occupation. 305 306 307 308 Ibid., paras 6.2 and 8.2. UNMIK/PR/1216 of 23 August 2004, available at: www.unmikonline.org/ press/2004/pressr/pr1216.pdf (last visited 1 June 2005). Sources of such law are essentially arts 42 to 56 of the Hague Regulations, annexed to 1907 Hague Convention (IV) and arts 27-34 and 47-78 of the Fourth Geneva Convention of 1949 as well as arts 14, 63 and 69 of the 1977 Additional Protocol I to the 1949 Geneva Convention. C. Greenwood, “The Administration of Occupied Territories in International Law”, in: E. Playfair (ed.), International Law and the Administration of Occupied Territories, 1992, 241 et seq. (243). Friedrich, Case Study – Kosovo 281 What matters for the application ratione materiae are the factual circumstances of the situation, i.e. whether an occupation de facto takes place, without regard for the legality of such a situation.309 Looking at the factual situation, the terms of KFOR and UNMIK involvement resemble in some ways the situation of the law of occupation. The deployment is of provisional character and Serbia and Montenegro continues to be the de jure sovereign of the territory, even if it is completely excluded from exercising such powers temporarily. From this, it could be concluded that the law of occupation applies directly (KFOR) or per analogy (UNMIK).310 However, it is important to see that the role of the United Nations and KFOR is essentially different from that of an occupying state, and thus the rules of the law of occupation do not fit for a number of reasons. First, the role to maintain peace and security in a post-conflict situation can hardly be compared to that of an occupying state.311 Furthermore, the objectives to build peace through reforming a territory, e.g. by establishing democratic self-government, renders inadequate such rules that are – as the rules of the law of occupation – designed to maintain the status quo ante of the occupied state. Consequently, UNMIK and KFOR can not be compared to an occupying force. The law of occupation does not apply. Nevertheless, as there might be gaps in the otherwise guiding framework of Resolution 1244, the law of occupation could be taken to serve as a source of legal guidance.312 VI. Some Lessons for Future Missions When attempting to draw lessons from Kosovo for other international administrations, one must always keep in mind that there does not exist a blueprint formula for a successful mission.313 In many ways, Kosovo is a unique case, and some of the difficulties outlined above might never 309 310 311 312 313 One of the classic principles in the law of occupation is the separation of ius ad bellum and ius in bello. Irmscher, see note 26, 386-387; Stahn, see note 31, 139. De Wet, see note 34, 320-329 (for a detailed discussion of the applicability of the law of occupation). Irmscher, see note 26, 387. De Wet, see note 34, 339. Max Planck UNYB 9 (2005) 282 be of critical importance again. However, some of the problems that were identified and which will be clarified more thoroughly in the following seem to be representative of more general aspects of effective peace-building, especially in cases of a full-scale direct administration. They should therefore be kept in mind when it comes to future international missions. The main task of Chapter VII of the UN Charter and of postconflict governance is to prevent recurrence of war by achieving a selfsustaining peace. The tools that promise to lead to such a result are democratic institutions, reconciliation and a culture of human rights protection,314 mirrored in the approach of Resolution 1244. However, unlike a cease-fire, such goals cannot be enforced, but must be built with the participation of the target society. The people must make these goals their own and acquire a sense of “local ownership”.315 Political success of the mission will thus ultimately depend to a large extent on the acceptance and actual support of the local authorities and civil population,316 in particular elites.317 From this seemingly trite, but nevertheless essential fact follow a number of guidelines that could increase effectiveness and success of a mission but have only received insufficient attention by the decision-makers in the case of Kosovo. 1. Need for a Clear Political Perspective A mission needs a clear political perspective. Without a clear vision of the future, the mission will not only have problems of credibility and lose the acceptance of the population in the interim period, but the people will find it difficult to know what exactly it is that they should make their own, what it is that they should strive for. The “standards before status” policy has not been able to adequately address or alleviate this uncertainty in Kosovo, but could be improved. As can be seen in this paper, the unclear final status, accompanied by a lack of clear direction has created difficulties for the work of the Ad- 314 315 316 317 O. Korhonen, “International Governance in Post-Conflict Situations”, LJIL 14 (2001), 495 et seq. (524). K. Eide, see note 142, para. 14. De Wet, see note 34, 339. See for the importance of the support and acceptance of elites, R. Utz, in this Volume. Friedrich, Case Study – Kosovo 283 ministration.318 The discrepancy between the international support for Yugoslavian sovereignty on the one hand and the wish of the overwhelming majority of Kosovo’s population for independence on the other 319 has been worsened by the introduction of this factor of uncertainty. Whatever policy UNMIK was pursuing, it was suspiciously scrutinised by both Kosovo Albanians and the Serb minority who interpreted it as being a step towards or away from independence. Therefore, many issues were unnecessarily politicised.320 Kosovo Serbs were largely non-cooperative, especially regarding the process of building autonomous institutions for fear that this would create facts on the ground. As hopes for independence were kept high but uncertain, Kosovo Albanians were often dissatisfied with policies intended to establish autonomy without full transfer of power or with attempts to improve standards for minority protection. Consequently, UNMIK’s acceptance fell as they increasingly perceived UNMIK to stand between them and independence.321 In addition, tensions between the groups remained arguably higher than they would have otherwise; uncertainty about the future status in a way means that the conflict continues.322 In particular, ethnically motivated violence as in March 2004 could be perceived by short-sighted extremists as a possibility to influence the uncertain outcome of a final decision. Of course, it would be overly simplistic to just recommend a decision over the final status at the end of the conflict, as the internal as well as international (regional) situation might not be stable enough at that point for a settlement. As in the case of Kosovo, where attention had to be paid to the political situations in Macedonia, Montenegro and Serbia, such decisions must be timed wisely. But it is important to resolve such an issue as soon as possible, or at least provide a clear strategy towards that end. 318 319 320 321 322 Korhonen, see note 314, 496. Yannis, see note 30, 68. Id., 74 and 76. D. Harland, “Legitimacy and Effectiveness in International Administration”, Global Governance 10 (2004), 15 et seq. (16); Yannis, see note 30, 77; K. Eide, see note 142, para.12. Yannis, see note 30, 68 and 78. 284 Max Planck UNYB 9 (2005) UNMIK realised this need and introduced the “standards before status” policy, albeit rather late. While such a strategy has the potential to add a sense of direction to the self-governing institutions and the people, the standards must be perceived as achievable and realistic aims. If they are too strict and inflexible, they will lack credibility. This has been the case in Kosovo, where the “Kosovo Standards Implementation Plan” has outlined the features of a modern and democratic society, a process that can take decades to be completed.323 Instead, a standard policy should focus more on the most urgent priorities, such as minority returns, decentralisation and reconstruction for the immediate future, in order to achieve a climate between the ethnic groups that allows for a further transfer of responsibilities.324 2. Respecting Basic Democratic Standards and Standards of Human Rights to Maintain Credibility and Legitimacy325 Territorial Administration needs to remain legitimate and credible in the eyes of the population. Essential for legitimacy and credibility is the adherence of the administration itself to the principles it is trying to implement for the territory. It is at this point where political success and effectiveness are closely connected to questions of the legality of the implementation practice.326 In order to be perceived as legitimate and to improve the ability to implement its objectives, an administration acting as the de facto government of a state must itself comply with basic requirements of democratic governance, rule of law and human rights if such principles are 323 324 325 326 Compare K. Eide, see note 142, para. 30. Ibid., para. 31. Legitimacy is here in this context used as perceived or subjective legitimacy, i.e. the “perception of a rule as legitimate by those to whom it is addressed”. Compare T. Franck, “Legitimacy in the International System”, AJIL 82 (1988), 705 et seq. (706); Perritt, see note 99, 425 (citing in part Nigel Purvis, “Critical Legal Studies in Public International Law”, Harv. Int’l L. J. 32 (1991), 81 et seq. (111)). Although legality can generally enhance the perceived legitimacy by increasing the objective legitimacy, it does not automatically ensure an increase in the perceived legitimacy in every case. See for the differentiation between objective and perceived or subjective legitimacy Perritt, see note 99, 425-426. According to him, “the challenge is to make these factors converge”, i.e. to strive for subjective and objective legitimacy, see ibid. Friedrich, Case Study – Kosovo 285 supposed to govern the target society.327 Effectively fulfilling the mandate therefore demands that UNMIK is not perceived as an absolute sovereign, but as a governing entity which is subject to normative constraints and control.328 In other words, the international actors in peacebuilding missions must themselves comply with and be accountable under those obligations and standards that they are obliging others to meet. Otherwise, they will not be credible, lose legitimacy and hurt the success of the missions.329 UN administrations should not only build institutions but also set examples.330 The structure of UNMIK did not correspond to important standards of democratic governance and rule of law. As can be seen in this paper, it entailed virtually no separation of power. In particular, it lacked a means of judicial control of the executive, as well as a procedure to at least challenge UNMIK legislation through the courts.331 Similarly, lack of accountability of UNMIK and, to a lesser extent, of KFOR not only conflicts with basic standards of human rights, but contrasts with basic standards of democratic governance and the rule of law.332 No democratic state government in the world accords itself immunity from any responsibility as does UNMIK.333 The wide immunity clauses are therefore inadequate for a meaningful pursuit of the objectives of democratic governance334 and should be alleviated through the provision of alternative complaint mechanisms. A concentration of power in the hands of unaccountable institutions might be justified in an initial emergency phase.335 Besides, there are many practical considerations such as the willingness for troop contributions or the inability of national courts to provide for international standards of due process that are behind these structures. However, at least in the context of transitional government where the UN is the sole 327 328 329 330 331 332 333 334 335 Stahn, see note 31, 114. Korhonen, see note 314, 525. Krieger, see note 264, 698. Korhonen, see note 314, 501, von Carlowitz, see note 33, 370 and 389; Nilsson, see note 283, 411. See UNMIK/REG/1999/1 of 25 July 1999 and UNMIK/REG/1999/24 of 12 December 1999. Rawski, see note 298, 124-125; Stahn, see note 26, 160. See Ombudsperson Institution in Kosovo, Fourth Annual Report 20032004, see note 230, 15. Rawski, see note 298, 125. See in this sense Wagner, see note 26, 137. Max Planck UNYB 9 (2005) 286 governing power, independent fora to address allegations of human rights violations could be an important step towards a more just, more credible and ultimately more effective transitional administration.336 The creation of the Ombudsperson Institution and the agreements with the Council of Europe are already pointing into the right direction, but are not yet sufficient. An independent expert commission for human rights violations of international territorial administrative bodies could be a feasible option in this respect.337 3. Minority Protection A priority for achieving sustainable peace must be minority protection and integration. Negligence in this respect results in the loss of trust of the minority and the likely failure of the reconciliation and pacification efforts. Minority protection and integration presented a major challenge in Kosovo. Although wide guarantees are included in the Constitutional Framework, this challenge has never really been met, stalling the overall progress in consequence. Although building better structures cannot replace nation-building,338 legal protection mechanisms such as the ones inserted in the Constitutional Framework or sanctioning of the majority can contribute at least towards gaining the trust of minorities. A useful instrument to achieve that end could also be the decentralisation of authority with a view to giving greater authority to minority communities in areas with greater concentration of minority population.339 This could counteract attempts to drive minorities out and facilitate minority returns. In an attempt to learn lessons from the violence in March 2004 and in response to calls from Belgrade, UNMIK has embarked on a reform of local government.340 It proposes devolution of more power to the local communities which has the potential to in336 337 338 339 340 Similarly Rawski, see note 298, 127. Narten, see note 282, 151. See for the concepts of state-building and nation-building, A. von Bogdandy et al., in this Volume. This policy is highly recommended by K. Eide, see note 142, para. 23. UNMIK Working Group on Local Government, “Framework for the Reform of Local Self-Government in Kosovo”, 19 July 2004, available at: www.unmikonline.org/misc/frameworkdoc_eng.htm (last visited 1 June 2005). Friedrich, Case Study – Kosovo 287 crease the feeling of security and ownership by the minority communities, thereby contributing to an atmosphere of trust. 4. Ensuring Democratic Participation of the Population Central for establishing a sustainable peace is the participation of the local population in the peace process from the very beginning.341 Therefore, the territorial administration must strive to increasingly include the population in the decision-making processes.342 This approach finds expression in Resolution 1244, to a certain extent in the principle of self-determination343 as well as in an emerging right to democratic governance.344 Even though the latter cannot (yet) be seen as legally required, the requirement to base governance on consent and provide for meaningful participation is useful in providing guidance to an effective administration. The same is true for the law of occupation insofar as Resolution 1244 does not address an issue. Substantial participation of the population in the process and consent of the population has been demonstrated in Kosovo by the participation of the majority in elections.345 UNMIK has also allowed for broad participation of the population in many areas, but has done so too reluctantly and too slowly. Especially long-term and intrusive measures were introduced without meaningful participation of the population, which for a long time had only limited advisory roles.346 Examples for such problematic measures are privatisation, the creation of a market economy as well as the change of the domestic commercial law.347 Until today, important powers that are neither attributes of sovereignty nor necessary as protection and sanctioning mechanisms have 341 342 343 344 345 346 347 See for example von Carlowitz, see note 33, 354; Korhonen, see note 314, 528-529. Stahn, see note 31, 138. See Part V. 2., above. See the authors at FN 245. Irmscher, see note 26, 365. See Part IV. 1., above. For example UNMIK/REG/2000/68 of 29 December 2000 (Sale of Goods) or UNMIK/REG/2001/3 of 12 January 2001 (Foreign Investment); see for these issues also von Carlowitz, see note 33, 390; Irmscher, see note 26, 390-395. Max Planck UNYB 9 (2005) 288 remained reserved powers of the SRSG. As shown above, Resolution 1244 only requires a continuous monitoring of the practice of the institutions, but not the retention of the powers until all standards are fulfilled. The length of this retention is thus neither legally necessary nor is it politically sensible. Of course, the reluctance to cede power must be seen against the background of continuous ethnic division and ongoing challenges to the security situation which have made it more difficult to entrust the local population with its own governance.348 Nevertheless, the unanimous demand of the Kosovo Albanian leadership to transfer those powers indicates the risk of withholding too much authority for too long. It only leads to further loss of legitimacy of the administration. On the contrary, the transfer of these powers under certain guarantees of implementation could increase further the sense of “ownership” of the society that is vital for final success.349 VII. Final Concluding Remarks The approach to post-conflict state-building as employed in Kosovo combines a set of features which, taken together, outline a specific model of international territorial administration. Such a model can be situated at the extreme end of a spectrum of international involvement. A central feature is the assumption of complete governmental power on the part of a United Nations sub-organ, mandated by the Security Council under Chapter VII. Numerous other actors and organisations are integrated into an administration under the umbrella of the UN as the leading agency. The political transition and devolution of power occur in phases; the initial absolute authority of an international actor is progressively transferred as institutions are built and conditioned upon the implementation of standards of human rights, in particular with respect to vulnerable minorities, democratic governance and rule of law. The end point of the development is the determination of the final status. This approach to transition, which has been called “earned sovereignty” approach350 despite the fact that only status discussions, but not sovereignty in the real sense can be “earned”, intends to mitigate the dichotomy of sovereignty and self-determination. It is especially sa348 349 350 Stahn, see note 26, 152. Compare K. Eide, see note 142, para. 14. See Williams, see note 199, 422 et seq. Friedrich, Case Study – Kosovo 289 lient in the “standards before status” policy of UNMIK, which incorporates an element of conditionality into the approach.351 The trend in post-conflict peace-building towards a larger scope of responsibilities for international actors and for direct intervention in the internal affairs of states had already marked the UN missions in Cambodia and Bosnia-Herzegovina. In both cases, either the initial approach (Cambodia) or the actual implementation (Bosnia-Herzegovina) contained elements of direct administration such as the administration of core governmental functions or legislative powers. However, despite the enormous responsibilities assumed by the UN, parallel state structures (Bosnia-Herzegovina) or at least a legitimate authoritative body (Supreme National Council in Cambodia) existed alongside, a fact that forbids the classification as direct administrations.352 The development of the 1990s towards ever stronger international involvement culminated in a structure which effectively replaced the authority of the sovereign state over the territory. The mandate in Resolution 1244 foresees a wide scope of authority and responsibility, thereby distinguishing Kosovo from Bosnia-Herzegovina. The subsequent implementation practice of UNMIK maintained this direction, and insofar deviated from cases like Bosnia-Herzegovina and Cambodia, by effectively suspending the sovereignty of Serbia and Montenegro while at the same time concentrating the power in the hands of the SRSG. In this respect, UNMIK has served as an example for UNTAET in East Timor, where the UN equally assumed absolute power. The advantages of such an approach obviously lay in the potential to address effectively an emergency situation and establish security. The coordination of the numerous organisations involved under one umbrella organisation counteracts the tendency that numerous actors work at cross purposes, as it happened to a large extent in BosniaHerzegovina. That even a division of peace-enforcement and civil administration runs contrary to security is demonstrated by coordination problems between KFOR and UNMIK, and has been improved in East Timor where the security force and the civil administration were united under one command structure. 351 352 “Conditional sovereignty” is an optional element of the “earned sovereignty” approach, see Williams/ Pecci, see note 198, 356; for the approach in general see Hooper/ Williams, see note 198. See for details the articles of L. Keller and K. Oellers-Frahm, in this Volume. 290 Max Planck UNYB 9 (2005) In some ways, the initial concentration of civil and military power in the hands of the international actors is also reflected in the structures established in the immediate aftermath of the conflict in Iraq, exemplified by the role of the Coalition Provisional Authority and its power to legislate.353 The obvious difference to the model of Kosovo and East Timor is of course the role of the UN, which is negligible in Iraq. The choice of the international community to vest such extensive tasks and responsibilities in the hands of a UN organ acting under the mandate of the Security Council pays tribute to the need for international and internal legitimacy.354 The UN is the actor least likely to be perceived as illegitimately interfering with the internal affairs of a country.355 The special legitimacy and neutrality of the UN also makes it the ideal candidate to initiate and moderate the dialogue between the elites of the territory which is essential for success.356 However, even the legitimacy of the UN will suffer from prolonged involvement against the will of the people and from discrepancies between the means and the ends of a mission. The case of Kosovo shows that a model of direct administration where international actors are vested with absolute authority as it is foreseen by Resolution 1244 presents a serious contradiction between the structures of absolute authority and the goal to build democratic self-governing institutions. This contradiction, reflective of the dilemma between security and democratic governance which is vexing for all post-conflict administration, must be solved by balancing both interests. Even if emergency requirements of the initial post-conflict situation require a neglect of some standards, the international administration cannot afford in the long run to maintain structures void of basic standards of human rights protection and accountability for its own behaviour, especially if the obedience of such standards by the population is considered a precondition for the devolution of power. In addition, mechanisms of accountability and rule of law which equally apply to international actors are essential for effective governance and for establishing a culture of human rights and rule of law.357 If it proves to be politically infeasible to limit immu353 354 355 356 357 See already Part III. 1. b. cc., above; for more details see R. Wolfrum, in his article on Iraq, in this Volume. See for these terms and the importance of legitimacy Perritt, see note 99. Caplan, see note 65, 22. See for the role and importance of elites and their dialogue R. Utz, in this Volume. Chesterman, see note 26, 153. Friedrich, Case Study – Kosovo 291 nity clauses, which lack some of their functional necessity in a situation where absolute authority is held by the international actor, other control mechanisms must be established. This political and legal imperative is not confined to the UN as the main actor. It is even more essential in a situation where it is not the UN, but a coalition or single states which assume such functions without being able to rely on the political legitimacy of the UN, as for example in Iraq. The dilemma between participation and self-determination on the one hand and security concerns on the other resurges in the approach to local participation and the transfer of authority. The dilemma concerns all post-conflict administrations, and it regularly proves difficult to find the right balance, as the most recent problems in Iraq again demonstrate. But in cases like Kosovo, where vulnerable minorities depend on long-term protection, the issue attains even higher complexity. The vulnerability of minorities, e.g. the Kosovo Serbs in Kosovo, might not only require the choice for the model of direct administration, but also necessitates that the administration withholds certain powers even after an initial emergency phase. In such a situation, what seems to be important is clarity about the process of transition.358 The above mentioned “earned sovereignty” approach can be a helpful means to provide for such clarity and serve the cause of minority protection and human rights through the established conditionalities. The utility of such an approach is confirmed by the experience in Bosnia-Herzegovina, where the danger of devolving too much power too soon became apparent. The case of Iraq might provide for a useful comparison, since the devolution of power, at least in comparison with Kosovo, has been particularly rapid. The only preconditions for devolution of power are elections and a representative government,359 i.e. it is hardly dependent on a set of standards or benchmarks. It remains to be seen if such an approach can also be crowned with success, a result that would undermine the claim to utility of the “earned sovereignty” approach. Indeed, “earned sovereignty” harbours some dangers, some of which have become apparent in Kosovo. First, the withholding of power for too long can infringe on legitimacy as it shifts all responsi- 358 359 Chesterman, see note 26, 152-153. S/RES/1483 (2003) of 22 May 2003, para. 9; S/RES/1546 (2004) of 8 June 2004, para. 4 in conjunction with para. 12. Max Planck UNYB 9 (2005) 292 bilities and therefore all potential blame to the international actors. Second, the approach might conflict with the concept of “ownership” which is central to sustainable peace. If local institutions and actors are integrated too slowly, local actors are less likely to develop the sense of responsibility and conviction needed to implement and maintain the standards. The reluctance of the international actors in Kosovo to transfer authority stalled the process and discredited the overall approach.360 Third, if conditionalities are linked to the approach, i.e. by making the transfer of power and the determination of final status contingent on the fulfilment of standards, standards must remain attainable and a clear political endpoint foreseeable. Contrary to the examples of BosniaHerzegovina or Cambodia, UNMIK’s operational aim is unclear and only of temporary nature. The “standards before status” approach has left open the question what procedures will decide over the final status of Kosovo. Therefore, the conditionalities upon which the “earned sovereignty” approach builds only provide weak incentives for the participants. This latter fact is indicative of the underlying reason why the model applied has (so far) not been able to deliver. The dilemma already inherent in Resolution 1244 between territorial integrity for the FRY and self-determination for the Kosovo Albanians has prevented the political actors from resolving one core issue of the conflict, namely the issue of sovereignty over Kosovo. The consequence was an administration that continuously struggled with a lack of direction and with noncooperative Kosovo Albanians and Kosovo Serbs.361 Without a clear strategy to come to terms with this root cause, the conflict will continue in a way that prohibits real progress. It is at this point where the law of self-determination should be developed further and applied in a clear manner by the international community. Compromise solutions taking account of the importance of both territorial integrity and self-determination inherent in concepts such as internal and (exceptional) external self-determination as well as “earned sovereignty” are readily available to provide the basis for much needed refinement. The case study has led to the conclusion that it is in the interest of all participants to resolve the issue of sovereignty as soon as possible by applying such new concepts in a cautious, but consistent manner. Otherwise, the conflict continues underneath the surface. Unfortunately, the opportunity to find a peaceful internal solution had not 360 361 Williams, see note 199, 424. Caplan, see note 65, 17. Friedrich, Case Study – Kosovo 293 been taken by the FRY before 1999. The international community missed a chance to find a solution in 1999 and after the fall of Milošević in 2000, although for understandable political reasons. It is to be hoped that the political process of final status determination will now begin as soon as possible and resolve the issue in accordance with international law as outlined above. Given the history of human rights abuses in Kosovo, a sustainable solution cannot be decided against the will of the people of Kosovo, but the majority must understand that its rights are linked to the rights and protection of the minorities and regional security. Irrespective of these difficulties, which are to a certain extent specific to Kosovo, the international administration in Kosovo can provide a useful model framework for future missions in similar circumstances, provided that the inherent dilemmas in such an approach are recognised and that structures are adjusted. Success of other missions will depend on their capability to avoid past mistakes that have paralysed progress in Kosovo. The lessons from Kosovo in this way are an indispensable part of the toolkit for future successful peace-building. Midwifing a New State: The United Nations in East Timor Markus Benzing* I. II. III. IV. V. * “A Laboratory for ‘Nation-Building’?” Decolonisation, Interrupted: The Historical Background From UNAMET to INTERFET: The Referendum on Independence From INTERFET to UNTAET The United Nations’ Kingdom of East Timor? Transitional Administration under UNTAET 1. Preparations Leading up to UNTAET 2. The Legality of Security Council Resolution 1272 (1999) 3. Powers of UNTAET and Limits thereto under International Law a. The Status of East Timor from the Establishment of UNTAET to Independence b. The Powers Vested in UNTAET c. Restrictions on UNTAET’s Powers aa. UNTAET’s Mandate bb. Human Rights cc. Analogy to the Trusteeship System dd. Humanitarian Law: The Law of Occupation ee. The Right to Self-Determination ff. The Right to Democratic Governance 4. Accountability: The Control of UNTAET’s Powers a. Internal Control Mechanisms b. External Control Mechanisms c. Evaluation The author wishes to thank Dr. Monika Schlicher for valuable comments on an earlier draft. A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 295-372. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. 296 Max Planck UNYB 9 (2005) 5. A Modern Form of Colonialism? The Question of Local Participation a. Phase 1: The National Consultative Council b. Phase 2: The First Transitional Government: The National Council and the Cabinet c. Phase 3: The Second Transitional Government d. Evaluation: The “Interventionist” and “Optimist” Approaches 6. Administration of Justice and Judicial Post-Conflict Management a. Reconstruction in the Justice Sector: Starting from a Tabula Rasa aa. Lack of Qualified Personnel bb. Lack of Infrastructure and Court System cc. Uncertainty Concerning the Applicable Law b. Coming to Terms with the Past: Post-Conflict Justice VI. Independence and Continuing State-Building 1. Preparations for Independence: The Constituent Assembly and the Drafting of the Constitution 2. First (presidential) Elections and Independence of East Timor 3. UNMISET and UNOTIL VII. “An Exercise in Adapting Ideals to Painful Realities”: Evaluation and Concluding Remarks I. “A Laboratory for ‘Nation-Building’?”1 East Timor (officially: Timor-Leste), located at the eastern end of the Indonesian archipelago to the northwest of Australia, is the most recent member of the United Nations,2 and the youngest state to date. The territory occupies an area of only ca. 15,000 square kilometres, its population amounts to approximately 925,000 people. Despite its small size and population, it represents one of the most intriguing cases of “state-building” under the authority of the United Nations, not least because, in hindsight, it is overwhelmingly considered a successful mission. The United Nations Transitional Administration in East Timor (UNTAET), which forms the centrepiece of the present work, is often cited in line with the United Nations Transitional Authority in Eastern Slavonia, Baranja and Western Sirmium (UNTAES) and the United Nations Interim Administration Mission in Kosovo (UNMIK). This is easily explicable considering the close resemblances of the legal instru- 1 2 J. Traub, “Inventing East Timor”, Foreign Aff. 79 (2000), 74 et seq. (74). Timor-Leste was admitted by the General Assembly as the 191st Member State of the United Nations on 27 September 2002. Benzing, Case Study – East Timor 297 ments establishing these institutions.3 However, UNTAET holds a special position among the instances where the UN has administered territories. First, East Timor is a case of “delayed decolonialisation”. As the intervention by Indonesia prevented the local population from exercising its right of self-determination to end colonial rule by Portugal,4 the case of East Timor raises specific questions of self-determination. Second, East Timor is particularly noteworthy as it is the most radical “statebuilding” exercise the United Nations has engaged in to date, in the most literal sense of the word, as the United Nations acted as midwife for a new state. Seen through the perspective of past United Nations activities, UNTAET faced unprecedented tasks in terms of intensity and extent. Even though the exercise of governmental powers by the United Nations under Chapter VII had already been discussed at the San Francisco Conference,5 and both the League of Nations and the United Nations had, to varying degrees, administered territories before,6 UNTAET, as well as UNMIK, are essentially to be seen as the result of a “re-definition” or even a “self-invention” of the United Nations, in particular its tasks in the realm of post-conflict support for states after the demise of communism and the break of the deadlock in the Security Council. This is most apparent in Secretary-General Boutros BoutrosGhali’s “Agenda for Peace”,7 the first policy-setting UN document after the end of the Cold War, introducing a new category of UN activity under the heading of “post-conflict peacebuilding”. 3 4 5 6 7 For UNTAES: S/RES/1037 (1996) of 15 January 1996; For UNMIK: S/RES/1244 (1999) of 10 June 1999. See only E. Benvenisti, The International Law of Occupation, 2nd printing with a new preface, 2004, 153. See UNCIO XII, 354-5, Doc. 539 III/3/24 and J.A. Frowein/ N. Krisch, “Article 41”, in: B. Simma (ed.), The Charter of the United Nations – A Commentary, 2nd edition, 2002, Vol. I , Frowein/ Krisch, MN 21. See R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Adminsitration”, AJIL 95 (2001), 583 et seq. B. Boutros-Ghali, An Agenda for Peace – Preventive Diplomacy, Peacemaking and Peacekeeping: Report of the Secretary-General, Doc. A/47/277-S/24111 (1992). 298 Max Planck UNYB 9 (2005) UNTAET, along with UNMIK, could be seen as a new generation of peacekeeping.8 Its endeavours seem bold if one bears in mind the general scepticism Article 2 (7) of the Charter seems to express towards UN activity within states, in particular in relation to their political system, as well as the notoriously limited resources available to the organisation.9 UNTAET is, perhaps, the purest articulation of this new-won self-confidence, given that the United Nations exercised full and effective sovereignty over a territory for more than two years.10 At the same time, it may come to represent the high water mark of UN activities in the field of “state-building”:11 Another, more recent, UN policy-setting document, the Brahimi Report seems sceptical whether “the UN should be in this business at all” in the future.12 Apparently, this scepticism has proved accurate. The UN’s engagement in Afghanistan, for various reasons, has been marked by a so-called “light-footprintapproach”, i.e. by methods of “state-building” far less intrusive than the powers wielded by UNTAET.13 It has been pointed out that East Timor’s small size and uncontroversial future (i.e. independence), as well as the absence of any relevant internal conflict at the time of UN administration, made it a relatively 8 9 10 11 12 13 Ch. Gray, International Law and the Use of Force, 2nd edition, 2004, 211 calls it the “third generation”; B. Kondoch, “Human Rights law and UN peace operations in post-conflict situations”, in: N.D. White/ D. Klaasen (eds), The UN, human rights and post-conflict situations, 2005, 19 et seq. (24) refers to it as the “fourth generation”. See Ch. Gray, “The Use of Force and the International Legal Order”, in: M. Evans (ed.), International Law, 2003, 589 et seq. (611): “[T]he Secretary-General showed an optimistic and expansionist approach.” The term “sovereignty” may be out of place for UN administrations of territory, as it is historically associated with the patrimony of states with definable sovereigns, see I. Brownlie, Principles of Public International Law, 6th edition, 2003, 108. However, whatever terminology is used, the powers exercised by UNTAET resemble very closely those of a territorial sovereign. S. Chesterman, You the people, The United Nations, transitional administration, and state-building, 97. Report of the Panel on United Nations Peace Operations, Doc. A/55/305 – S/2000/809 of 21 August 2000, para. 78. See the contribution of E. Afsah and A. Guhr in this Volume. Benzing, Case Study – East Timor 299 simple case of territorial administration.14 One may add that the population of East Timor was and is rather homogenous and not divided by ethnic and social tensions as in Kosovo.15 Furthermore, it generally welcomed the involvement of the United Nations as the guarantor for independence, peace and security, and the reconstruction of the infrastructure.16 Still, calling East Timor an “easy” case is a rather optimistic, or maybe rash, judgement: East Timor (after the INTERFET intervention) may have been a straightforward task in terms of peace-keeping,17 but in terms of UNTAET’s actual mission, (re)construction of a territory, capacity building, and the preparation for independence, in short: “state-building”, it was probably as difficult as it gets. For instance, East Timor had no experience with democracy, or even self-rule.18 Thus, even though superficially the parameters on the whole seemed propitious, UNTAET had to face, and retrospectively still faces, serious criticism regarding the implementation of its mandate. The present paper will start with a short historical outline (II.). It will then describe and discuss the various forms of UN engagement in East Timor up to the state’s independence, starting with the conclusion of the agreements of 5 May 1999 and the establishment of the United Nations Mission in East Timor (UNAMET) (III.), the International Force in East Timor (INTERFET) (IV.), and UNTAET (V.). It will then analyse the preparations for independence and the first steps of the independent Timor-Leste, including the role of the United Nations Mission of Support in East Timor (UNMISET) and the United Nations Office in Timor-Leste (UNOTIL) (VI.), before offering some concluding remarks (VII.). 14 15 16 17 18 Chesterman, see note 11, 60: “[T]he certainty as to the political outcome … was also key to the political success of the … ambitious state-building exercise in East Timor.” Compare Traub, see note 1, 81. J. Morrow/ R. White, “The United Nations in Transitional East Timor: International Standards and the Reality of Governance”, Austr. Yb. Int’l L. 22 (2002), 1 et seq. (43). Traub, see note 1, 88. Traub, see note 1, 75; T. Hohe, “The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor”, Contemporary Southeast Asia 24 (2002), 569 et seq. 300 Max Planck UNYB 9 (2005) II. Decolonisation, Interrupted: The Historical Background The first Portuguese traders arrived in East Timor in the early 16th century, attracted by the islands most precious resource, sandalwood.19 The Dutch, who had established colonies in Java and Sumatra, claimed the Western half of Timor. In 1859/1860, the two colonial powers formally divided the island between the Dutch in the West and the Portuguese in the East (including the enclave of Oecussi in West Timor).20 During World War II, despite Portugal’s neutrality, Japan invaded East Timor in February 1942, occupying it until September 1945. Approximately 50,000 Timorese lost their lives as a result of the occupation. After World War II, Indonesia gained its independence from the Netherlands. In 1949, West Timor became part of Indonesia, whereas East Timor remained under Portuguese rule. In Resolution 1542 (XV) of 15 December 1960, the UN General Assembly designated East Timor the status of a Non-Self-Governing Territory under Chapter XI of the UN Charter and referred to Portugal as the administering power, an appraisal reiterated in Resolution 3485 (XXX) of 12 December 1975. Portugal, however, between 1955 (the time of its UN membership) and 1974, was more than unwilling to accept the obligations following from Article 73 of the Charter.21 The situation changed when, in 1974, the Portuguese Armed Forces (AFM) overthrew the Caetano regime in Portugal. The new government accepted its duties under Chapter XI and favoured progressive autonomy for the colonies, acknowledging the population of East Timor’s right to self-determination.22 News of the change soon sifted through to East Timor. At that time, an estimated number of 688,000 people inhabited the territory, 97 per cent of them indigenous East 19 20 21 22 For the colonial history of East Timor compare M. Schlicher, Portugal in Ost-Timor, eine kritische Untersuchung zur portugiesischen Kolonialgeschichte in Ost-Timor (1850-1912), 1996. Compare Schlicher, see note 19, Chapter 4 (107-128). See R.S. Clark, “The ‘Decolonization’ of East Timor and the United Nations Norms on Self-Determination and Aggression”, The Yale Journal of World Public Order 7 (1980), 2 et seq. (3). Clark, see note 21, 5; Conflict Security & Development Group, King’s College London, A Review of Peace Operations: A Case for Change, East Timor Report, 28 February 2003, available at <http://ipi.sspp.kcl.ac.uk/ rep006/index.html>, para. 3. Benzing, Case Study – East Timor 301 Timorese.23 Several political parties were formed. The most important ones were the Timorese Democratic Union (União Democrática Timorense, UDT) and the Timorese Social Democratic Association (Associação Social Democrática Timor, ASDT). While the UDT favoured an extended transitional period of federation with Portugal, the ASDT preferred independence. Finally, the Timorese Popular Democratic Association, or Apodeti, had as its goal the autonomous integration of East Timor into the Republic of Indonesia. In late 1974, the ASDT changed its name to Fretilin (Frente Revolucionária do Timor Leste Independente), or Revolutionary Front for an Independent East Timor. With the change of name came a change in policy: “ASDT was formed to defend the idea of the right to independence: Fretilin was formed to fight for independence.”24 Their different visions for the future, as well as the fight over political power in East Timor between the two parties led to a civil war between the UDT and Fretilin, the latter emerging victorious with the help of its armed wing, Falintil (Forças Armadas de Liberatação National de Timor Leste).25 On 28 November 1975, Fretilin declared independence and proclaimed the “Democratic Republic of East Timor”. The hope for an independent East Timor ended only a few days later, on 7 December 1975, when Indonesia, following an “invitation” by the UDT which hoped to regain control, invaded East Timor. After a General Assembly resolution had condemned the action of Indonesia,26 the UN Security Council, though not acting under Chapter VII of the Charter, followed suit by stressing the “inalienable right of the people of East Timor to self-determination and independence”, demanding an immediate withdrawal of all Indonesian troops from the territory.27 In 23 24 25 26 27 Benvenisti, see note 4, 154. Founding member of Fretilin, quoted in: J.G. Taylor, “Decolonisation, independence and invasion”, in: Catholic Institute for International Relations/ International Platform of Jurists for East Timor (eds), International Law and the Question of East Timor, 1995, 21 et seq. (29). J. Steele, “Nation Building in East Timor”, World Policy Journal 19 (2002), 76 et seq. (77). A/RES/3485 (XXX) of 12 December 1975. The General Assembly continued to adopt resolutions regarding the question of East Timor until 1982. The Resolution in this context is A/RES/37/70 of 23 November 1982. After this date, even though the territory remained on the Assembly’s agenda, no more resolutions were adopted. See M. Rothert, “U.N. Intervention in East Timor”, Colum. J. Transnat’l L. 39 (2000-2001), 257 et seq. (259). S/RES/384 (1975) of 22 December 1975. 302 Max Planck UNYB 9 (2005) spite of the international condemnation of its actions, Indonesia proceeded to annex the territory and declared East Timor its 27th province on 17 July 1976. The Security Council reiterated its call for withdrawal once more in April 1976, again not using its Chapter VII powers.28 After this resolution, for a period of 23 years, i.e. until May 1999, the UN Security Council did not deal with the question of East Timor. The General Assembly proved more persevering and kept up its protest until 1983. Since then, an item on the “Question of East Timor” was included on the agenda of every session of the General Assembly. However, its consideration was regularly deferred on the recommendation of the General Committee.29 The reasons for the waning of interest of the international community in the future of East Timor may be found in the strategic importance of Indonesia.30 While the UN organs withheld recognition of the incorporation of East Timor into Indonesia, and East Timor remained on the list of selfgoverning territories, with the agreement of Portugal as the Administering Power,31 Australia was the only state to recognise Indonesia’s claim to East Timor, first de facto,32 then de jure.33 In 1991, Australia and Indonesia concluded the “Timor-Gap-Treaty” which designates East Timor as an Indonesian province. The conclusion of the treaty spurred protest from Portugal, which subsequently took the case to the ICJ. The Court did not decide on the merits of the case, holding that it lacked jurisdiction, as Indonesia as an indispensable third party had not joined the proceedings.34 The resistance by the East Timorese population was constant, but changed in shape from military opposition, led by Falintil until the mid-1980s to a broader civilian resistance movement, joined by many 28 29 30 31 32 33 34 S/RES/389 (1976) of 22 April 1976. ICJ, Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, 90 et seq., Sep. Op. Judge Oda, 107 et seq. (117). Benvenisti, see note 4, 157. See A. Cassese, Self-determination of peoples, A legal reappraisal, 1995, 223, at fn. 25. On 18 July 1977 and 20 January 1978, see R. Goy, “L’indépendance du Timor oriental”, A.F.D.I. 45 (1999), 203 et seq. (211). In February 1979, see Australian Practice in International Law 1978-1980, Austr. Yb. Int’l L. 8 (1978-1980), 281-282. ICJ, see note 29, 90 et seq. Benzing, Case Study – East Timor 303 young East Timorese,35 from the beginning of the 1990s.36 Despite repressions by the Indonesian authorities, public protests increased. One of those public displays of resistance caught the world’s attention most, though sadly for its blood toll: the massacre at Santa Cruz cemetery on 12 November 1991, where Indonesian military opened fire on protesters at close range, killing more than 270 people.37 It was this massacre that brought the political conflict in East Timor back on the public agenda. However, it was only when Bishop Carlos Belo and José Ramos Horta were awarded the Nobel Peace Price in 1996 for their work towards a just and peaceful solution to the conflict in East Timor that international policy towards Indonesia became more and more critical, even though as long as Suharto was in power, little changed on the ground.38 In 1997, the Council for Timorese Resistance (CNRT) was established by leaders of the UDT and Fretilin as an umbrella organisation of groups that opposed Indonesian integration.39 Indonesia’s urgent need for international assistance by the International Monetary Fund (IMF) caused by the Asian financial crisis of 1997 enabled the international community to exert pressure on Indonesia.40 Thus, the question of the status of East Timor was raised again when Bacharuddin J. Habibie followed Suharto as Indonesian President in 1998 and signalled his willingness to discuss the future status of East Timor. An agreement between Indonesia and Portugal, with endorsement by the United Nations, was concluded on 5 May 1999, in which the East Timorese people were finally given the opportunity to vote on their political future in a free, UN-monitored election. The two options available were “special autonomy” within Indonesia or independence.41 35 36 37 38 39 40 41 See D. Kingsbury, “East Timor to 1999”, in: id. (ed.), Guns and ballot boxes, 2000, 17 et seq. (23). See M. Schlicher/ A. Flor, “Osttimor – Konfliktlösung durch die Vereinten Nationen”, Die Friedenswarte 78 (2003), 251 et seq. (256). Kingsbury, see note 35, 24. Schlicher/ Flor, see note 36, 258. Kingsbury, see note 35, 25. J. Cotton, “Against the Grain: The East Timor Intervention”, Survival 43 (2001), 127 et seq. (133). Agreement between the Republic of Indonesia and the Portuguese Republic on the question of East Timor, Annex I to the Report of the SecretaryGeneral on the Question of East Timor, Doc. A/53/951 – S/1999/513 of 5 May 1999. The question put to the people of East Timor was “Do you ac- 304 Max Planck UNYB 9 (2005) The security arrangements for the referendum were left to the Indonesian military.42 In a second agreement, also concluded on 5 May 1999, Indonesia, Portugal and the United Nations specified the modalities for the popular consultation.43 To organise and supervise the vote, the Security Council established UNAMET on 11 June 1999.44 Initially planned for 8 August, the referendum eventually took place on 30 August 1999. With an overall turnout of 98 per cent, 78.5 per cent of the votes were cast in favour of independence. Whereas the unrest before the vote was sporadic and controllable,45 violence escalated following the public announcement of the result of the popular vote. Pro-Indonesian militia, apparently supported by parts of the Indonesian military, engaged in a scorched earth campaign. Several hundred East Timorese men and women were killed,46 and virtually the entire remaining population fled.47 According to UN reports, a quarter of the population (about 200,000 people) fled or was displaced to West Timor,48 and as many as 500,000 fled to the mountains or sought refuge in church institutions. Militias moved from town to town, looting and burning most of the houses; hence most of the infrastructure, up to 75 per cent, including most buildings in the capital, Dili, were destroyed. The Security Council reacted within a matter of weeks and, following negotiations on which nation would lead an international military force to pacify the situation,49 passed Security Council Resolution 1264 42 43 44 45 46 47 48 49 cept the proposed special autonomy for East Timor within the unitary state of the Republic of Indonesia?” or, “Do you reject the proposed special autonomy for East Timor, leading to East Timor’s separation from Indonesia?” Article 3 of the Agreement. Agreement regarding the modalities for the popular consultation of the East Timorese through a direct ballot; East Timor popular consultation, Annexes II and III to the Report of the Secretary-General on the Question of East Timor, see note 41. S/RES/1246 (1999) of 11 June 1999. Chesterman, see note 11, 60. J. Chopra, “The UN’s Kingdom of East Timor”, Survival 42 (2000), 27 et seq. Traub, see note 1, 78. United Nations Office of the High Commissioner for Human Rights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, Doc. A/54/726 - S/2000/59 of 31 January 2000, para. 93. See below under IV. Benzing, Case Study – East Timor 305 on 15 September 1999. The Council determined that the situation amounted to a threat to peace and security and authorised the establishment of a multinational force, which was subsequently set up under Australian lead under the name of INTERFET. The deployment of troops in East Timor began on 20 September 1999. With a strength of ultimately 11,500 troops, INTERFET was successful in putting an end to the assaults. The formal recognition of the result of the popular consultation by the Indonesian People’s Consultative Assembly on 19 October 1999 contributed to the territory’s pacification. On 25 October 1999, Security Council Resolution 1272 established the United Nations Transitional Administration in East Timor (UNTAET), “endowed with overall responsibility for the administration of East Timor”.50 UNTAET not only comprised civil components, but also had a military branch with a strength of up to 8,950 troops. On 28 February 2000, the hand-over of command from INTERFET to UNTAET was completed. The Secretary-General, Kofi Annan, appointed Sergio Vieira de Mello from Brazil, formerly head of UNMIK, as his Special Representative and Transitional Administrator. The preparations for independence began with the election of a Constituent Assembly on 30 August 2001.51 It was the first democratically elected representative body in the history of East Timor with the primary task to draft a constitution for an independent and democratic East Timor. In April 2002, Xanana Gusmão was elected first president with an 82.7 per cent majority of the total votes cast. After several centuries of Portuguese colonial rule, 24 years of Indonesian occupation and two and a half years of administration by the United Nations, East Timor gained its independence on 20 May 2002. At the same date, UNTAET ceased to exist and was replaced by UNMISET,52 which remained in East Timor until May 2005 when UNOTIL started operating. 50 51 52 S/RES/1272 (1999) of 25 October 1999, para. 1. UNTAET/REG/2001/2 of 16 March 2001. S/RES/1410 (2002) of 17 May. 306 Max Planck UNYB 9 (2005) III. From UNAMET to INTERFET: The Referendum on Independence On 7 May 1999, the Security Council welcomed the agreements of 5 May 1999, noted the Secretary-General’s concerns regarding the security situation, and expressed its intention to make a prompt decision regarding the establishment of a UN mission as soon as the SecretaryGeneral had outlined the details in a report,53 which he did on 22 May.54 UNAMET was eventually established by Security Council Resolution 1246 on 11 June 1999. In case of a vote in favour of independence, it was planned to have UNAMET followed by a successor mission, UNAMET II, pending the acceptance of the vote by the Indonesian parliament, which would prepare a larger UN presence. For spring 2000, the UN envisaged to establish a transitional authority (UNAMET III) controlling the gradual withdrawal of Indonesia’s military units and administrative apparatus.55 The popular consultation was conducted under difficult logistical conditions. Many outside observers feared that the window for a peaceful transition opened by President Habibie may close at any time,56 given that the consultation more or less coincided with the elections in Indonesia. Time was consequently of the essence. On the other hand, the tight timeframe proved problematic regarding the tasks to be performed.57 Apart from operating under a strict schedule, the gravest concerns UNAMET had to face concerned the security situation. Many outside observers predicted a landslide vote in favour of independence from Indonesia. It was equally anticipated that this outcome might spark violence from the side of pro-Indonesian groups or the Indonesian army itself. At the same time, the Indonesian authorities apparently trusted that the outcome would be in favour of a union with Indonesia.58 On the other hand, the Indonesian government apparently did not control 53 54 55 56 57 58 S/RES/1236 (1999) of 7 May 1999. Report of the Secretary-General, Doc. S/1999/595 of 22 May 1999. J. Chopra, “Building State Failure in East Timor”, Development and Change 33 (2002), 979 et seq. (983). See Schlicher/ Flor, see note 36, 261. I. Martin, Self-Determination in East Timor – The United Nations, the Ballot, and International Intervention, 2001, 37. Chesterman, see note 11, 61; Traub, see note 1, 76. Benzing, Case Study – East Timor 307 the Indonesian Army (TNI), which seemed reluctant to release East Timor into independence peacefully and then leave.59 Accordingly, in the spring of 1999, UN Secretary-General Kofi Annan requested Jakarta to disarm the pro-Indonesian militias operating in East Timor and permit foreign troops to supervise the voting process.60 Indonesia refused, and the United Nations accepted the apparently inevitable, sending only 300 unarmed police officers to assist UNAMET. The United Nations was nevertheless aware of the risk posed by putting the security arrangements solely in the hands of the Indonesian authorities. For instance, in the agreement between Indonesia, Portugal and the United Nations concerning the popular consultation, the “absolute neutrality” of the Indonesian Armed Forces and the Indonesian Police were marked as essential to the holding of a free and fair ballot in East Timor.61 Nevertheless, in spite of all warning signs, the UN Secretariat was unable to prepare for post-referendum contingencies, such as violent incidents.62 The paramount reason for this inaction may be seen in the constraints put on the United Nations which forestalled any open planning for independence in the delicate political climate.63 The vote itself proceeded surprisingly peacefully. The announcement of the result, however, triggered the outbreak of violence, making all planning for UNAMET successor missions and an orderly transfer of power obsolete. On 14 September 1999, the UNAMET compound was closed and its members evacuated to Australia, save 12 people who awaited the arrival of an international force.64 IV. From INTERFET to UNTAET After intense pressure from the international community, and following discussions at a serendipitously timed APEC summit,65 President Habibie requested the United Nations for assistance to restore peace 59 60 61 62 63 64 65 Chesterman, see note 11, 61. Traub, see note 1, 77. Annex III. Chesterman, see note 11, 49-50. Chesterman, see note 11, 61. Martin, see note 57, 101. See Chesterman, see note 11, 62-63. 308 Max Planck UNYB 9 (2005) and security in East Timor,66 specifically mentioning a Chapter VII mandate.67 In a letter dated 14 September 1999 to the SecretaryGeneral, the Australian Foreign Minister informed the SecretaryGeneral that Australia would be willing to accept the leadership of a multinational force in East Timor and “was prepared to make a substantial contribution to the force itself”.68 The reasons for Australia’s willingness to take the lead were multifaceted: first, the domestic political discussion put pressure on the Prime Minister to take action in the neighbouring region; second, a refugee crisis was looming; finally, a certain feeling of responsibility for the fate of East Timor due to past activities and policies on the side of Australia may have played a role.69 Ironically, Australia, the only state that had recognised Indonesia’s claim to East Timor, now volunteered to “act in defence” of the right to self-determination of the territory’s population. As mentioned, Indonesia had requested the establishment of a multinational force on 12 September 1999, as was noted in the Preamble to Security Council Resolution 1264.70 It has been suggested that this consent was given far from voluntarily but rather came about as a result of intensive pressure from the international community.71 It is questionable whether this is of more than political relevance. Consent is a requirement of traditional peacekeeping missions.72 Given that Indonesia was illegally occupying East Timor, it is doubtful whether its consent would have been required; as a practical matter, it certainly was necessary.73 However, the Security Council determined that the situation in East Timor amounted to a threat to peace and security and expressly authorised states participating in the multinational force to “take all 66 67 68 69 70 71 72 73 Martin, see note 57, 112. Martin, see note 57, 114; Traub, see note 1, 79. Doc. S/1999/975; Press Release Doc. SC/6727 of 15 September 2004. Compare Cotton, see note 40, 135; Chesterman, see note 11, 63. S/RES/1264 (1999) of 15 September 1999, preambular para. 10. See M. Ruffert, “The Administration of Kosovo and East-Timor by the International Community”, ICLQ 50 (2001), 613 et seq. (616), A.J.J. de Hoogh, “Attribution or Delegation of (Legislative) Power by the Security Council? The Case of the United Nations Transitional Administration in East Timor (UNTAET)”, International Peacekeeping 7 (2001), 1 et seq. (11). M. Bothe, “Peace-keeping” in: Simma, see note 5, MN 84. Chesterman, see note 11, 62. Benzing, Case Study – East Timor 309 necessary measures to fulfil [the] mandate”.74 The Security Council, under the legal avenue it chose to take did not have to rely on Indonesia’s consent, nor did the consent given alter the unilateral nature of the resolution.75 The legality of Security Council Resolution 1264 consequently does not depend on the free consent of Indonesia, but rather on the elements necessary to authorise peace-enforcement missions by individual states under Chapter VII of the Charter, most importantly, a threat to the peace. It is interesting, also for the analysis of UNTAET’s legal basis,76 to ask what exactly constituted the threat to the peace referred to in Security Council Resolution 1264. First, and most obvious, this threat was to be seen in the ongoing humanitarian catastrophe in East Timor (i.e. the reports of “systematic, widespread and flagrant violations of international humanitarian and human rights law” and the “large scale displacement and relocation of East-Timorese civilians”).77 Second, the language of the resolution suggests that the interference with the exercise of the right to self-determination by the East Timorese was of equal importance: the Security Council expressed “its welcome for the successful conduct of the popular consultation of the East Timorese people of 30 August 1999” and took “note of its outcome, which it regards as an accurate reflection of the views of the East Timorese people”.78 According to operative paragraph 3 of the resolution, INTERFET had the following tasks: “[T]o restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks and, within force capabilities, to facilitate humanitarian assistance operations.” INTERFET began deployment to East Timor on 20 September 1999. It was the first time that Australia acted as a lead nation within a coalition 74 75 76 77 78 S/RES/1264 see note 70, para. 3. C. Tomuschat, “Yugoslavia’s Damaged Sovereignty over the Province of Kosovo“, in: G. Kreijen (ed.), State, Sovereignty, and International Governance, 2002, 323 et seq. (339). See under V. 3. It is commonly accepted that purely humanitarian issues, including grave violations of human rights, can amount to threats to international peace and security. Compare only J. Frowein/ N. Krisch, “Article 39”, in: Simma, see note 5, MN 19-21. Preambular para. 3, emphasis added. Compare Rothert, see note 26, 277. 310 Max Planck UNYB 9 (2005) for a peace operation.79 While the Association of Southeast Asian Nations (ASEAN) hesitated to take the leadership role for resolving the regional conflict due to its traditional reluctance to intervene in what it considered “internal affairs” of its members,80 individual member states of ASEAN contributed significantly to the intervention force once it was mandated by the Security Council: the Thai military component, consisting of 1,580 soldiers, formed the second-largest element; other support came from the Philippines, Singapore and Malaysia.81 In theory, even after the military intervention, the maintenance of law and order (internal security), a task later on specifically conferred on UNTAET,82 still lay in the hands of the Indonesian police and military forces. However, this was illusive, as the Indonesian military and police forces had withdrawn from the territory. The lead nation, Australia, consequently interpreted the mandate to restore peace and security as implying the authority to arrest individuals accused of having committed serious offences.83 The basis for such authority was seen in Security Council Resolution 1264, paragraph 1, which emphasized the responsibility of individuals committing violations of international humanitarian law and demanding that they be brought to justice.84 INTERFET’s intervention brought about substantial security of the territory.85 The demands of security were hence superseded by calls for political and economic development in preparation for independence.86 With the territory pacified, the United Nations proceeded to the task assigned to it under the 5 May agreements, i.e. the administration of the 79 80 81 82 83 84 85 86 M.J. Kelly/ T.L.H. McCormack/ P. Muggleton/ B.M. Oswald, “Legal aspects of Australia’s involvement in the International Force for East Timor”, Int’l Rev. of the Red Cross 83 (2001), 101 et seq. (111). See M. Caballero-Anthony, “The Regionalization of Peace in Asia”, in: M. Pugh/ W.P.S. Sihdu (eds), The United Nations & Regional Security, Europe and Beyond, 2003, 195 et seq. (204-207). See A. Dupont, “ASEAN’s Response to the East Timor Crisis”, Australian Journal of International Affairs 54 (2000), 163 et seq. S/RES/1272 (1999) of 25 October 1999, para. 2. First periodic report on the operations of the multinational force in East Timor, Doc. S/1999/1025 of 4 October 1999, Appendix, para. 23; Chesterman, see note 11, 113. Chesterman, see note 11, 117. See Report of the Secretary-General on the United Nations Transitional Administration in East Timor, Doc. S/2000/53 of 26 January 2000, para. 2. Chesterman, see note 11, 64. Benzing, Case Study – East Timor 311 territory and the initiation of a process of transition towards independence. V. The United Nations’ Kingdom of East Timor? Transitional Administration under UNTAET 1. Preparations Leading up to UNTAET As mentioned, the idea of an international administration for East Timor under the control of the United Nations was not born after the military intervention by INTERFET, and thus not an immediate reaction to the violence devastating the region after result of the popular consultation was made public. In fact, it had already been conceived in the agreement setting out the details of the popular consultation that, in case of a vote rejecting the autonomy arrangement with Indonesia: “the Governments of Indonesia and Portugal and the SecretaryGeneral shall agree on arrangements for a peaceful and orderly transfer of authority in East Timor to the United Nations. The Secretary-General shall (...) initiate the procedure enabling East Timor to begin a process of transition towards independence.”87 Clearly, the view of the contracting parties was that for lack of local capacity after the withdrawal of the Indonesian authorities, a period of United Nations administration was necessary until the East Timorese people were in a position to take governance of their territory into their own hands.88 In the light of the fact that the agreement stated that “authority”, in general and without any restriction, was to be transferred to the United Nations, critics of the intensity or intrusiveness of the transitional administration89 must concede that the degree of powers bestowed on UNTAET was not the result of an autocratic decision of the Security Council. 87 88 89 Article 6, Agreement between the Republic of Indonesia and the Portuguese Republic on the question of East Timor, 5 May 1999, reprinted as Annex I to the Report of the Secretary-General on the Question of East Timor, Doc. A/52/951 - S/1999/513 of 5 May 1999, 4 et seq. (7) (emphasis added). R. Wilde, “The United Nations as Government: The Tensions of an Ambivalent Role”, ASIL Proc. 97 (2003), 212 et seq. (214). As to such criticism see J.S. Kreilkamp, “U.N. Postconflict Reconstruction”, N.Y.U. J. Int’l L. & Pol. 35 (2003), 619 et seq. (652). 312 Max Planck UNYB 9 (2005) Consequently, the Security Council, already in the resolution mandating INTERFET, invited the Secretary-General “to plan and prepare for a United Nations transitional administration in East Timor, incorporating a United Nations peacekeeping operation” for the time after the intervention and pacification of the territory.90 The time pressure now on the United Nations allowed for only the most cursory planning,91 even though the United Nations had anticipated an outcome favouring independence and should have started planning for the handover of power to the United Nations well in advance. Again, the lack of preparation may be explained by the sensitivity of the issue of independence, in particular with regard to the Indonesian position.92 The Secretary-General delivered his report setting out the basic structures and mission of UNTAET on 4 October 1999.93 It was to have three main components or pillars: a governance and public administration component; a humanitarian assistance and emergency rehabilitation component; and a military component.94 The Security Council eventually established UNTAET with resolution 1272 on 25 October 1999. The mandate was extended twice until East Timor’s independence in May 2002.95 Even though it was initially referred to as a “peace-keeping operation”,96 it was established under Chapter VII of the UN Charter, one reason being that it took over the military duties from INTERFET and as such had to be authorised to use “all necessary measures” to fulfil its mandate.97 During the planning phase leading up to the establishment of UNTAET, East Timorese representatives were not involved,98 even though such involvement clearly would have been desirable already at that stage to “support capacity building for self-government”, one of 90 91 92 93 94 95 96 97 98 S/RES/1264 (1999) of 15 September 1999, para. 11. A. Goldstone, “UNTAET with Hindsight: The Peculiarities of Politics in an Incomplete State”, Global Governance 10 (2004), 83 et seq. (85). See I. Martin, Self-determination in East Timor, 2001, 127. Report of the Secretary-General on the Situation in East Timor, Doc. S/1999/1024 of 4 October 1999. Doc. S/1999/1024, para. 38. S/RES/1338 (2001) of 31 January 2001; S/RES/1392 (2002) of 31 January 2002. S/RES/1264, see note 70, para. 11. S/RES/1272 see note 50, para. 3. Chopra, see note 46, 32; id., see note 55, 990. Benzing, Case Study – East Timor 313 the main objectives of the transitional administration.99 The reason for this omission may be found in the logic of the political process around the 5 May agreements. The negotiations leading to the agreements had not involved East Timorese leaders directly, which was probably a political necessity, as the decision to include East Timorese in the talks may have rendered the negotiations impossible due to Indonesian concerns.100 A detailed proposal for a joint Timorese-UN administration of the territory prepared by Timorese leaders was handed over to UNAMET in mid-October 1999, but never forwarded to the Security Council.101 Even though Indonesia gave its consent to the establishment of the international administration of East Timor, it is argued, similarly to the discussion on INTERFET, that this consent was “reduced” to a great extent due to military pressure.102 Even though this pressure was certainly real, Indonesia’s consent had already been given in advance in the 5 May agreements. Nevertheless, possibly anticipating such criticism, Security Council Resolution 1272, in contrast to Security Council Resolution 1264, did not refer to any consent by Indonesia to the establishment of UNTAET, beyond a general reference to the importance of cooperation between Indonesia, Portugal and UNTAET in the implementation of the resolution.103 In contrast to the UN missions in Bosnia and Kosovo, the political endpoint of the transitional administration was never in doubt, given that a clear majority of the East Timorese population had decided in favour of independence in a process that had been agreed by all relevant parties. Even if the goal was clear, the manner in which it was to be reached proved problematic and disputed. 99 100 101 102 103 S/RES/1272, see note 50, para. 2 (e). See A. Suhrke, “Peacekeepers as Nation-builders: Dilemmas of the UN in East Timor”, International Peacekeeping 8 (2001), 1 et seq. (4). Steele, see note 25, 79. Ruffert, see note 71, 616; M. Bothe/ T. Marauhn, “UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration” in: C. Tomuschat (ed.), Kosovo and the International Community – A Legal Assessment, 2002, 217 et seq. (233). Gray, see note 8, 231. 314 Max Planck UNYB 9 (2005) 2. The Legality of Security Council Resolution 1272 (1999) In the discussion on the legality of a territorial administration such as UNTAET, one has to differentiate between the legality of the establishment of the territorial administration by the Security Council (in the present case S/RES/1272), on the one hand, and the issue of the lawfulness of the actions performed by the territorial administration on the other, including the legal limits imposed on the administration as a matter of international law. The first question, addressed in this section, essentially pertains to the competence of the Security Council as an organ of the United Nations to institute a territorial administration, in particular one vested with such wide-sweeping powers as UNTAET. The second issue will be analysed in the following section. In older literature, the view has been put forward that the Charter does not permit the Security Council to exercise direct administrative authority in a territory in any form.104 However, as observed earlier, the exercise of such powers by the United Nations under Chapter VII of the Charter has been discussed at as early a stage as the San Francisco Conference.105 Likewise, the practice of the Security Council points in a different direction.106 Thus, recent academic comments in their majority disagree with the narrow interpretation advocated by Kelsen. In particular, it is argued that Chapters XII and XIII of the Charter do not conclusively regulate the powers of the Security Council in the area of territorial administration, thus preventing administration under Chapter VII. A historical and teleological interpretation of those chapters leads to the result that they apply only in the (immediate) post-colonial context and cannot have been intended to regulate United Nations powers conclusively in terms of territorial administration outside this narrow scope of applicability.107 Thus, today, only few voices would doubt the competence of the Security Council to administer a territory on a temporary basis, and its 104 105 106 107 H. Kelsen, The Law of the United Nations, 1961, 832 et seq. See above at note 5. For an early discussion of the practice of UN organs with respect to the administration of territory outside Chapter XII see J.W. Halderman, “United Nations Territorial Administration and the Development of the Charter”, Duke Law Journal 1964, 95 et seq. Bothe/ Marauhn, see note 102, 235; E. de Wet, The Chapter VII Powers of the United Nations Security Council, 2004, 318; Frowein/ Krisch, see note 5, MN 21. Benzing, Case Study – East Timor 315 power to delegate this authority to the Secretary-General,108 even though no obvious legal basis for such action of the Security Council is to be found in the UN Charter.109 The international community seems to have accepted territorial administration as a legitimate means to resolve conflicts,110 allowing the conclusion that the UN members have acquiesced in including this form of undertaking within the ambit of competences of the Council under Chapter VII of the Charter.111 The exact legal basis for the establishment of territorial administrations by the Security Council is still disputed among the academic community, several options being discussed. A legal basis may be sought in explicit provisions of Chapter VII of the UN Charter.112 Thus, a territorial administration may be based on Article 41,113 as a “measure not involving the use of armed force” if, and to the extent that, this instrumentality is necessary to maintain or restore international peace and security. Article 42 could serve as a legal basis for the 108 109 110 111 112 113 Chesterman, see note 11, 54; D. Sarooshi, The United Nations and the Development of Collective Security, 1999, 59-63. Bothe/ Marauhn, see note 102, 231; J.A. Frowein, “Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen”, in: H.W. Arndt et al. (eds), Völkerrecht und Deutsches Recht – Festschrift für Walter Rudolf, 2001, 43 et seq. (43). E. de Wet, “The Direct Administration of Territories by the United Nations and its Member States in the Post Cold War Era: Legal Bases and Implications for National Law”, Max Planck UNYB 8 (2004), 291 et seq. (312); R. Wolfrum, “The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is there a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?”, Max Planck UNYB 7 (2003), 1 et seq. (69). See article 31 (3)(b) Vienna Convention on the Law of Treaties. Even though UNTAET was established with the consent of Indonesia (see under V.1.), this did not hinder the Security Council from using its Chapter VII powers. For a different approach see de Wet, see note 110, 314, who argues that, “given the consensual nature of the measures, it would not seem conceptually accurate to regard an article placed in Chapter VII … as the basis for the Security Council’s powers”. Bothe/ Marauhn, see note 102, 232; B. Kondoch, “The United Nations Administration of East Timor”, Journal of Conflict and Security Law 6 (2001), 245 et seq. (256-257); M.J. Matheson, “United Nations Governance of Postconflict Societies”, AJIL 95 (2001), 76 et seq. (83); Kondoch, see note 8, 25. 316 Max Planck UNYB 9 (2005) military component of the administration.114 These articles may be seen in conjunction with the power of the Security Council to establish subsidiary organs (Article 29 of the Charter) and to delegate certain powers to the Secretary-General (Article 98 of the Charter). Another way to arrive at the legality of the establishment of international administrations is by looking at implied powers of the Security Council as basis for the resolution.115 Given that UNTAET was established under Chapter VII, providing it with a mandate independent from the consent of the parties concerned, the basis may be an implied power derived from the Security Council’s authority to take nonmilitary measures and actions involving the use of force for the maintenance or restoration of international peace and security. In all viable scenarios under Chapter VII, the Security Council has to determine the existence of a threat to the peace. In the case at hand, the Council determined that “the continuing situation in East Timor” constituted a threat to peace and security.116 By this it unquestionably referred to the persisting humanitarian crisis in East Timor. In addition, it must be taken to relate to the interference, direct and indirect, with the exercise of the right to self-determination by Indonesia, which already qualified for the “threat to the peace” on which the resolution establishing INTERFET was based.117 Thus, even though the initial threat to the peace was tackled by way of military intervention (INTERFET), the Security Council could legally establish a territorial administration to guarantee a peaceful future for the territory, as further steps seemed necessary to re-establish peace.118 114 115 116 117 118 Frowein/ Krisch, see note 5, MN 21. In the case of UNTAET, see Security Council Resolution 1272, see note 50, operative para. 3 (c). Ruffert, see note 71, 620; de Wet, see note 107, 315. S/RES/1272, see note 50, preambular para. 16. As to the significance of self-determination for S/RES/1244, see note 3 and in relation to Kosovo and UNMIK compare Tomuschat, see note 75, 341, as well as J. Friedrich, in this Volume. See Frowein, see note 109, 44. Benzing, Case Study – East Timor 317 3. Powers of UNTAET and Limits thereto under International Law a. The Status of East Timor from the Establishment of UNTAET to Independence Before the establishment of UNTAET on 25 October 1999, East Timor was a non-self-governing territory within the meaning of Article 73 of the UN Charter.119 Even though Indonesia claimed title to the territory and exercised de facto control, its claim to title was unfounded as it was based on forceful annexation of the territory,120 was only recognised by one single state, Australia, and continuously rejected by the United Nations. Thus, Portugal, as the administering power that had not abandoned its title to East Timor,121 still held the de jure title over the territory of East Timor. While it is common ground that UNTAET exercised not only elements of, but virtually the entire range of sovereign powers over East Timor,122 the precise legal position of East Timor in the time between 25 October 1999 and 20 May 2002 is a matter of considerable debate. It could be argued that East Timor in that phase was part of Portugal, but came under (exclusive) international administration and juris119 120 121 122 ICJ, see note 29, para. 31; Rothert, see note 26, 268. For an extensive analysis see O. Franz, Osttimor und das Recht auf Selbstbestimmung, 2004, 155176. See Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, A/RES/2625 (XXV) of 24 October 1970, para. 11: “The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force”; S. Torres Bernárdez, “Territory, Acquisition”, in: R. Bernhardt (ed.), EPIL 4 (2000), 831 et seq. (837). In addition, as East Timor under Indonesian rule has to be considered as occupied territory within the meaning of common article 2 of the Geneva Conventions, article 47 of Geneva Convention IV prohibited its annexation, see C. Kreß, “The 1999 Crisis in East Timor and the Threshold of the Law on War Crimes”, Criminal Law Forum 13 (2002), 409 et seq. (438). See Kreß, see note 120, 430-431. Chesterman, see note 11, 2; Chopra, see note 46, 29. Symbolically, this exercise of sovereignty is illustrated by UNTAET occupying the “Governor’s House” in Dili, and Sergio Vieira de Mello, the Transitional Administrator, working in the same office that once was occupied by the Indonesian governor, see Traub, see note 1, 74. 318 Max Planck UNYB 9 (2005) diction, similar to the situation in Kosovo, where the Federal Republic of Yugoslavia kept (albeit only formal) sovereignty over the territory.123 A second option would be a “hybrid”, sui generis structure between a non-state territorial entity, and a state, given that East Timor has been characterised a state-in-waiting.124 It may also be considered that, with S/RES/1272, East Timor became an independent, fully-fledged state under UN administration. International legal scholars have also argued that said resolution, in conjunction with Indonesia’s consent to the establishment of UNTAET, constitutes a “limited transfer of sovereign powers over the territory, a transaction short of a cession”.125 The question is who actually transferred sovereignty (Indonesia clearly did not), and whether “cession” is the correct term, given that the United Nations is not capable of acquiring title to a territory.126 It is clear that East Timor was not part of Indonesia, either before or after 25 October 1999.127 It also does not seem correct to say that Portugal’s de jure title subsisted after S/RES/1272,128 given that the United Nations replaced Portugal as administering power over East Timor. Interestingly, East Timor remained on the list of non-self-governing territories, with UNTAET as the administering power.129 Furthermore, international law does not offer rules for a “hybrid” construction somewhere between a state and an internationalised territory. Neither can East Timor, during the time of UN administration, be described as a modern form of “protectorate”, at least not with its traditional conno- 123 124 125 126 127 128 129 See the contribution of J. Friedrich, in this Volume. See R. Wilde, “The Complex Role of the Legal Adviser When International Organizations Administer Territory”, ASIL Proc. 95 (2001), 251 et seq. (252); id., “International territorial administration and human rights”, in: White/ Klaasen, see note 8, 149 et seq. (168). See also S.D. Krasner, “The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law”, Mich. J. Int’l L. 25 (2003-2004), 1075 et seq., who introduces the concept of “shared sovereignty”. M. Bothe/ T. Marauhn, “The United Nations in Kosovo and East Timor, Problems of a Trusteeship Administration”, International Peacekeeping 6 (2000), 152 et seq. (155). Brownlie, see note 10, 167; C. Stahn, “The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis”, Max Planck UNYB 5 (2001), 105 et seq. (144). See Tomuschat, see note 75, 338. But see Morrow/ White, see note 16, 5. Stahn, see note 128, 115. Benzing, Case Study – East Timor 319 tations130, nor as a trust territory within the meaning of Article 75 of the UN Charter, given that a trusteeship agreement as envisaged under Article 77 (1) UN Charter was never concluded.131 Also, one can also safely say that East Timor did not immediately become an independent state after the UN administration was established. First, East Timor did not claim independence; second, the 5 May agreement on the question of East Timor between Portugal and Indonesia (see note 43 above), in its article 6, foresaw a gradual transition toward independence. Third, no state recognised East Timor as an independent state before May 2002. In the light of these considerations, it seems reasonable to argue that the establishment of a direct and comprehensive administration under international law through the United Nations, de facto exercising exclusive territorial sovereignty, led to the “de-stateification” and consequently to an internationalisation of the territory.132 Territorial sovereignty or title to territory at that time was not held or acquired by any entity, least of all the United Nations. This in turn means that East Timor formed neither part of Portugal nor Indonesia.133 The fact that S/RES/1272 also recognises the “sovereignty and territorial integrity of Indonesia”134 only means that Indonesia had a droit de regard concerning the UN administration in East Timor, nothing more.135 It should be added that the characterisation of East Timor as an “internationalised territory” does not automatically determine the powers, and, perhaps more importantly, the limits thereto, of the international entity administering the territory. Those are to be deduced from international law as applicable to international organisations, and from the instrument(s) that on the one hand “internationalised” the territory, and 130 131 132 133 134 135 Compare, however, S. Oeter, “Die internationalen ‘Protektorate’ in Bosnien-Herzegowina und im Kosovo - Entwicklung und rechtliche Folgeprobleme der UN-Friedensregime”, in: H. Fischer/ U. Froissart/ W. Heintschel von Heinegg/ Ch. Raap (eds), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection, Festschrift für Dieter Fleck, 2004, 427 et seq. (451), who speaks of a ‘functional equivalent’ of a protectorate. See Ruffert, see note 71, 629. R. Wolfrum, Die Internationalisierung staatsfreier Räume, 1984, 21; id., “Internationalization”, in: R. Bernhardt (ed.), EPIL 2 (1995), 1395 et seq. Stahn, see note 129, 121. S/RES/1272, see note 50, preambular para. 12. Bothe/ Marauhn, see note 125, 155. Max Planck UNYB 9 (2005) 320 on the other hand installed its international administration, i.e. Security Council Resolution 1272. b. The Powers Vested in UNTAET Resolution 1272 was drafted much more clearly in terms of the exact authority of the transitional administration in East Timor than was the case in Kosovo.136 Operative paragraph 1 provides that UNTAET “will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice”. In the context of Kosovo, it was not the Security Council resolution establishing the mission, but rather UNMIK’s first regulation that endowed the Special Representative of the Secretary-General with these powers.137 Paragraph 6 makes the Transitional Administrator responsible for all aspects of the United Nations work in East Timor and specifically gives him or her “the power to enact new laws and regulations and to amend, 136 137 The relevant passage of S/RES/1244 (1999) of 10 June 1999, establishing UNMIK, reads: “10. The Security Council … Authorizes the SecretaryGeneral, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo[.]” An even less concrete vesting of authority is contained in S/RES/1031 (1995) of 15 December 1995 for the High Representative in Bosnia-Herzegovina: “26. The Security Council … Endorses the establishment of a High Representative, following the request of the parties, who, in accordance with Annex 10 on the civilian implementation of the [Dayton] Peace Agreement, will monitor the implementation of the Peace Agreement and mobilize and, as appropriate, give guidance to, and coordinate the activities of, the civilian organizations and agencies involved, …” Later in the Resolution, the High Representative was given authority to interpret and define his powers himself: “27. Confirms that the High Representative is the final authority in theatre regarding interpretation of Annex 10 on the civilian implementation of the Peace Agreement;”. UNMIK/REG/1999/1, sec. 1.1: “All 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.” Benzing, Case Study – East Timor 321 suspend or repeal existing ones”. On the other hand, UNTAET/REG/1999/1 clarifies that all powers vested in UNTAET (as a whole) are exercised by the Transitional Administrator, i.e. not only the legislative power expressly mentioned in the underlying Security Council resolution. The respective competences may be characterised as follows: Legislative and administrative power: the legislative instruments enacted by the Special Representative were international in character, 138 and thus belonged to the sphere of international law. However, they had direct effect in the territory of East Timor by virtue of S/RES/1272. In the light of the internationalisation of the territory it does not seem to be correct to say that this direct applicability results from a transfer of sovereign or governmental powers over the territory. It is equally questionable whether it is helpful to characterise those acts as “dual” in character,139 both belonging to the international and domestic legal sphere. As has been argued, East Timor constituted an “internationalised” territory. International law, concretised by the legislative and executive acts performed by the Transitional Administrator, thus applied directly in the territory.140 Hence, law in East Timor during UNTAET’s mandate applied as a matter of international law.141 The legislative and administrative power was exercised through regulations and directives. While the regulations were defined to be legislative acts, directives had a more administrative character and were subordinate to regulations in that they specified the implementation of regulations.142 Interestingly, all draft legislation was forwarded to UN Headquarters in New York for approval prior to promulgation.143 Judicial power: in addition to its competencies in the legislative and administrative sphere, UNTAET had been given full responsibility for the administration of justice. In March 2000, the Transitional Administrator fully delegated this authority in Regulation No. 2000/11, which 138 139 140 141 142 143 As they are promulgated by a subsidiary organ of the Security Council (Article 29 of the Charter); Bothe/ Marauhn, see note 102; Stahn, see note 129, 146. de Wet, see note 110, 331. Compare Wolfrum, see note 132. Even though, in fact, a mixture of norms of domestic and international origin existed, see under 6. a. cc. UNTAET/REG/1999/1, sec. 6.1. Morrow/ White, see note 16, 27. Max Planck UNYB 9 (2005) 322 provided that “[j]udicial authority in East Timor shall be exclusively vested in courts that are established by law ...”144 External relations power: the Secretary-General’s report of 4 October 1999 anticipated the need to represent the nascent state externally and to conduct international negotiations. It made specific reference to UNTAET’s competence to “conclude such international agreements with States and international organizations as may be necessary for the carrying out of the functions of UNTAET in East Timor”.145 In fact, it was necessary to negotiate with Indonesia on border relations, access to East Timor’s Oecussi enclave in West Timor, as well as compensation for damages incurred during the violence of the pro-Indonesian militia after the referendum. Likewise, a Memorandum of Understanding with Australia was negotiated on the issue of delimiting interests in the exploitation of resources in the Timor Sea. This so-called “Timor Sea Arrangement” specified that East Timor will have a 90 per cent share in the oil and gas production in a Joint Petroleum Development Area (JPDA).146 Furthermore, UNTAET also negotiated and concluded the Trust Fund for the East Timor Grant Agreement. c. Restrictions on UNTAET’s Powers The exercise by UNTAET of all powers traditionally attributed to a state (legislative, executive and judicial powers) provokes the question of the legal framework within which these powers are exercised, in particular the limits to their exercise. While the absolutist state knew a sovereign legibus absolutus, modern theory and practice has introduced restrictions on the exercise of powers by the sovereign, both internally and internationally. The question of control of UNTAET’s powers is made all the more significant as it is obvious from its mandate that the powers exercised are in no way separated. Thus, the system lacked checks and balances between different branches of “government”, ensuring that organs would not overstep their respective competencies in the political process. 144 145 146 UNTAET/REG/2000/11 of 6 March 2000, sec. 1. Doc. S/1999/1024, see note 93, para. 35. See N. Bugalski, “Beneath the sea: Determining a maritime boundary between Australia and East Timor”, Alternative Law Journal 29 (2004), 290 et seq. Upon East Timor’s independence, the governments of East Timor and Australia concluded the Timor Sea Treaty that contained the same terms and provisions as the Memorandum of Understanding. Benzing, Case Study – East Timor 323 In looking for limits to UNTAET’s powers, one may first think of the direct applicability of international law as a result of the internationalisation of the territory.147 However, before considering general international law, it is important to first look at the instrument bringing about the internationalisation of the territory concerned. This instrument, be it an international agreement or, as in the case at hand, a Security Council resolution under Chapter VII of the Charter, specifies the applicability of international law in the territory and thus serves as a surrogate constitution.148 In determining limits of UNTAET’s power, one must first turn to the legal instrument establishing the interim administration, i.e. S/RES/1272. Other limitations may derive from norms and principles contained in the UN Charter and other instruments, as well as customary international law. Territorial administration standing in the tradition of the Trusteeship System, Chapters XI, XII and XIII might possibly be applicable. Furthermore, the right to self-determination plays a crucial role in the context of East Timor and may have implications for the control of UNTAET’s powers. Without asserting to give a comprehensive account of all arguments presented, the present section deals with each issue in turn. aa. UNTAET’s Mandate The first obvious limitation to UNTAET’s powers under the mandate provided by the Security Council is the time-frame: the initial period of international administration was to last until 31 January 2001.149 It was later extended until 31 January 2002, and finally to 20 May 2002. Second, given that UNTAET was established under Chapter VII of the UN Charter, and that under these provisions the Security Council has the authority to take measures “to maintain or restore international peace and security”, this may have as a consequence that the exercise of (legislative, executive, or judicial) power by UNTAET would have to show a link to the maintenance or restoration of peace.150 In other words, one could argue that legislative measures that do not stand in relation with this goal are acts ultra vires. If this were true, and it is not explicitly reflected in the language of S/RES/1272, a difficult question 147 148 149 150 See under V. 3. a. See Wolfrum, “Internationalization”, see note 132, 1395. S/RES/1272, see note 50, para. 17. de Hoogh, see note 71, 31. Max Planck UNYB 9 (2005) 324 would be the exact demarcation between measures sufficiently closely related to the maintenance and restoration of peace and those not. One may think of justifying those acts that arguably go beyond the immediate context of peace-restoration by the consent of the parties concerned, i.e. Portugal and Indonesia, in the administration of the territory by the United Nations.151 bb. Human Rights The issue of whether UNTAET was bound to comply with human rights standards, and if so, with which in particular, is not easily answered.152 Conceptually speaking, the difficulty complicating the discussion is that human rights law has traditionally been conceived in terms of state responsibility, or, in case of most serious human rights abuses, as individual responsibility, but not as one that could apply to an international organisation or its sub-units.153 However, if an international organisation actually exercises functions which would normally be performed by a state, and which directly affect individuals, the question of its human rights obligations seems obvious. In fact, the United Nations has emulated “state behaviour” in East Timor not only nominally, but also practically, hence (maybe understandably) making the same mistakes.154 As obvious as the need for human rights standards is, UNTAET’s mandate as spelt out in S/RES/1272 contained only “discrete” refer- 151 152 153 154 de Hoogh, see note 71, 32. A different, yet related issue is in how far states as members of an international organisation remain accountable for acts of that organisation where they attribute or delegate power to it; as a general rule, it may be said that they cannot be “absolved” from their responsibility by such an act of attribution of powers, see, for instance, ECHR, Waite and Kennedy v. Germany, Application No. 26083/94, Judgment of 18 February 1999, para. 67; C. Walter, “Grundrechtsschutz gegen Hoheitsakte internationaler Organisationen”, Archiv des öffentlichen Rechts 129 (2004), 40 et seq. (54 et seq.). See R. Wilde, “Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor”, ILSA Journal of International and Comparative Law 7 (2001), 455 et seq. (456). See F. Mégret/ F. Hoffmann, “The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities”, HRQ 25 (2003), 314 et seq. (338). Benzing, Case Study – East Timor 325 ences to human rights obligations of the administration.155 The Report of the Secretary-General of 4 October 1999, referred to in operative paragraph 3 of resolution 1272, specifies that UNTAET will have as its objective “to ensure the establishment and maintenance of the rule of law and to promote and protect human rights”.156 Equally, the Report envisaged that the Special Representative “will facilitate the creation of an independent East Timorese human rights institution, whose functions will include the investigation of alleged violations of human rights”.157 It is not entirely clear, though, whether this institution was intended to control UNTAET’s actions, let alone that the jurisdiction of such institution or its level of scrutiny were stipulated.158 Given that the references in the instruments mentioned are at best cursory, it is difficult to argue that they clearly establish UNTAET’s submission to human rights standards.159 155 156 157 158 159 Compare also S/RES/1244, see note 3, para. 11 (j), establishing UNMIK, provides that “the main responsibilities of the international civil presence will include … protecting and promoting human rights”. It is doubtful whether this already constitutes a strict obligation of UNMIK to act in accordance with human rights law, see T.H. Irmscher, “The Legal Framework for the Activities of the United Nations Interim Administration in Kosovo: The Charter, Human Rights, and the Law of Occupation”, GYIL 44 (2001), 353 et seq. (366); Bothe/ Marauhn, see note 102, 237; S. Hobe/ J. Griebel, “Privatisierungsmaßnahmen der UNMIK im Kosovo – Mögliche Rechtmäßigkeitsgrenzen im Resolutionsmandat und im allgemeinen Völkerrecht”, in: J. Bröhmer et al. (eds), Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress zum 70. Geburtstag, 2005, 141 et seq. (145). S/RES/1272 does not even go that far. It only specifies UNTAET’s mandate to include the development of an “independent East Timorese human rights institution” (para. 8), and stresses the importance to recruit UNTAET personnel with appropriate training in human rights (para. 15). Rightly critical as to this difference in the treatment of human rights issues between Kosovo and East Timor: A. Devereux, “Searching for clarity: a case study of UNTAET’s application of international human rights norms”, in: White/ Klaasen, see note 8, 293 et seq. (298 et seq.). Para. 29 (h); see also Stahn, see note 129, 162. Para. 42. See C. Bongiorno, “A Culture of Impunity: Applying International Human Rights Law to the United Nations in East Timor”, Columbia Human Rights Journal 33 (2002), 623 et seq. (659), who concludes that the institution would only control a future government. But see Stahn, see note 129, 162-3. 326 Max Planck UNYB 9 (2005) Regulation No. 1999/1, rightly described as a constitutional document,160 provided in section 2 that “all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards”. Moreover, one specific rule, the prohibition against discrimination, was explicitly named as applicable. Even though it does not unequivocally state whether legislative or executive acts by UNTAET had to be in accordance with human rights standards,161 this provision must be regarded as a binding “selfcommitment”,162 extending the obligation to respect human rights norms to the transitional administration itself, given that it undeniably exercised public authority by enacting regulations or directives, or performing any other duty.163 That members of the administration perceived to be bound by human rights standards by virtue of Regulation No. 1999/1 confirms this interpretation.164 However, to take Regulation No. 1999/1 as the only source of human rights obligations of UNTAET is somewhat unsatisfactory, given that it can be argued that later instruments having the same status could easily derogate from those obligations.165 In addition, the obligation to respect human rights may follow from the fact that the Security Council, acting under Chapter VII, is itself bound to respect them. If so, as a logical consequence UNTAET would be equally bound as it was established by a UN Security Council Resolution, according to the principle that no organ can delegate more authority or powers than it has itself (nemo plus iuris transferre potest quam ipse habet), or, put differently, that, by delegating authority, an organ automatically also passes on the limits on such authority. The same is true if one considers the vesting of legislative and judicial pow160 161 162 163 164 165 H. Strohmeyer, “Building a New Judiciary for East Timor: Challenges of a Fledgling Nation”, Criminal Law Forum 11 (2000), 259 et seq. (270). Stahn, see note 129, 158. Compare A. Reinisch, “Securing the Accountability of International Organizations”, Global Governance 7 (2001), 131 et seq. (136). Compare also: M. Virally, “Unilateral Acts of International Organizations”, in: M. Bedjaoui (ed.), International Law: Achievements and Prospects, 1991, 241 et seq. (256). S. Linton, “Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor”, Melbourne University Law Review 25 (2001), 122 et seq. (136). See Strohmeyer, see note 160. Strohmeyer served as Acting Principal Legal Adviser and later as Deputy Principal Legal Adviser to UNTAET. Devereux, see note 155, 301. Benzing, Case Study – East Timor 327 ers in UNTAET an attribution, rather than a delegation, of powers by the Security Council,166 as the Council in both cases acts under Chapter VII of the Charter and consequently is subject to the same limitations. While the United Nations itself is not party to human rights instruments and thus cannot be directly bound by their provisions, international organisations are subject to the rules of general international law, i.e. customary international law and general principles of law,167 in particular rules of customary law including those relating to the protection of fundamental human rights.168 However, in relation to Chapter VII measures of the Security Council, this general statement needs some further specification and qualification. Most legal scholars would nowadays agree that the Security Council, even if it acts under Chapter VII of the Charter, does not operate above the law.169 As an organ of an international organisation, its powers only reach as far as they are conferred on it by or implied in the Charter.170 As the powers conferred on the Security Council are very broad, the difficult question is how to determine the exact limits of its authority. According to Article 24 (2) of the Charter, the Council is bound to respect the purposes and principles of the UN. However, these are merely guidelines, rather than concrete limits for Security Council action.171 In particular, from its wording and negotiating history, Article 1 (1) UN Charter confines the obligation to strictly observe general international law to the peaceful settlement of disputes, rather than extending it to collective measures for the prevention and 166 167 168 169 170 171 de Hoogh, see note 71, 32. See ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 1949, 174 et seq. (179); ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 73 et seq. (89-90); P.M. Dupuy, Droit International Public, 1992, 127; A. Reinisch, “Governance Without Accountability?”, GYIL 44 (2001), 270 et seq. (282). P. Sands/ P. Klein, Bowett’s Law of International Institutions, 5th edition, 458; Reinisch, see note 162, 136; Kondoch, see note 8, 36; D. Shelton, Remedies in international human rights law, 2nd ed., 2005, 156. See only: ICTY, Prosecutor v. Tadić , Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para. 28. J. Frowein/ N. Krisch, “Introduction to Chapter VII”, in: Simma, see note 5, MN 25. Frowein/ Krisch, see note 170, MN 26 and 28. 328 Max Planck UNYB 9 (2005) removal of threats to peace,172 i.e. the substance of Chapter VII measures. Thus, the Security Council has some margin of appreciation or discretion with regard to the observance of human rights when acting to restore peace and security. Even though the Security Council has some “room for manoeuvre” most commentators point out that it may not “undermine the essence of ... basic human rights”,173 is bound to respect the “core content of fundamental human rights norms”, or may not act in “complete disregard” of those rules.174 That said, a definite limitation are those human rights that constitute ius cogens. This interpretation leaves the Security Council both the right and the responsibility to strike a balance between humanitarian and human rights concerns and the objective of maintaining international peace and security. In this balancing exercise, it is limited by the above principles. This theoretical framework seems reasonable. However, it does not give an answer to the question of what happens when the Security Council does not engage in balancing exercises, at least not explicitly, and essentially leaves the question unaddressed. It seems that UNTAET is such a case, considering that the fundamental documents do not take position on UNTAET’s human rights obligations. How should this lacuna be filled? Do we suppose that the Security Council wanted to give UNTAET only the minimum core principles of human rights on the way? Or do we, following an interpretation in accordance with the principles of in dubio pro libertate and good faith,175 say that UNTAET, even though established under Chapter VII of the Charter, had to comply fully with all human rights norms that the United Na172 173 174 175 R. Wolfrum, “Article 1”, in: Simma, see note 5, MN 17-19. Different: Reinisch, see note 162, 136. de Wet, see note 107, 193. Frowein/ Krisch, see note 170, MN 28. As to the interpretation of Security Council resolutions see M.C. Wood, “The Interpretation of Security Council Resolutions”, Max Planck UNYB 2 (1998), 73 et seq. (in particular 88 et seq.); Compare also Frowein/ Krisch, see note 170, MN 34-35, who contend that Security Council resolutions should be interpreted narrowly, in the sense that limitations of the sovereignty of states against which enforcement action is taken by the Council should not lightly be assumed. The same reasoning seems to apply to limitations of, or deviations from, human rights law, as well as other areas of international law, e.g. international environmental law. In other words, in the absence of clear evidence to the contrary, it should at all times be presumed that the Security Council, in exercising its powers under Chapter VII, wanted to abide by international law rather than abrogate it. Benzing, Case Study – East Timor 329 tions itself as an international organisation is subject to? It seems that the latter approach is clearly preferable, for various reasons: first, it would be counterintuitive and indeed bizarre to suppose that the Security Council wanted to implicitly derogate from the corpus of human rights norms, given that such derogation normally has to be effected by express declaration.176 Second, if the exercise of authority is to be based on the rule of law, accountability is the direct counterpart of exercising power. Third, from a more practical perspective, the mandate to establish an independent human rights institution177 – even though it cannot be a basis in and of itself to argue that UNTAET was given human rights standards to abide by qua resolution 1272 – would seem to make it difficult to argue that the institution tasked with establishing this mechanism was intended to be bound only by minimum core standards of human rights. Another possible reasoning is to borrow from the theory of the automatic succession in human rights treaties.178 An argument against this view could be that UNTAET never acquired formal title to the territory of East Timor in the same sense as a state would to a territory, in which case state succession rules apply. In contrast, the territory of East Timor did not even constitute a state at the time of UNTAET’s operation, but was internationalised. It hence seems difficult to say that the United Nations acted as a “state agent”, as the Office of the High Representative or the United Nations did and still do in BosniaHerzegovina and in Kosovo, respectively.179 But, one may say that, as UNTAET de facto exercised the functions of a territorial sovereign, it was obliged to respect and enforce human rights obligations in conformity with what could be called “functional succession”.180 176 177 178 179 180 If effected by states: see article 4 (3) ICCPR. S/RES/1272, see note 50, para. 8. Stahn, see note 129, 163; J. Cerone, “Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo”, EJIL 12 (2001), 469 et seq. (474); Irmscher, see note 155, 371. Compare Wilde, see note 124, 256. Irmscher, see note 155, 372; Human Rights Committee, General Comment No. 26, Doc. A/53/40, Annex VII, para. 4: “The rights enshrined in the Covenant belong to the people living in the territory of the State party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State Max Planck UNYB 9 (2005) 330 It is thus beyond doubt that UNTAET was bound to respect universally applicable international human rights law.181 Effective human rights protection, however, essentially depends on the question of whether they could be effectively enforced, a question to be analysed at a later stage.182 cc. Analogy to the Trusteeship System In Chapters XII and XIII, the UN Charter established an International Trusteeship System and a Trusteeship Council with the mandate to monitor so-called “trust territories”. These were those territories as were placed under the trusteeship system by way of a trusteeship agreement (Article 77 (1)). Interestingly, the authority administrating a trust territory (the “administering authority”) could be one or more states, or the United Nations itself.183 While the international administration of East Timor surely shows close parallels to the concept of trusteeship, it is questionable whether the rules applicable in the trusteeship system applied to UNTAET.184 The UN Trusteeship System effectively ended with the independence of Palau in 1994, even though there have been calls to revive and reinvigorate the Trusteeship System for future “state-building” exercises under the aegis of the United Nations.185 At the outset, it has to be noted that UNTAET’s authority was not established by way of a trusteeship agreement in accordance with Article 77. Neither could it have been, given that East Timor does not fall into any of the categories enumerated in Article 77.186 181 182 183 184 185 186 succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.” The term “universally applicable” is meant to refer to those standards valid on the international, rather than regional, level, see Hobe/ Griebel, see note 155, 146. See under V. 4. Article 81 UN Charter. See Kondoch, see note 113, 258. T. Parker, “The Ultimate Intervention: Revitalising the UN Trusteeship Council for the 21st Century”, Report 3/2003, Centre for European and Asian Studies, Norwegian School of Management, 3. de Wet, see note 107, 318. See, however, Report of the High-level Panel on Threats, Challenges and Change, “A more secure world: our shared responsibility”, Doc. A/59/656, para. 299: “Chapter 13 (The Trusteeship Benzing, Case Study – East Timor 331 Even though Chapter XII was thus not directly applicable, one may think of an analogous application of the norms and principles contained therein.187 It has been observed that the standards set out in Chapter XII are intended to find a balance between the interests of the population and the objective of effectively maintaining international peace, in particular Article 76.188 Given that the balancing exercise in Chapter VII - authorised territorial administration is the same as in the case of a territory placed under the trusteeship system, it seems reasonable to think of an application by analogy. dd. Humanitarian Law: The Law of Occupation The applicability of the international law of occupation depends on factual rather than legal requirements: its main prerequisite is the de facto submission of a territory and its population under the effective authority of external military forces.189 It is irrelevant whether the occupation results from an armed conflict.190 However, the law of occupation does not extend to situations where the sovereign of that territory has agreed to the presence of foreign troops.191 While article 6 Geneva Convention IV contains a limitation of the applicability of the law of occupation to one year, article 3 (b) AP I extends their pertinence to the actual duration of the occupation. As with human rights treaties, the United Nations, and consequently UNTAET, are, or rather were, not bound by the treaties estab- 187 188 189 190 191 Council) should be deleted. The Trusteeship Council of the United Nations performed an important task in helping the world emerge from the era of colonialism and steering many cases of successful decolonization. The United Nations should turn its back on any attempt to return to the mentalities and forms of colonialism.” K. Ipsen, Völkerrecht, 5th ed., 2004, 80 (V. Epping). Frowein/ Krisch, see note 5, MN 21. UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, 275; Art. 42 Hague Regulations, Art. 27 Geneva Convention IV. Common Article 2 (2) of the Geneva Conventions. See Benvenisti, see note 4, 4; Kreß, see note 120, 427; A. Roberts, “What is a Military Occupation”, BYIL 55 (1984), 249 et seq. (273 et seq.). See S. Vité, “L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationales”, Int’l Rev. of the Red Cross 86 (2004), 9 et seq. (14); UK Ministry of Defence, see note 189, 275. 332 Max Planck UNYB 9 (2005) lishing the law of occupation.192 Yet, many of their provisions reflect only customary international law,193 including those determining its applicability. Whether the law of occupation constitutes the appropriate means of solving the problems arising from administration of territory by the United Nations in general, and UNTAET in particular, is doubtful. First, both Portugal and Indonesia gave their consent to the establishment of UNTAET, both in the 5 May agreements and immediately before the establishment of the mission, the absence of (free) consent being one criterion for the applicability of the law of occupation.194 Second, UNTAET was created by way of a binding Chapter VII Security Council resolution, which arguably is not comparable to the classic situation of occupation against the will of the sovereign.195 Thus, better arguments strive for not applying the law of occupation to UNTAET, at least not directly. One may consider applying the law of occupation by way of analogy.196 This would require that the object and purpose of the rules con192 193 194 195 196 Compare Bothe, see note 72, MN 125. The relevant norms are contained in Section III of the Hague Regulations (only applicable to belligerent occupation); Part III, Section III of Geneva Convention IV as complemented by Additional Protocol I (Ipsen, see note 187, 1258-1260 (K. Ipsen)). As to international humanitarian law obligations other than the law of occupation of the UN see the Secretary-General’s Bulletin on the Observance by United Nations forces of international humanitarian law, Doc. ST/SGB/1999/13 of 6 August 1999 and D. Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage”, AJIL 95 (2000), 406 et seq. H.P. Gasser, “Protection of the Civilian Population”, in: D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995. 209 et seq. (241); UK Ministry of Defence, see note 189, 14. See M. Sassòli, “Droit international pénal et droit pénal interne: le cas des territoires se trouvant sous administration internationale”, in: M. Henzelin/ R. Roth (eds), Le droit pénal à l’épreuve de l’internationalisation, 2002, 119 et seq. (143). See C. Greenwood, “International Humanitarian Law and United Nations Military Operations”, Yearbook of International Humanitarian Law 1 (1998), 3 et seq. (28), who argues that the law of belligerent occupation would apply to the UN until the Security Council used its Chapter VII powers to impose a different legal regime as part of the measures necessary for the maintenance of peace and security. This has been argued by several scholars. One must be aware, however, that this would amount to an application of customary international law by analogy, an approach at least not undisputed under international law: Ipsen, Benzing, Case Study – East Timor 333 cerned support such conclusion by analogy. In a nutshell, the underlying rationale of the law of occupation is as follows: where the legitimate sovereign is prevented from exercising power, but at the same time its sovereignty persists and is only suspended, a foreign power that acquires temporary authority over the territory as a whole or in part is obliged to abide by certain fundamental rules regarding the status of the territory and the protection of civilians. These rules can be summarised by two main principles: respect for the rights of the population and maintenance of the status quo of the territory concerned.197 It is obvious that on the one hand, the temporary nature of the administration, the need for the protection of civilians and the suspension of sovereignty is comparable to the situation of international administration of territories by the United Nations. On the other hand, the obligation to preserve the status quo of the territory, in particular to abide by the laws in force in the territory and to refrain from changing them, flies in the face of the mandate of UNTAET, given that, first, it had plenary powers to amend laws and promulgate new legislation, and, second, that it was to prepare the territory of East Timor for independence. Especially the rules contained in articles 47 and 64 Geneva Convention IV, as well as article 43 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land are at obvious odds with UNTAET’s mandate. In addition, whereas the classical situation of occupation is characterised by a conflict of interests (i.e. between the foreign military power(s) and the population of the occupied territory), the international administration of territories by the United Nations is a relationship of co-operation.198 It is thus doubtful whether the object and purpose of the rules constituting the body of the law of occupation supports their applicability to United Nations administrations of territories.199 197 198 199 see note 187, 246 (W. Heintschel von Heinegg). As to the conceptual problems of “interpreting” customary international law in practice see: ICTY, Prosecutor v. Hadžihasanović et al., Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Appeals Chamber, 16 July 2003. Vité, see note 191, 14. D. Shagra, “The UN as an actor bound by international humanitarian law”, in: L. Condorelli/ A.M. La Rosa/ S. Scherrer (eds), Les Nations Unies et le droit international humanitaire, 1996, 317 et seq. (328 and fn. 23), referring to West-Irian. See in this respect D. Gruss, in this Volume. For a different view see in particular: Benvenisti, see note 4, Preface to the Paperback Edition, xvi; Irmscher, see note 155, 374 et seq. Max Planck UNYB 9 (2005) 334 ee. The Right to Self-Determination The right to self-determination appears to be as ubiquitous in international legal discourse as its exact contents and implications remain nebulous. It is recognised in article 1 of both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), and features prominently among the purposes of the United Nations (Article 1 (2) of the UN Charter). The principle is customary international law.200 As it has the status of ius cogens,201 and the character of an erga omnes obligation,202 it forms a direct limitation of powers of the Security Council, also when acting under Chapter VII,203 and, according to the above, hence was binding on UNTAET. Modern treatises by and large differentiate between the right to internal and external self-determination. Whereas the former essentially gives populations the right to regulate their political, economic, social and cultural affairs within an existing state-structure, for instance relating to cultural affairs, in a limited form of self-government, the latter mainly plays a role in the context of decolonisation, which is a special concretisation of the right of self determination.204 The right to external self-determination is universally accepted in the context of decolonisation. 200 201 202 203 204 ICJ, see note 29, Diss. Op. Judge Weeramantry, 139 et seq. (194). See Tomuschat, see note 75, 341; D. Raič, Statehood and the Law of SelfDetermination, 2002, 145. ICJ, see note 29, para. 29. Compare Frowein/ Krisch, see note 170, MN 29; ICJ, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 13 September 1993, ICJ Reports 1993, 325 et seq., Diss. Op. Judge Lauterpacht, 407 et seq., para. 100; M.J. Herdegen, “The ‘Constitutionalization’ of the UN Security System”, Vand. .J Transnat’l L. 27 (1994), 156; de Wet, see note 107, 187-191; T.D. Gill, “Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter”, NYIL 26 (1995), 33 et seq. (74). See K. Doehring, “Self-Determination” in: Simma et al. (eds), see note 5, MN 17. It may also become relevant where a people’s right to exercise internal self-determination is blocked permanently, see Supreme Court of Canada, Reference Re Secession of Québec, 20 August 1998, reprinted in ILM 37 (1998), 126 et seq., at para. 134. Benzing, Case Study – East Timor 335 Given that East Timor is a case of what has been named here “delayed decolonisation”, the applicability of the right of selfdetermination for the people of East Timor should be uncontroversial.205 East Timor had been entitled to the right of external selfdetermination ever since it was listed as a non-self governing territory, a situation not changed by Indonesia’s illegal occupation in 1976.206 East Timor’s independence is thus appropriately cited as the most recent example for the exercise of the right.207 It is thus surprising that S/RES/1272 does not explicitly mention the term “self-determination”; it was, however, mentioned in the preamble of the agreement between Indonesia and Portugal providing for the popular consultation.208 All in all, it is inevitable to conclude that not only did the right of self-determination apply to East Timor, but the transitional administration was the essential instrument for implementing this right.209 While its applicability to the situation of East Timor is thus beyond doubt, its consequences for the administration of the territory are less clear. Some cautious proposals may be made: first and foremost, UNTAET was bound to prepare East Timor for independence from Indonesia. It could thus not have decided to arrange for an autonomous status of the territory within Indonesia. Second, it follows from the duty to respect the right to self-determination by the Security Council that Chapter VII-mandated missions such as UNTAET do not allow the United Nations to impose a particular form of government upon the population of a territory or a state against the will of the people concerned.210 Thus, not only was UNTAET under an obligation to consult with and progressively involve the East Timorese people on the future structure of an independent East Timor, it was also required to 205 206 207 208 209 210 See J.I. Charney, “Self-Determination: Chechnya, Kosovo, and East Timor”, Vand. J. Transnat’l L. 34 (2001), 455 et seq. (465): “… the doctrine of self-determination might apply directly.”; H.J. Richardson, “A Critical Thought on Self-Determination for East Timor and Kosovo”, Temp. Int’l & Comp. L. J. 14 (2000), 101 et seq. (103): “… East Timorese independence does not represent, under international law, a secession of territory from the state of Indonesia, but the release of a colony by a metropolitan power”. de Wet, see note 107, 332-333. R. McCorquodale, “The Individual and the International Legal System” in: Evans, see note 9, 299 et seq. (316). Preambular para. 6. Bothe/ Marauhn, see note 102, 238. Kondoch, see note 113, 260. Max Planck UNYB 9 (2005) 336 implement these views.211 These ramifications of the right to selfdetermination seemed to be difficult to reconcile, both in theory and practice, with the role and powers of the Transitional Administrator.212 Third, the right to self-determination implied a duty (on both states and the United Nations) to assist the entity entitled to self-determination, i.e. the population of East Timor, to achieve this self-determination. 213 It thus imposed on UNTAET the duty to protect and promote the territorial integrity, resources and future sustainable development of the state-in-waiting. ff. The Right to Democratic Governance The “liberal revolution” following the demise of communism at the end of the 1980s and beginning of the 1990s also influenced international legal doctrine. Against the background of the writings of political philosophers such as Fukuyama,214 international legal scholars revised their discipline’s traditional impartiality on the subject of political systems.215 Prominent scholars argued that a “right to democratic governance” was emerging under international law.216 Its content may roughly be characterised as “the right of people to be consulted and to participate in the process by which political values are reconciled and choices are made”.217 How does this right relate to the more traditional right to selfdetermination? One may say that the right to self-determination is inherently “democratic”, as it envisages a right of a people to freely de- 211 212 213 214 215 216 217 Compare de Wet, see note 107, 329. See infra, at V. 5. R. McLaughlin, “East Timor, Transitional Administration and the Status of the Territorial Sea”, Melbourne Journal of International Law 4 (2003), 323 et seq. (334). See F. Fukuyama, “The End of History?”, National Interest, 1989, 3 et seq.; id., The End of History and the Last Man, 1992, in particular Chapter 4. Compare the discussion in S. Marks, The Riddle of all Constitutions – International Law, Democracy and the Critique of Ideology, 2000, 37 et seq. See T. Franck, “The Emerging Right to Democratic Governance”, AJIL 86 (1992), 46 et seq.; id., “Legitimacy and the democratic entitlement”, in: G.H. Fox/ B.R. Roth, Democratic Governance and International Law, 2000, 25 et seq. Id., 46. Benzing, Case Study – East Timor 337 termine its future status.218 Another problem is to agree on a “minimum” definition of “democracy”.219 In scholarly discussion, however, the principle of self-determination and the right to democratic governance seem inextricably connected220 and for present purposes may be treated as having the same implications. It is clear that the application of the right to democratic governance to the case of UNTAET raises even more pointedly the question of UNTAET’s lack of democratic legitimacy and the participation of the local population.221 4. Accountability: The Control of UNTAET’s Powers It seems almost trite to say that, to be effective and not only theoretical, individual rights have to be enforced and enforceable. In addition, it is clear that where an entity wields almost unfettered power to govern a territory and its people, the potential for abuse of that power is imminent.222 Especially in the absence of an institutionalised system of checks and balances, and lacking a clear separation of powers, control mechanisms to prevent abuse by international organisations administering a territory are mandatory.223 The problem was formulated by the ICJ in the Effects of Awards of Compensation Made by the UN Administrative Tribunal, dating back to 1954. The Court opined that it would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation 218 219 220 221 222 223 See J. Kokott, “Souveräne Gleichheit und Demokratie im Völkerrecht”, ZaöRV 64 (2004), 517 et seq. (527): “One pillar of an imperative of democracy in international law is the recognition of a right to self-determination not limited to the post-colonial context.” (Translation by the author). On the difficulty of defining “democracy” as an international legal term see Kokott, see note 218, 527. Compare J. Crawford, “Democracy and the body of international law”, in: Fox/ Roth, see note 216, 91 et seq. (94); Wolfrum see note 110, 73. Compare infra at V. See Chopra, see note 55, 981. As to a right to a remedy against international organisations see K. Wellens, Remedies against international organisations, 2002, 17; id., “Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: The Role of the Judiciary in Closing the Gap, Mich. J. Int’l L. 25 (2003-2004), 1159 et seq. (1162); Shelton, see note 168, 156. On control mechanisms under the mandate system of the League of Nations see the contribution of N. Matz, in this Volume, at III. 3. Max Planck UNYB 9 (2005) 338 of the UN to promote this aim” not to afford “judicial or arbitral remedy”.224 If one substitutes UN with UNTAET, the problem becomes all the more clear. a. Internal Control Mechanisms In relation to the observance of human rights norms by UNTAET, the jurisdiction of the East Timorese courts over UNTAET’s legislative and administrative acts was not clearly established.225 A special procedure for the review of the conformity of UNTAET regulations or directives, or other administrative actions, with human rights standards was not introduced.226 Unlike UNMIK,227 UNTAET did not promulgate rules which defined the privileges and immunities of its staff. In the absence of such specification, the general rules contained in the Convention on the Privileges and Immunities of the United Nations were applied.228 Thus, UNTAET officials enjoyed immunity from proceedings in local courts, which was waived only exceptionally if individual staff members were allegedly involved in serious human rights violations or other serious crimes.229 Plans for the institution of an ombudsperson started being made by the transitional administration in winter 2000. However, a draft regulation proposed by UNTAET’s Human Rights Unit which would have authorised the ombudsperson to rescind administrative decisions that violated international human rights law did not meet with the approval of the Transitional Administrator.230 Nevertheless, an ombudsperson was eventually appointed around May 2001. Lacking a specific mandate 224 225 226 227 228 229 230 ICJ, Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954, 47 et seq. (57), in the context of disputes between the UN and its staff. UNTAET/REG/2000/11, sec. 5.1 reads: “In exercising their jurisdiction, the courts in East Timor shall apply the law of East Timor as promulgated by sec. 3 of UNTAET Regulation No. 1999/1.” See Devereux, see note 155, 303. See Stahn, see note 129, 158-159. UNMIK/REG/2000/47 of 18 August 2000. 13 February 1946, UNTS Vol. 1 No. 4; F. Rawski, “To Waive or not to Waive: Immunity and Accountability in U.N. Peacekeeping Operations”, Conn. J. Int’l L. 18 (2002), 103 et seq. (118). See Morrow/ White, see note 16, 23; Rawski, see note 228, 118. Rawski, see note 228, 116, at fn. 67. Benzing, Case Study – East Timor 339 by way of a regulation, or a formally established independent office, it remained largely ineffective.231 It engaged in some formal inquiries but was more limited in scope than the ombudsperson in Kosovo, lacking a mandate to investigate human rights and the institutional support of an organisation like the OSCE. Instead, it operated under restrictive terms of reference.232 Non-governmental organisations, such as Amnesty International, criticised the ineffectiveness of the institution, in particular the lack of a legislative framework.233 To a limited extent, remedial action was possible in the form of filing complaints against the transitional administration with UNTAET’s Human Rights Unit,234 even though the procedure was never formalised and its effectiveness in terms of individual legal protection seems to have been minimal. This unit, whose exact position, functions and reporting lines remained largely unclear throughout UNTAET’s operation,235 was inter alia assigned the task of advising the Cabinet on the drafting of legislation with a view to ensuring that the legislation adopted complied with international human rights standards.236 With the establishment of the First Transitional Government,237 it remained with the Office of the Special Representative, rather than being incorporated into one of the newly formed ministries. In April 2001, a technical cooperation agreement was concluded between the High Commissioner for Human Rights (UNHCR) and the Special Representative. In terms of compliance with human rights standards by UNTAET, the agreement envisaged that the East Timorese and international staff of UNTAET’s Human Rights Unit would receive training in human 231 232 233 234 235 236 237 Chesterman, see note 11, 149-150. Rawski, see note 228, 116, fn. 67. Compare Devereux, see note 155, 315, who states the terms of reference as being to monitor the fairness and legality of UNTAET’s implementation of its public administration and governance mandate and to take up complaints regarding UNTAET and its activities. See Amnesty International, East Timor, Justice past, present and future, AI Index: ASA 57/001/2001, 27 July 2001, 29 et seq. Chesterman, see note 11, 150. Conflict Security & Development Group, King’s College London, see note 22, para. 325. Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, Doc. E/CN.4/2001/37 of 6 February 2001, para. 25. A detailed description of the Human Rights Unit’s mandate and operations is given by Devereux, see note 155, 315 et seq. See infra at V. 5. c. Max Planck UNYB 9 (2005) 340 rights, that the UNHCHR would provide legal advice and assistance on draft legislation to ensure conformity with human rights standards, and would generally promote compliance with the principles of international human rights instruments.238 All things considered, one may say that the focus of the Human Rights Unit was that of capacity building and training, rather than providing a remedial process for the acts of UNTAET itself, a fact caused not least by its unclear strategy and function which left open the question whether it was to be part of the government and assist in capacity-building or whether it was to externally monitor UNTAET.239 Finally, a possible control mechanism was the Timorese Office of the Inspector General. Formally established in November 2000, it exercised general oversight over the trust fund established by the World Bank.240 It was created following a demand by CNRT that the use of funds from the World Bank-administered Trust Fund for East Timor (TFET) be verified by an independent body.241 However, the Inspector General’s mandate was only temporary and informal.242 b. External Control Mechanisms One international mechanism that might have contributed to the control of UNTAET’s use of its powers may be the obligation to report to the Security Council. It was obliged to report once every six months,243 though UNTAET on the whole reported more frequently. One may justifiably have doubts about the effectiveness of a reporting system as a control mechanism in general, and in the context of territorial administration in particular. In the case of UNTAET at least, this mechanism seems to have been rather ineffective, not least because reports seem to have been mostly taken at face value,244 and not surprisingly so, given 238 239 240 241 242 243 244 The situation in East Timor during its transition to independence, Human rights questions: Report of the United Nations High Commissioner for Human Rights, Doc. A/56/337 of 6 September 2001, para 6. Conflict Security & Development Group, King’s College London, see note 22, para. 327. Chesterman, see note 11, 8. Chesterman, see note 11, 150. See the reports delivered by the Inspector General at <www.gov.easttimor.org/old/oig> (last visited on 13 December 2004). S/RES/1272, see note 50, para. 18. Chesterman, see note 11, 151. Benzing, Case Study – East Timor 341 that the Security Council can hardly be expected to keep a critical (and independent) eye on UNTAET as it was involved in its creation.245 In addition, the reports delivered were not too critical as concerns the human rights performance.246 It is interesting to compare this situation to reports prepared under the trusteeship system, which have been under much closer scrutiny by the Trusteeship Council. It has been rightly pointed out that the most obvious and convenient forum to address human rights breaches would seem to be international human rights organs.247 Indeed the UNHCHR issued several reports on the situation of human rights in East Timor during the international administration of the territory.248 However, those reports said little on the protection of individual human rights against acts of the transitional administration and concentrated rather on capacity building issues. The scrutiny by non-governmental organisations was critical, but necessarily remained on a rather general level. On the whole, there was no comprehensive international monitoring mechanism compensating for the lack of “internal” procedures to ensure respect for human rights.249 c. Evaluation Efforts by the transitional administration to ensure compliance with human rights and to guarantee the right to a remedy for the individual seem half-hearted and lacked consistency, especially if compared with the ombudsperson system in Kosovo. It can be noted positively that the Transitional Administrator guaranteed regular review of pre-trial detention, as well as a habeas corpus procedure for challenging unlawful ar245 246 247 248 249 Wilde, see note 153, 457; O. Korhonen, “International Governance in PostConflict Situations”, LJIL 14 (2001), 495 et seq. (501). Mégret/ Hoffmann, see note 154, 337. Reinisch, see note 162, 139. Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, see note 236; The situation in East Timor during its transition to independence, Human rights questions: Report of the United Nations High Commissioner for Human Rights, see note 238; Report of the United Nations High Commissioner for Human Rights on the situation of human rights in East Timor, Doc. E/CN.4/2002/39 of 1 March 2002. See de Wet, see note 107, 325. 342 Max Planck UNYB 9 (2005) rest or detention.250 Additionally, some regulations provided for judicial review of executive decisions taken by UNTAET organs on the basis of these regulations in local courts.251 In such proceedings, the local court would apply the same substantive rules as would be applicable in the procedures for (internal) administrative matters.252 However, on the whole, protection against acts of the transitional administration was hardly adequate to ensure compliance with international human rights standards. This inadequacy becomes even more painful as there is no justification for immunity of the United Nations when the organisation itself acts as government. In addition, the reasons why the scope of accountability was limited (e.g. the existence of a situation of “public emergency”) was never made explicit.253 The lack of remedial possibilities and the far-reaching immunity of UNTAET personnel make it difficult to assess in how far the transitional administration actually complied with human rights standards for lack of documentation, e.g. in the form of court records.254 It is thus apparent that, were an undertaking like UNTAET repeated, mechanisms for judicial review of the actions of a territorial administration would have to be improved, both on the internal level, i.e. the means available to the population concerned must be strengthened, as well as externally, meaning the oversight exercised by supervisory international bodies would have to be more consistent and critical.255 A reactivation of the Trusteeship Council, however, seems as im250 251 252 253 254 255 UNTAET/REG/2000/30 of 25 September 2000 (Transitional Rules of Criminal Procedure), section 20.9: “The Investigating Judge shall review the detention of a suspect every thirty (30) days and issue orders for the further detention, substitute restrictive measures or for the release of the suspect”, and section 47 (Habeas Corpus, Procedure), in particular 47.3: “The Dili District Court has jurisdiction to decide any petition filed pursuant to the present Section. Any person acting on behalf of the arrested person or detainee and, if necessary, assisted by a legal representative, may file a petition for habeas corpus before any court in East Timor.” For instance: UNTAET/REG/2000/17 of 8 June 2000; UNTAET/ REG/2000/19 of 30 June 2000. See de Wet, see note 107, 325, at fn. 82. R. Caplan, “Who Guards the Guradians? International Accountability in Bosnia”, International Peacekeeping 12 (2005), 463 et seq. (465); id., International Governance of War-Torn Territories, Rule and Reconstruction, 2005, 198. See de Wet, see note 107, 323. Frowein/ Krisch, see note 5, MN 22. Benzing, Case Study – East Timor 343 probable as undesirable, given its inextricable connection with the colonial past.256 5. A Modern Form of Colonialism? The Question of Local Participation The mandate of UNTAET to prepare East Timor for independence and democratic governance on the one hand, and, on the other, the means and procedures by which this goal was to be accomplished, i.e. first and foremost the concentration of all powers in the hands of the Transitional Administrator, stood in palpable disparity. 257 It is fair to say that the legal set-up of UNTAET indeed resembled the system of an absolutist monarchy, with the Transitional Administrator uniting all powers of government in his hands. Many practitioners working for the administration, as well as academic commentators, have hence raised the question of how the aim of preparing a territory for a democratic selfgovernance and instilling awareness for the need of a democratic society and a government based on the rule of law can be achieved if the agent of the international community governs with “benevolent autocracy”,258 or avails itself of “neo-colonialist” instruments.259 The dangers of international administration organised in this fashion are clear: “Curtailment of autonomous decision-making, paternalism, degradation of an entire population to mere objects of intransparent decisions which will never be entirely free from self-interest, [and] ultimately the obstruction of learning processes”.260 One might add that 256 257 258 259 260 Chesterman, see note 11, 152; Bothe/ Marauhn, see note 102, 242. See, however, B. Deiwert, “A New Trusteeship for World Peace and Security: Can an Old League of Nations Idea be Applied to a Twenty-First Century Iraq?”, Indiana International and Comparative Law Review 14 (2004), 771 et seq. See S. Ingram, “Mission Implementation: Developing Institutional Capacities” in: N. Azimi (ed.), The United Nations Transitional Administration in East Timor (UNTAET): Debriefing and Lessons – Report of the 2002 Tokyo Conference, 2003, 85 et seq. (86); Chesterman, see note 11, 127: “central policy dilemma”. Chesterman, see note 11, 127; Traub, see note 1, 75. For an especially sceptical account of UNTAET’s approach to East Timorese participation, see Chopra, see note 55, 979 et seq. See Kreilkamp, see note 89, 620. Oeter, see note 130, 427 (translation by the author). 344 Max Planck UNYB 9 (2005) the lack of accountability of international actors, and the absence of mechanisms through which this accountability may have been enforced, exacerbate accusations of despotism.261 On the other hand, one has to be aware of the problems involved in encouraging participation: the political system present in the territory either has to be accepted and integrated in the state-building exercise as it is; or the political system needs to be intervened in and adapted to the vision of a newly constructed political system.262 If the first approach is adopted, critics will disapprove of unfairly favouring one particular organisation not necessarily representative of the population and (unavoidably) without democratic legitimacy. When opting for the second approach, allegations of neo-colonialism and interventionism are looming. This underlying schism is also apparent in the case of East Timor: the Indonesian withdrawal had left East Timor with little or no professional middle class, given that during the time of Indonesian occupation, most middle-level and senior public servants were Indonesian and left the territory after Indonesia’s withdrawal.263 Participation exercises concentrated on the CNRT as the only identifiable coherent political entity in East Timor.264 At the same time, as an umbrella organisation of all resistance groups, it was deeply divided. The guidelines given to UNTAET by the Security Council were of little help in resolving the problem. By vesting all authority with the transitional administration, S/RES/1272 did not, save in general terms, create an environment conducive to the involvement of the population in the decision making process. It contained only a vague and ambiguous reference to the involvement of the East Timorese people in the transitional administration: “8. [The Security Council] [s]tresses the need for UNTAET to consult and cooperate closely with the East Timorese people in order to carry out its mandate effectively with a view to the development of local democratic institutions, including an independent East Timorese human rights institution, and the transfer to these institutions of its administrative and public service functions.” 261 262 263 264 Compare Wilde, see note 153, 458. Compare Chopra, see note 55, 997. Conflict Security & Development Group, King’s College London, see note 22, para. 160. Traub, see note 1, 87; Chesterman, see note 11, 135. Benzing, Case Study – East Timor 345 Even though this recognition of the need for consultation and cooperation was more far-reaching than that included in the Security Council resolutions establishing the UN missions in Eastern Slavonia and Kosovo, the very general reference to consultation requirements did not change the overall position that UNTAET held all power in its hands. Likewise, the failure to specify the meaning of “consult and cooperate closely” in the resolution gave UNTAET a wide discretion in the interpretation of this particular aspect of its mandate.265 The reserved stance on involvement of the local population is already apparent in the Secretary-General’s Report of 4 October 1999. Participation of the population in the work of UNTAET was not seen as a necessity implied in the principle of self-determination and hence binding on UNTAET as a matter of international law, but rather as a question of efficacy in terms of capacity-building. Accordingly, the report clearly perceived the process as a noncommittal consultation, rather than co-decision-making that would be gradually intensified until power was completely devolved: “The effectiveness of UNTAET will rest on its ability to perform its duties in close consultation and cooperation with the people of East Timor, as it will have to exercise its authority on their behalf. In this context, the establishment of a permanent dialogue with representatives of the East Timorese people will be essential. Pending the holding of elections, the Special Representative will establish advisory bodies at all levels to ensure the participation of East Timorese in the governance and administration of the territory.”266 Only in terms of participation within UNTAET’s structures, under the supervision and authority of the Transitional Administrator, the Report mentioned that: “[i]n all elements of the functioning of the governance and public administration elements of UNTAET, the United Nations will work on the basis of the principles of participation and capacity-building. This will involve assigning East Timorese to positions within the transitional administrative structures to be established ...”267 It is thus not surprising that participation of local actors within the administration started off somewhat unhurriedly: as has been pointed 265 266 267 Chesterman, see note 11, 137. Para. 30. Doc. S/1999/1024, see note 94, para. 47. 346 Max Planck UNYB 9 (2005) out above,268 East Timorese representatives were not involved during the planning phase before or immediately after the passing of S/RES/1272 in October 1999. Likewise, in the early stages of UNTAET’s operation, there seems to have been little or no participation of East Timorese in the work of the newly established transitional administration,269 despite the commitment to the “principles of participation and capacity-building”. Only support staff was recruited locally.270 This may have been caused by different circumstances: first, planning and recruitment for UNTAET within the UN was not proceeding at the necessary pace regarding the composition and responsibilities of the transitional administration and the manner in which it would work with the East Timorese population.271 Second, an internal dispute within the United Nations slowed the process: the UN Department of Political Affairs had been in charge of overseeing the 5 May agreements and the subsequent popular consultation. The Department of Peacekeeping Operations took over with the deployment of INTERFET. Now, after the military intervention, a turf war commenced between the two departments, ultimately leaving the Department of Peacekeeping, which had little experience in East Timor and, in contrast to the Department of Political Affairs, virtually no local expertise or contacts, in charge of UNTAET.272 Third, the inherent necessities of the political process after the 5 May agreements apparently required the East Timorese resistance movement to keep a low profile in the governing structures of the transitional administration in deference to Indonesian sensibilities.273 Thus, even though the CNRT had requested that the East Timorese resistance movement be involved to a significant degree in the structure of the transitional administration, these proposals were essentially disregarded.274 Fourth, the United Nations was faced with 268 269 270 271 272 273 274 At V. 1. J.M. Saldana/ M.X. Magno, “Mission Implementation: Developing Institutional Capacities” in: Azimi, see note 257, 161 et seq. (162). Suhrke, see note 100, 10. M.G. Smith/ M. Dee, Peacekeeping in East Timor, The Path to Independence, 2003. S. Jones, “East Timor: The Troubled Path to Independence”, in: A.H. Henkin (ed.), Honoring Human Rights Under International Mandates, Lessons from Bosnia, Kosovo, and East Timor, 2003, 115 et seq. (120); Suhrke, see note 100, 6. Suhrke, see note 100, 5. Suhrke, see note 100, 9. Benzing, Case Study – East Timor 347 the difficult situation of not wanting to unduly influence the political process in East Timor by according too much influence to a resistance group that was not democratically legitimised and would have been given clear preference over other groups if used as the only channel for East Timorese participation.275 Approximately two months after the establishment of the transitional administration, the Transitional Administrator set up the first formal institution for implementing the dialogue requirement contained in the Security Council mandate. All things considered, one may distinguish between three phases of increasing participation by East Timor elites, the fourth, as a logical consequence, being independence.276 It is important to note from the outset that this process can by no means be characterised as one of gradual delegation of power. The Transitional Administrator, save in the field of the administration of justice, did not gradually hand over more and more legislative and executive competencies to East Timorese institutions. Rather, he concentrated on creating structures and institutions with purely consultative functions. However, these institutions over time increasingly resembled those of a state, clearly with a view to preparing East Timor for self-government, and the procedures for consultation became more formalised and effective. They remained purely consultative nonetheless.277 a. Phase 1: The National Consultative Council Following negotiations between UNTAET and the Timorese resistance, the transitional administration installed a non-elected body, the National Consultative Council (NCC),278 in December 1999, with the task of advising the Transitional Administrator on “on all matters related to the exercise of the Transitional Administrator’s executive and legislative 275 276 277 278 See Conflict Security & Development Group, King’s College London, see note 22, paras. 170 and 293. See under VI. This is at odds with the request expressed in S/RES/1338 (2001) of 31 January 2001, the resolution extending UNTAET’s mandate for the first time, to “delegate progressively further authority within the East Timor Transitional Administration (ETTA) to the East Timorese people until authority is fully transferred to the government of an independent State of East Timor.” (at para. 3). UNTAET/REG/1999/2 of 2 December 1999; Doc. S/2000/53, para. 4. 348 Max Planck UNYB 9 (2005) functions”.279 It consisted of 15 members, four from UNTAET, including the Transitional Administrator who chaired the NCC.280 11 members were to be East Timorese. The distribution of seats within the East Timorese group was intended to reflect the major political actors and elites in East Timor:281 seven representatives of the CNRT, three of other political groups outside the CNRT, and one representative of the Roman Catholic Church in East Timor. It seems that the three seats reserved for the “opposition” were never really filled, as they represented the pro-integration movement which had no political support in East Timor.282 New political parties which could have potentially challenged the views of the CNRT were not involved. Village and sub-district councils complemented the structure on the local level.283 The regulation describes the NCC as “the primary mechanism through which the representatives of the people of East Timor shall actively participate in the decision making process ... and through which the views, concerns, traditions and interests of the East Timorese people will be represented”.284 Its functions were purely advisory, the final authority remaining with the Transitional Administrator.285 b. Phase 2: The First Transitional Government: The National Council and the Cabinet The second phase was first of all characterised by a change in name: on 14 July 2000, the NCC was dissolved and replaced by two bodies: the National Council (NC)286 and a Cabinet were established and, together with the Transitional Administrator, collectively referred to as the First Transitional Government,287 implying that institutions for a new state were created. 279 280 281 282 283 284 285 286 287 UNTAET/REG/1999/2, para. 1.1. UNTAET/REG/1999/2, para. 2.6. Critics have argued that these elites were essentially self appointed rather than representative: Chopra, see note 55, 999. Chopra, see note 55, 990. UNTAET/REG/2000/13 of 10 March 2000. UNTAET/REG/1999/2, para. 1.2. See UNTAET/REG/1999/2, para 1.3: “[The National Consultative Council] shall in no way prejudice the final authority of the Transitional Administrator in exercising the responsibilities vested in UNTAET …”. UNTAET/REG/2000/24 of 14 July 2000. Ingram, see note 257, 86. Benzing, Case Study – East Timor 349 The NC consisted of 33, later 36 members.288 Its members were all East Timorese, though appointed by the Special Representative. The NC had the competence to initiate, modify and recommend draft regulations, as well as to amend existing regulations.289 Though the Transitional Administrator formally retained final decision making authority, apparently none of the proposals made by the NC was vetoed by the Transitional Administrator.290 While the NCC had been concerned with both executive and legislative matters, the NC was established as the “forum for all legislative matters related to the exercise of the legislative authority of the Transitional Administrator”,291 the reason for this cutback in powers being that the executive branch was now given to the Cabinet. The mechanism for choosing the members of the NC was widely criticised by NGOs.292 The nine-member “Cabinet of the Transitional Government in East Timor”, a body comprising both East Timorese leaders and international experts,293 replaced the third pillar of UNTAET, Governance and Public Administration (GPA). It headed the East Timor Transitional Administration (ETTA), and was designed to serve as a basis for a postindependence governmental structure.294 Of the nine posts initially established, four were reserved for East Timorese (Internal Administration, Infrastructure, Economic Affairs, and Social Affairs) and four to international experts (Police and Emergency Services, Political Affairs, Justice, and Finance); the Transitional Administrator served as the chair. As opposed to the NC, which was tasked with legislative functions, the Cabinet was entrusted with executive tasks. It will be noticed that the portfolios do not comprise the range of functions normally performed by a government.295 Cabinet members exercised broad discretion over the policy in their respective portfolios; major decisions were taken collectively.296 288 289 290 291 292 293 294 295 296 See UNTAET/REG/2000/33 of 26 October 2000, sec. 1.1. UNTAET/REG/2000/24, sec. 2.1 (a). Chesterman, see note 11, 151; but see Ingram, see note 257, 87, who suggests that there were a few instances of disapproval by the Transitional Administrator. Section 1.1. Ingram, see note 257, 87. UNTAET/REG2000/23 of 14 July 2000. Morrow/ White, see note 16, 6. Ingram, see note 257, 90. Ingram, see note 257, 87. 350 Max Planck UNYB 9 (2005) In October 2000, the NC was enlarged to 36 members and José Ramos-Horta was appointed cabinet member for Foreign Affairs, bringing the number of portfolios held by East Timorese up to five.297 c. Phase 3: The Second Transitional Government In September 2001, the NC and Cabinet were supplanted by a Second Transitional Government,298 consisting of a Council of Ministers and an elected Constituent Assembly299 in an effort to lay the essential foundations for the political institutions of an independent East Timor.300 The Council of Ministers was led by a Chief Minister and had as task the supervision of the East Timor Public Administration (ETPA),301 which replaced ETTA. All members were appointed by the Transitional Administrator “after appropriate consultation with the elected representatives of the people of East Timor”,302 and were accountable to him.303 The Council had the power to recommend draft regulations and directives, and was to give advice to the Transitional Administrator on matters referred to it by the Administrator.304 All decisions taken by it, however, were subject to the review and approval of the Transitional Administrator, without which they had no legally binding effect.305 An additional safeguard for the absolute final decision-making power in relation to legislative and executive authority was provided in section 13 of Regulation No. 2001/28.306 297 298 299 300 301 302 303 304 305 306 See Report of the Secretary-General on the United Nations Transitional Administration in East Timor (for the period 27 July 2000 to 16 January 2001), Doc. S/2001/42 of 16 January 2001, para. 9. UNTAET/REG/2001/28 of 19 September 2001. UNTAET/REG/2001/2. Ingram, see note 257, 87. UNTAET/REG/2001/28, sec. 3.1 (b). UNTAET/REG/2001/28, sec. 1.3. UNTAET/REG/2001/28, sec. 1.5. UNTAET/REG/2001/28, sec. 3.1 (c)-(e). UNTAET/REG/2001/28, sec. 5.6. “Nothing in the present regulation shall derogate from the legislative authority and ultimate executive authority of the Transitional Administrator as established by United Nations Security Council resolution 1272 (1999) of 25 October 1999 and resolution 1338 (2001) of 31 January 2001, and UNTAET Regulation No. 1999/1.” Benzing, Case Study – East Timor 351 The Constituent Assembly was the first democratically elected representative body in the history of East Timor with the primary task of drafting a constitution for an independent and democratic East Timor; it was largely dominated by Fretilin.307 d. Evaluation: The “Interventionist” and “Optimist” Approaches Some UNTAET officials later criticised the early efforts to consult with the East Timorese population as “confused at best”, and lacking in clear strategy and concept.308 Others have argued that UNTAET seemed to compete directly with the East Timorese over roles in and control over the state-building process.309 “Capacity building” was perceived to necessarily begin with low-level education and involvement, disregarding the need to involve more senior levels of the East Timor elite. On the other hand, the strategy of gradual delegation of executive and legislative authority has also received praise, even though problems are acknowledged.310 However, even when the local population was increasingly allowed to participate in the governance of the territory, the instruments providing for such involvement never left a doubt that the final decision-making authority under UNTAET remained with the Transitional Administrator. In the discussion on the appropriate (in political terms) and indispensable (in legal terms) level of the involvement of the local population, one can – with a certain generalisation – identify two broader competing approaches: the first, which one may somewhat pointedly classify as “interventionist”, more or less readily accepts that local participation in transitional administrations must be very limited for practical and political reasons, at least for a – more or less extended – initial period of “temporary imperialism”.311 Arguing that it is precisely the task of a transitional administration to fulfil (traditional state) functions that the local population cannot discharge for lack of capacity, it accepts that “[i]nternational engagement will sometimes abrogate the most basic rights to self-governance on a temporary basis”312 and that interna307 308 309 310 311 312 For a detailed discussion of the Constituent Assembly see under VI. 1. Chesterman, see note 11, 139. Kreilkamp, see note 89, 655. Ingram, see note 257, 87. See M. Ignatieff, Empire Lite, Nation-building in Bosnia, Kosovo and Afghanistan, 2003, vii. Chesterman, see note 11, 152, 182. 352 Max Planck UNYB 9 (2005) tional administrations are necessarily unaccountable to a large extent.313 If the local population had the political, military and economic means to provide for their security and economic development, there would be no need to create an international transitional administration in the first place.314 Consequently, “[c]ontemporary transitional administrations might benefit from being more, not less, colonial – even as that relationship is regarded as a temporary if necessary evil.”315 The rationale of intervention by the international community is not only to stop wars or assist in the rebuilding of state structures and institutions, but to “get foreign countries to do what the international community wants them to do”,316 i.e. to accept liberal, democratic and humanitarian values.317 “Ownership” of institutions by the local population, demanded in most critical assessments of transitional administrations, would only be the end, not the means of a transitional administration.318 International “peace-builders” are “state-builders”; they “serve as surrogate governing authorities for as long as it takes to implement the liberalizing reforms that the peace-builders themselves prescribe for war-shattered states”.319 The second approach, called “optimist” here, is based on the legal analysis that the population in question has the right to selfdetermination. If this is taken seriously, transitional administrations by law have to enable the local population to participate meaningfully in the process of rebuilding their community.320 Moreover, it is argued that such participation from an early stage is also a prerequisite for a successful state-building exercise in terms of capacity-building and the legitimacy of institutions established by the administration.321 The important structural decisions, if they were to be accepted in an independent and politically self-reliant state, have to be made by the local popu- 313 314 315 316 317 318 319 320 321 Caplan, International Governance, see note 253, 199. Chesterman, see note 11, 143. Chesterman, see note 11, 47. K.Z. Marten, Enforcing the Peace, Learning from the Imperial Past, 2004, 8. R. Paris, At War’s End, Building Peace After Civil Conflict, 2004, 179 et seq.; Marten, see note 316, 37 Chesterman, see note 11, 144. Paris, see note 317, 206. de Wet, see note 107, 329. Compare Kreilkamp, see note 89 et seq. and Chopra, see note 55, 994 et seq. Benzing, Case Study – East Timor 353 lation.322 It is thus essential that individuals employed by transitional administrations do not develop a “colonialist personal attitude”. The dangers of an undiluted “interventionist” approach are illustrated by the perception that the governed East Timorese population itself had of UNTAET. Some of the people staffing UNTAET have been somewhat cynically characterised a “kind of A-team of international technocrats”,323 who did not care for the cultural context they were operating in.324 Moreover, the only gradual delegation of powers has been intensely criticised by the East Timorese society. The establishment of the NCC did little to satisfy East Timorese demands for participation in the decision-making process. As a high UNTAET official remarked: “[t]he Timorese thought they had little choice but to ratify whatever was put in front of them. They were essentially told ‘If you don’t do this, there’ll be dire consequences with no money to follow’ ”.325 Furthermore, the NCC’s procedure was criticised as too secretive, its composition as unrepresentative.326 The next step in East Timorese participation, the NC, was equally perceived as paying lip-service to the commitment of involving the local population and UNTAET accused of having established it only to give apparent legitimacy to its autocratic rule.327 Along the same lines, the Timorese Cabinet members complained of being: “used as a justification for the delays and the confusion in a process which is outside our control. The East Timorese Cabinet members are caricatures of ministers in a government of a banana republic. They have no power, no duties, no resources to function adequately”.328 This perception may have been exacerbated by the language barrier: most international staff did not have the requisite language skills to communicate with the local population in their mother tongue. Conse- 322 323 324 325 326 327 328 Morrow/ White, see note 16, 45. Traub, see note 1, 82. See Steele, see note 25, 84. P. Galbraith, quoted in Steele, see note 25, 79. See Bongiorno, see note 158, 657. J.M. Saldanha/ M.X. Magno, “UNTAET: Mandate, East Timorese Role, and Exit Strategy”, in: Azimi, see note 257, 162. Quoted in Chesterman, see note 11, 140. 354 Max Planck UNYB 9 (2005) quently, by far the largest amount of the paperwork produced was in English, even until independence.329 Practical reasons may, however, indeed demand that the outside interveners, at least in the initial stages of the process, take all authority in their hands. Thus, in East Timor following the 1999 turmoil, the local workforce which could have provided UNTAET with skilled civil servants was scattered. Most civil servants in a senior position had been Indonesian or East Timorese affiliated to them, and had left the territory.330 One may thus come to the conclusion that, while not intended to be colonial, the relationship between international administrations and the local population is “inherently colonial” in character.331 What is needed in situations like East Timor seems to be a balancing effort between practical considerations and the overarching principle of self-determination. The right to self-determination has to be given effect wherever possible. Consultation is not only a matter of legitimacy, but also legality. On the other hand, it would be illusionary to try to integrate the population into the administration of the territory where no qualified people exist to discharge the duties at hand. Still, it seems clear that, if the transformation process that the transitional administration is to help initiate, organise, and steer towards a successful outcome, is to have a lasting effect, it is crucial that the local population have a stake in the creation of the structures of the new political community.332 Participation is vital for the ultimate success of the mission, i.e. a viable state structure, government and political community, and moreover is indispensable for the successful day-to-day administration of the territory under territorial administration. However, as already indicated, transitional administrations face a problem in properly identifying persons who could legitimately speak for the “people” entitled to self-determination. Different factions normally exist within a social entity, with differing views for the future of their community. In the case of UNTAET, the territorial administration from the very beginning of operations had perceived the CNRT as the channel through which consultation with the East Timorese people could be implemented. The difficulties of this approach were identified by the Transitional Administrator: 329 330 331 332 Ingram, see note 257, 89. Ingram, see note 257, 88. Ignatieff, see note 311, 95. Chesterman, see note 11, 143; Paris, see note 317, 210. Benzing, Case Study – East Timor 355 “The more powers conferred on local representatives, the closer power is to the people and thus the more legitimate the nature of the administration. But conferring power on non-elected local representatives can also have the undesired effect of furthering a particular party.”333 A one-sided approach thus could work against the ideal of involvement of the population, i.e. to accurately reflect the will of the governed population, and could lead to a change in the political landscape. This would arguably have been at odds with the duty to assist the East Timorese to exercise their right to self-determination. 6. Administration of Justice and Judicial Post-Conflict Management a. Reconstruction in the Justice Sector: Starting from a Tabula Rasa The “CIA World Factbook” proclaims that East Timor’s legal system today is in essence a “UN-drafted legal system based on Indonesian law.”334 In many areas, this is true: section 165 of the East Timorese Constitution provides that “[l]aws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein.” Given that the transitional administration has embarked on extensive legislative projects during its governance of the territory, many fields of law continue to be regulated, at least in part, by virtue of that constitutional provision.335 UNTAET was faced with the task of building a judicial system virtually from scratch, as the court system, for practical purposes, had 333 334 335 S. Vieira de Mello, “How not to run a country: Lessons for the UN from Kosovo and East Timor”, available at: <http://www.jsmp.minihub.org/ Reports/INTERFET%20DETAINEE%20MANAGEMENT%20UNIT %20IN%20EAST%20TIMOR.pdf> (last visited 7 February 2005). Available at: <www.cia.gov/cia/publications/factbook/geos/tt.html> (last visited 2 February 2005). For the justice sector compare only Judicial System Monitoring Programme, Overview of the Courts in East Timor, 17 December 2004, available at: <http://www.jsmp.minihub.org/Reports/jsmpreports/Final% 20Report%202004/court%20final%20report%202004(e).pdf> (last visited on 2 February 2005). Max Planck UNYB 9 (2005) 356 ceased to function since judges, prosecutors and other legal specialists had left the territory.336 Thus, there were no East Timorese judges or Prosecutors in East Timor on which UNTAET could have relied in building the East Timorese judiciary. In its efforts to reconstruct the system, it had to tackle three main issues: (1) the lack of qualified jurists; (2) the lack of infrastructure; and (3) the uncertainty about the applicable law. Its mandate included the “administration of the judiciary” and thereby tasked it not only with (re)constructing the judiciary of East Timor, but also with exercising the functions of the judiciary until a functioning judicial system was put in place. The complexity of the task due to these inauspicious circumstances was exacerbated by the only limited planning on justice issues.337 aa. Lack of Qualified Personnel Under Indonesian rule, no person from East Timor had been appointed as judge or prosecutor.338 To supervise the reconstruction effort, and to avoid allegations that the independence of the judiciary was compromised, the Transitional Administrator established a Transitional Judicial Service Commission with three East Timorese and two international members.339 It was chaired by an East Timorese member of “high moral standing”, and had the additional task of drafting codes of ethics for judges and prosecutors and serving as a disciplinary body reviewing complaints of misconduct.340 The search for qualified local lawyers was inter alia implemented by dropping leaflets from INTERFET planes.341 On 7 January 2000, the first judges, prosecutors and public defenders of the District Court of Dili were appointed by the Transitional Administrator on recommendation of the Transitional Judicial Service Commission for an initial period of two years.342 None of these ap336 337 338 339 340 341 342 Doc. S/1999/1024, see note 94, para. 33; compare also Conflict Security & Development Group, King’s College London, see note 22, para. 217. See Conflict Security & Development Group, King’s College London, see note 22, para. 222. Chesterman, see note 11, 170. UNTAET Regulation 1999/3 of 3 December 1999, article 2. H. Strohmeyer, “Making Multilateral Interventions Work: The U.N. and the Creation of Transitional Justice Systems in Kosovo and East Timor”, Fletcher Forum of World Affairs 25 (2001), 107 et seq. (116). Strohmeyer, see note 160, 263. Linton, see note 163, 133. Benzing, Case Study – East Timor 357 pointees had previous experience in the area he or she had to work in. Interestingly, these appointments were effected before laws were in place defining their competencies and functions.343 This peculiarity made it necessary to retroactively “validate” some of the decisions taken by judges.344 bb. Lack of Infrastructure and Court System As a result of the post-ballot violence, virtually the entire judicial infrastructure, including most court buildings, judicial archives, records and legal literature had been destroyed.345 The fundamental legislative instrument for the reorganisation of the judicial system in East Timor is Regulation No. 2000/11.346 Most importantly, it vested exclusive judicial authority in the courts of East Timor, signalling that the Transitional Administrator delegated his judicial competence, while retaining the (legislative) authority to change the organisation and jurisdiction of courts. UNTAET established a civil law court system with eight (later: four) district courts and one Court of Appeal with its seat in Dili.347 The judges in the District Court of the capital, Dili, were to have jurisdiction throughout the entire territory of East Timor.348 A Public Prosecution Service was established in June 2000.349 cc. Uncertainty Concerning the Applicable Law In general, one may argue that the internationalisation of a territory, along with the creation of an international administration does not necessarily entail abrogation of all laws applicable before the intervention 343 344 345 346 347 348 349 M. Othman, “The Framework of Prosecutions and the Court System in East Timor”, in: K. Ambos/ M. Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, 2003, 85 et seq. (87). Linton, see note 163, 134. H. Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor”, AJIL 95 (2001), 50 et seq. UNTAET/REG/2000/11 of 6 March 2000. UNTAET/REG/2000/11, sec. 4 and 7; UNTAET/REG/2000/14 of 10 May 2000. UNTAET/REG/2000/11, sec, 7.3. UNTAET/REG/2000/16 of 6 June 2000. 358 Max Planck UNYB 9 (2005) by the international community. Borrowing from the “rule of continuity” known from the law of occupation,350 it may be reasonable to argue that, as a matter of international law, all norms continue to apply in an internationalised territory until changed or abolished.351 It was the conscious decision of UNTAET to follow this principle, with certain exceptions.352 As a matter of fact, other options were hardly attractive. The (re)enactment of Portuguese law as applicable until the occupation in 1975 was impractical and would have led to legal uncertainty, given that most East Timorese were familiar only with Indonesian law.353 Thus, the transitional administration determined by its first regulation that the laws applied in East Timor prior to 25 October 1999 (the date of the passing of Security Council Resolution 1272) shall apply under three conditions: (1) that they conformed to international human rights standards contained in instruments as specified in section 2 of the Regulations; (2) that they were not incompatible with the fulfilment of the mandate of UNTAET; and (3) that they were not replaced by this first or subsequent UNTAET Regulations, or subsequent legislation of democratically established institutions of East Timor.354 Several Indonesian laws were expressly identified and declared not applicable in East Timor as conflicting with the standards set out in section 2.355 In addition, capital punishment was abolished.356 Thus, at least in theory, UN-originated law and domestic law complemented each other. In reality, however, UNTAET’s own legislation often turned out to be politically unenforceable (e.g. the regulations concerning offensive weapons and electoral offences357). Some of the (still) applicable Indonesian law was equally problematic for political reasons and faced legitimacy and acceptance problems.358 In addition, Indonesian law in general was often marginalised by UNTAET itself 350 351 352 353 354 355 356 357 358 See article 64 Geneva Convention IV. For this approach see Bothe/ Marauhn, see note 125, 154. See already Doc. S/1999/1024, see note 94, para. 32. Morrow/ White, see note 16, 7; Strohmeyer, see note 160, 267. UNTAET/REG/1999/1, sec. 3. UNTAET/REG/1999/1, sec. 3.2. UNTAET/REG/1999/1, sec. 3.3. UNTAET/REG/2001/5 of 23 April 2001 and UNTAET/REG/2001/11 of 13 July 2001, see Conflict Security & Development Group, King’s College London, see note 22, para. 308. Goldstone, see note 91, 91 and 93. Benzing, Case Study – East Timor 359 for practical reasons: developing its own regulations helped avoiding the problem of familiarising oneself with the Indonesian law and of assessing the conformity of such law with the applicable international human rights standards.359 This would have been a time-consuming exercise for which neither human resources nor legal expertise was present to a sufficient degree, and that was consequently never tackled.360 As a consequence, UNTAET was not in a position to strategically pick those parts from Indonesian law which would contribute to stabilising the situation as this law was well understood by East Timorese judges, lawyers and the police. This uncertainty regarding the applicable law did not make things easier for the newly appointed East Timorese judges and prosecutors.361 On the other hand, legislating “from scratch” in many areas of law proved to be practically impossible.362 In response to these problems, calls have been made to the effect that “model codes” should be developed and applied in UN peace operations, enabling the interveners to quickly react to situations where the existing law is problematic in terms of human rights.363 As attractive as this may seem at first sight, it is questionable whether a standard code concocted from ingredients taken from different legal systems would do justice to a territory with its particular legal and cultural traditions. Moreover, proposals for such model codes have mostly focused on criminal law and procedure. However, the problems described extend to all areas of law. b. Coming to Terms with the Past: Post-Conflict Justice While the International Commission of Inquiry on East Timor had called for the establishment of an international human rights tribunal 359 360 361 362 363 Strohmeyer, see note 345, 59. Morrow/ White, see note 16, 9; Linton, see note 163, 137; Conflict Security & Development Group, King’s College London, see note 22, para. 226. Apparently, some efforts were made to systematically evaluate Indonesian law with a view to identifying those parts not compatible with human rights law, compare Strohmeyer, see note 160, 267. Compare M. Othman, “East Timor: A Critique of the Model of Accountability for Serious Human Rights and International Humanitarian Law Violations”, Nord. J. Int’l L. (2003), 449 et seq. (462). Cf. Morrow/ White, see note 16, 11. See B.M. Oswald, “Model Codes for Criminal Justice and Peace Operations: Some Legal Issues”, Journal of Conflict and Security Law 9 (2004), 253 et seq. 360 Max Planck UNYB 9 (2005) for the judging of past crimes,364 it soon became clear that Indonesia would not support such an institution and refused co-operation.365 Prosecution of persons accused of serious crimes, therefore, remained part of the domestic process both on the Indonesian and the East Timorese side.366 Accordingly, Regulation 2000/11 of 6 March 2000 that concerned the functioning and organisation of the courts in East Timor during the transitional period vested exclusive jurisdiction over genocide, crimes against humanity, war crimes, and torture, as well as murder and sexual offences committed between 1 January 1999 and 25 October 1999 in the Dili District Court and the Court of Appeal in Dili.367 The cases concerned were heard by mixed panels (commonly referred to as “special panels”) composed of both East Timorese and international judges.368 The exact procedure to be followed in the investigation, prosecution and trial, as well as the precise definition of the crimes to be investigated, were set out in Regulation 2000/15.369 Thus, a Panel at the Dili District Court consisted of two international and one East Timorese judge.370 A Panel in the Court of Appeal normally had the same set-up; in cases of special importance or gravity, a panel of five judges composed of three international and two East Timorese judges could be established.371 The Panels started hearing cases in January 2001, and since May 2002 have continued their work as part of the judicial system of the independent Timor-Leste. The prosecution of those cases was entrusted to a newly established Deputy General Prosecutor for Serious Crimes, the principal official in 364 365 366 367 368 369 370 371 United Nations Office of the High Commissioner for Human Rights, see note 48, para.153. Chesterman, see note 11, 170. As to Indonesia’s efforts to deal with these crimes, compare Othman, see note 343, 103 et seq. and S. de Bertodano, “East Timor: Trials and Tribulations”, in: C.P.R. Romano/ A. Nollkaemper/ J.K. Kleffner, Internationalized Criminal Courts and Tribunals, 2004, 79 et seq. (92 et seq.); S. Linton, “Unravelling the First Three Trials at Indonesia’s Ad Hoc Court for Human Rights Violations in East Timor”, LJIL 17 (2004), 303 et seq. UNTAET/REG/2000/11, sec. 10. UNTAET/REG/2000/11, sec. 10.3. 6 June 2000. See K. Ambos/ S. Wirth, “The Current Law of Crimes Against Humanity, An analysis of UNTAET Regulation 15/2000”, Criminal Law Forum 13 (2002), 1 et seq. and Kreß, see note 120. UNTAET/REG/2000/15, sec. 22.1. UNTAET/REG/2000/15, sec. 22.2. Benzing, Case Study – East Timor 361 charge of the Department of Prosecution of Serious Crimes.372 The Deputy General Prosecutor headed a Serious Crime Investigation Unit (SCIU), comprising criminal investigators, crime analysts and forensic experts.373 Sadly, the operation of the Special Panels, as well as the Court of Appeal, has been marred since their inception, mostly by lack of resources,374 failure to make appointment of judges and by lack of cooperation by Indonesia.375 The outcome of the trials to date has thus not received unqualified praise. As stated, the applicable law was and is far from clear. In addition to the uncertainties caused by the failure of Regulation 1999/1 to explicitly identify the applicable law, the case law of the Court of Appeal did not help to ease the problem. An extremely problematic decision in 2003,376 held that Indonesian law, which continues to be in force by way of section 165 of the Constitution and Regulation 1999/1, was not applicable. According to the Court’s reasoning, this statement was not limited to the case at hand, but concerned the applicability of Indonesian law in East Timor in general. Instead, Portuguese law was applied. Even more important, the Court held that Regulation 2000/15, defining the jurisdiction over international crimes, could not be applied to acts performed before this Regulation was enacted as a consequence of the principle nullum crimen sine lege, enshrined in section 31 of the Constitution. To make matters worse, international cooperation in terms of funding and appointment of judges was far from satisfactory: until July 2003, the panels were seriously understaffed, never allowing for more than one trial panel to sit at once.377 At the beginning of 2003, there was 372 373 374 375 376 377 UNTAET/REG/2000/16 of 6 June 2000, sec. 14. Othmann, see note 361, 464. See S. Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, Criminal Law Forum 12 (2001), 185 et seq. (215). de Bertodano, see note 366, 80. Prosecutor v. Armando Dos Santos, (Case No. 16/2001), Decision, Court of Appeal, 15 July 2003, available at: <www.jsmp.minihub.org/judgmentspdf/ courtofappeal/Ct_of_App-dos_Santos_English22703.pdf>; discussed in S. de Bertodano, “Current Developments in Internationalized Courts, East Timor – Justice Denied”, Journal of International Criminal Justice 2 (2004), 910 et seq. (916). Steele, see note 25, 81; de Bertodano, see note 366, 87; Othman, see note 361, 463. 362 Max Planck UNYB 9 (2005) only a single panel operating; by early April, the departure of one of the international judges even prohibited this panel from continuing its work, until three more international judges were appointed in April 2003. To complement the judicial mechanisms, a Commission for Reception, Truth and Reconciliation was established.378 It linked the need for reconciliation with the need for reconstruction,379 in an effort to induce refugees in West Timor to return. Its objective is “to promote national reconciliation and healing following the years of political conflict in East Timor, and in particular, following the atrocities committed in 1999”380 by “establishing the truth regarding the commission of human rights violations”.381 The Commission had the competence to establish so-called “Community Reconciliation Processes” that barred civil liability and prosecution for crimes not judged as “serious”, such as theft, minor assault, arson and property damage.382 No provision for granting an amnesty exceeding this limited “immunity” is made.383 The General Prosecutor and the Serious Crimes Panels, though, retained exclusive jurisdiction for serious crimes.384 Under this process, a person responsible for criminal or noncriminal acts committed within the context of the political conflict in East Timor between 25 April 1975 and 25 October 1999 may exempt him- or herself from court proceedings. The person, called “Deponent” initiates the process with a written statement to the Commission comprising inter alia a full description of the facts, an admission of responsibility, and a request to participate in a Community Reconciliation Process.385 Following a public hearing, the Commission proposes an “act of reconciliation”, which the Deponent has to accept; a Commu- 378 379 380 381 382 383 384 385 UNTAET/REG/2001/10 of 13 July 2001; <www.easttimor-reconciliation. org>. Chesterman, see note 11, 158. UNTAET/REG/2001/10 of 13 July 2001, Preamble. UNTAET/REG/2001/10, sec. 13.1. UNTAET/REG/2001/10, Schedule 1; Linton, see note 163, 148. See B.S. Lyons, “Getting Untrapped, Struggling for Truths: The Commission for Reception, Truth and Reconciliation (CAVR) in East Timor”, in: Romano, see not e 366, 100 et seq. (108). UNTAET/REG/2001/10, sec. 22.2. UNTAET/REG/2001/20, sec. 23.1. Benzing, Case Study – East Timor 363 nity Reconciliation Agreement is then produced.386 This Agreement is submitted to the competent District Court for registration.387 The Commission, at the time of writing in the last months of its operation, is preparing a final report expected to be delivered to the President of Timor-Leste before 7 July 2005. Maybe prompted by the unsatisfactory progress of the process of post-conflict reconciliation and justice, the Secretary-General decided to set up a Commission of Experts with the task of conducting “a thorough assessment” of the “processes involving the Ad Hoc Human Rights Tribunal in Jakarta … and the Serious Crimes Unit and the Special Panels for serious crimes in Dili”.388 In addition, Indonesia and East Timor agreed on the establishment of a joint Truth and Friendship Commission to deal with human rights abuses perpetrated in 1999 and other bilateral issues.389 VI. Independence and Continuing State-Building 1. Preparations for Independence: The Constituent Assembly and the Drafting of the Constitution UNTAET’s mandate did not explicitly include the initiation of a constitution-making process; neither are constitutions generally speaking a necessary prerequisite for a country’s independence. However, the Report of the Secretary-General of 4 October 1999 enumerated among UNTAET’s objectives “to assist the East Timorese in the development of a constitution”.390 Furthermore, it was a generally held conviction in UNTAET that a hand-over of power to the East Timorese would only be possible after a constitutional framework was in place to steer the first steps of the newly independent state.391 After playing with the idea of entrusting the drafting of the future constitution of East Timor to a 386 387 388 389 390 391 See UNTAET/REG/2001/20, secs 27.7 and 27.8. UNTAET/REG/2001/20, sec. 28. Progress report of the Secretary-General on the United Nations Mission of Support in East Timor, Doc. S/2005/99 of 18 February 2005, para. 8. Id., para. 7. Para 29 (e). Morrow/ White, see note 16, 33, fn. 139. 364 Max Planck UNYB 9 (2005) committee appointed by the Transitional Administrator,392 it was decided that an elected body should be in charge after CNRT and the National Council had expressed their support for an election of the members. In addition to the fact that elections have been described as the preferred mechanism for handing over power from an “undemocratic” international administration to a democratic and locally legitimate government, they, at least in theory, may be a means to include local actors in a state-building and peace-building effort, gaining their support for the desired change in governmental structure and system.393 A regulation concerning the election of the Constituent Assembly, scheduled for 30 August, was promulgated on 16 March 2001 that formed the basis for the preparation of the electoral roll.394 It went hand in hand with the passing of a regulation on electoral offences395, a directive providing for the procedure to follow in consulting with the East Timorese people on the contents of the future constitution,396 as well as the establishment of an Independent Electoral Commission entrusted with preparing and conducting the elections. In addition, the Constituent Assembly replaced the NC; unlike its predecessor, it did not have the power to initiate Regulations. On the same day as the promulgation of UNTAET/REG/2001/2, civil registration of all residents began and by 23 June 737,811 people had registered. On 30 August 2001, two years after the Popular Consultation, more than 91 per cent of East Timor’s eligible voters elected an 88-member Constituent Assembly tasked with writing and adopting a new Constitution and establishing the framework for future elections and a transition to full independence. Out of the members of the Constituent Assembly, 75 were elected on a nation-wide basis by proportional representation. The election proceeded from the basis of closed party lists. Thirteen seats were given to directly elected candidates from the 13 electoral districts.397 In an effort at “electoral engineering”, the fact that the large majority of seats was elected by proportional representation was intended to reduce the 392 393 394 395 396 397 See Morrow/ White, see note 16, 34. Chesterman, see note 11, 205-206. UNTAET/REG/2001/2. UNTAET/REG/2001/11 of 13 July 2001. UNTAET/DIR/2001/3 of 30 March 2001, Directive on the establishment of District Constitutional Commissions. B. Reilly, “Post-Conflict Elections: Constraints and Dangers”, International Peacekeeping 9 (2002), 118 et seq. (131). Benzing, Case Study – East Timor 365 likelihood of Fretilin winning a large majority, not seen as healthy for an emerging democracy.398 Female candidates were not given special treatment, be it that a party list had to include a particular number of women, or that a particular number of seats was reserved for women.399 Sixteen political parties, five national independent candidates and 11 district independent candidates took part in the elections.400 As expected, Fretilin emerged as the clear winner of the elections, gaining 55 out of 88 seats. Sixty votes were necessary for the adoption of the final document. The original timetable envisaged 90 days for the drafting of the Constitution; this was later extended by three months. Thirteen constitutional commissions were established by a directive – ironically, the draft regulation intended to set up the commissions was the only one to be refused approval by the National Council401 – to conduct popular consultations,402 which were implemented by holding several public meetings throughout East Timor. The role of UNTAET in the actual drafting process does not seem to have been disproportionately meddling. It was a conscious decision to leave the discussion on the future shape of the East Timorese governmental system to the people. The transitional administration warranted that the infrastructure of the Assembly was adequate and included properly qualified international advisers to follow the drafting process.403 If UNTAET deemed it necessary and appropriate, it made comments on procedural or substantive issues.404 To this end, UNTAET utilised the consultative mechanisms of the Constituent Assembly, which had been originally intended to enable the East Timorese public to provide the Assembly with input.405 398 399 400 401 402 403 404 405 See Chesterman, see note 11, 216. See Chesterman, see note 11, 217. C. Valenzuela, “Towards Elections” in: Azimi/ Chang, see note 257, 179 et seq. Conflict Security & Development Group, King’s College London, see note 22, para. 317. H. Charlesworth, “The Constitution of East Timor, May 20, 2002”, International Journal of Constitutional Law 1 (2003), 325 et seq. (327). See Morrow/ White, see note 16, 40. Morrow/ White, see note 16, 36. Morrow/ White, see note 16, 41. See also Devereux, see note 155, 310. 366 Max Planck UNYB 9 (2005) The final draft of the Constitution was put to vote on 22 March 2002. Of the 88 votes, 73 were cast in favour, 14 against, with 1 abstention.406 2. First (presidential) Elections and Independence of East Timor On 14 April 2002, Xanana Gusmão was elected first president of East Timor with an overwhelming majority of 82.7 per cent. On 20 May 2002, East Timor gained its independence. At the same time, the Constituent Assembly was transformed into East Timor’s first parliament. In a controversial move, the Constituent Assembly decided to insert a provision into the Constitution providing that “[t]he Constitutional Assembly shall be transformed into a National Parliament with the entering into force of the Constitution of the Republic”.407 This provision was sanctioned by UNTAET/REG/2001/2 which provided that “[t]he Constituent Assembly shall become the legislature of an independent East Timor, if so provided in the Constitution”. This transformation seems problematic judged by democratic standards, as the legislaturein-waiting defined the scope of its own (future) powers. However, even though Fretilin had clearly won the elections to the Constituent Assembly, they did not have the two-thirds majority required to amend the constitution.408 The state building efforts of UNTAET continue to shape the new political system: apart from Section 165 of the Constitution, which extends the applicability of UNTAET Regulations to the period after independence, the Constitution determines that the judicial system established by the transitional administration shall remain operational until replaced by new East Timorese institutions.409 406 407 408 409 Morrow/ White, see note 16, 38, fn. 155. Section 167(1). See the criticism of Saldanha/ Magno, see note 327, 165. Section 155 of the Constitution. Section 163 (2). Benzing, Case Study – East Timor 367 3. UNMISET and UNOTIL On 20 May 2002, with East Timor’s independence, UNMISET replaced UNTAET.410 As already alluded to in Security Council Resolution 1338,411 Security Council Resolution 1410 establishing the follow-up mission recognised that: “the emerging institutions in East Timor remain fragile and that in the period immediately after independence assistance will be required to ensure sustained momentum in the development and strengthening of East Timor’s infrastructure, public administration, law enforcement and defence capacities”.412 The mission was established for an initial period of 12 months. Its mandate was originally threefold: to provide assistance to core administrative structures critical to the viability and political stability of East Timor; to provide interim law enforcement and public security and to assist in developing the East Timor Police Service (ETPS); and contribute to the maintenance of the new country’s external and internal security. This new mission marked the transition from a “territorial administration” to what could be called a “co-administration” of territories.413 UNMISET was headed by a Special Representative of the SecretaryGeneral and consisted of three components: (a) a civilian component; (b) a civilian police component; and (c) a military component. With a view to giving it a “robust mandate”, UNMISET received a Chapter VII authorisation to “take the necessary actions, for the duration of its mandate, to fulfil its mandate”.414 This authorisation was given without the explicit determination of a threat to the peace in the resolution. The mandate entailed that the Special Representative still had considerable influence and decision-making power with respect to several core administrative functions, e.g. financial and central services; internal systems of the Council of Ministers; the Chief Minister’s office and various other ministries; essential services such as water and sanitation and the judicial system.415 410 411 412 413 414 415 S/RES/1410 (2002) of 17 May 2002. S/RES/1338 (2001) of 31 January 2001, para.11. S/RES/1410, see note 410, preambular para. 6. See de Wet, see note 110, 304. S/RES/1410, see note 410, para. 6. See Doc. S/2002/432, paras 69 and 70; de Wet, see note 107, 312. 368 Max Planck UNYB 9 (2005) UNMISET’s mandate was extended by Security Council Resolution 1543 (2004)416 for another six months, with a view to subsequently extending it for a further and final period of another six months until 20 May 2005. This happened with Security Council Resolution 1573 (2004).417 The latter two resolutions rearranged the missions mandate as follows: (i) support for the public administration and justice system of East Timor and for justice in the area of serious crimes; (ii) support to the development of law enforcement in East Timor; and (iii) support for the security and stability of East Timor. Despite the significant reduction in powers as compared to UNTAET, UNMISET still played a decisive role in East Timor. The feeling of being under colonial “rule” apparently persisted.418 On 20 May 2005, UNMISET’s mandate finally expired.419 As a oneyear follow-on special political mission, the Security Council established UNOTIL, which will remain in Timor-Leste until 20 May 2006.420 Its mandate is to support the development of critical stateinstitutions and the police, as well as to provide training in the observance of democratic governance and human rights. VII. “An Exercise in Adapting Ideals to Painful Realities”:421 Evaluation and Concluding Remarks In East Timor, the United Nations completed the process of decolonisation, a task abandoned by Portugal and interrupted by Indonesia.422 Besides being a case of “delayed decolonisation”, East Timor is unique in terms of premises and shape of United Nations involvement. For this reason, it is rather difficult to compare East Timor with other instances of United Nations administration or involvement in post-conflict reconstruction, for instance in Iraq. There, the role of the United Nations 416 417 418 419 420 421 422 14 May 2004. 16 November 2004. K. Ishizuka, “Peacekeeping in East Timor: The Experience of UNMISET”, International Peacekeeping 10 (2003), 44 et seq. (54). See End of mandate report of the Secretary-General on the United Nations Mission of Support in East Timor, Doc. S/2005/310 of 12 May 2005. S/RES/1599 (2005) of 28 April 2005. Traub, see note 1, 82. Chesterman, see note 11, 239. Benzing, Case Study – East Timor 369 is limited at best,423 and political will to expand United Nations engagement seems modest within the Iraqi government, the Coalition and the United Nations itself, given the security situation. The political premises that UNTAET was starting from were favourable. First, one may say that UNTAET enjoyed unique legitimacy, as it was given the mandate to administer East Timor by the two states that legally or factually could claim title to the territory, by the international community in the form of a Chapter VII resolution, and, last but not least, by the population itself that had voted for “regime change” in East Timor. Second, East Timor was not split by ethnic divides or internal conflict at the time of UN administration. East Timor was free of serious internal conflict, and the United Nations enjoyed broad support from the East Timorese population and leadership.424 No other UN mission in a post-conflict and state-building context could rely on factors so advantageous. On the other hand, the task of reconstruction was daunting: the United Nations was not able to rely on existing local administrative structures; many local records, administrative systems and management structures had been destroyed, disrupted or displaced during the post-referendum violence, so that public administration had to be built from scratch.425 Commentators overwhelmingly regard the work of UNTAET as a success.426 Some critics add that UNTAET indeed was a success, but only for the United Nations, and not for the East Timorese. As a matter of fact, the statistical data is sobering: sixty percent of adults are illiterate. Over 40 per cent of children are moderately or severely underweight. Infant mortality rates are estimated at 8.8 per cent.427 Forty-one 423 424 425 426 427 See Wolfrum, see note 110, 71. Conflict Security & Development Group, King’s College London, see note 22, para. 160. Compare Conflict Security & Development Group, King’s College London, see note 22, para. 163. See only Chesterman, see note 11, 174; Morrow/ White, see note 16, 44; Steele, see note 25, 86. International Development Association, Program Document for a Proposed Grant to the Democratic Republic of Timor-Leste, World Bank Report No: 29077-TP, 29 September 2004, available at: <www-wds. worldbank.org/servlet/WDSContentServer/WDSP/IB/2004/10/07/000090 341_20041007104507/Rendered/PDF/290770TP.pdf> (last visited 1 February 2005), paras 5-6. 370 Max Planck UNYB 9 (2005) per cent of the population live below the poverty line.428 The first UNDP National Human Development Report found that Timor-Leste is officially Asia’s poorest country,429 with a GNI per capita of 430 US$ and a GDP of only 360 million US$ for the year 2003.430 According to World Bank estimates, at the end of 2003, unemployment among urban males was at least 20 per cent, surpassing 40 per cent among those aged between 15 and 24. The economy contracted by about three per cent in 2003.431 As the international presence was further reduced, reconstruction projects were executed at a slower pace than expected, and substantial flood damage to the crops (following a delayed 2002 rainy season) lowered agricultural production. Further economic problems have been created by the downsizing of the United Nations presence in the country. “Dili appeared to be a wholly owned subsidiary of the international development community”.432 East Timor will evidently have to rely on outside help for many years or decades to come. In the light of these facts, do we have to conclude that UNTAET has given birth to a failed state?433 The answer is a clear “no”. East Timor’s economic problems were neither caused by the United Nations nor could they have been solved by it in the short period of time available to it. Academic commentators run the risk of asking too much both of the local population in post-conflict territories, and the United Nations as a “state-builder”. The building of a sustainable institutional infrastructure takes time.434 One must have legitimate doubts whether it is “possible, in a few short years, to found institutions and infuse a set 428 429 430 431 432 433 434 International Development Association, Program Document for a Proposed Grant to the Democratic Republic of Timor-Leste, World Bank Report No: 29077-TP, 29 September 2004, paras 5-6. Steele, see note 25, 83. UNDP, East Timor Human Development Report 2002, 1. Timor-Leste at a glance, available at: <www.worldbank.org/cgi-bin/ sendoff.cgi?page=%2Fdata%2Fcountrydata%2Faag%2Ftmp_aag.pdf>; see also International Monetary Fund, “Democratic Republic of Timor-Leste: Statistical Appendix, IMF Country Report No. 04/320, October 2004, available at <http://www.imf.org/external/pubs/ft/scr/2004/cr04320.pdf> (both documents last visited 15 March 2005). S. Donnan, “Complications follow the painful birth of East Timor: Despite growing stability, the world’s newest country is still facing long-term challenges”, Financial Times of 4 December 2003, 12. Traub, see note 1, 84. See Chopra, see note 55, 999. Compare Conflict Security & Development Group, King’s College London, see note 22, para. 210. Benzing, Case Study – East Timor 371 of values and habits that normally accrete over generations”.435 Moreover, even though, as an international lawyer, it is intriguing to look at the legal framework governing missions such as UNTAET, and to discuss rules governing the implementation of its mandate, at the end of the day, one has to humbly admit that carrying out the functions expected from UNTAET was extremely difficult and sometimes did not allow for paying respect to the lofty ideals and rules even if the goodwill was there. The broad powers granted to UNTAET did not automatically entail the capacity to exercise them.436 Responding to criticism, the Transitional Administrator for both Kosovo and East Timor, the late Sergio Vieira de Mello, thus “criticised the critics”: “In recent years, a small industry has grown up around conferences and academic papers on governance and post-conflict peace building. The lessons of the seminars and papers seem very remote when one actually has to practice governance.”437 This may be true in particular with respect to the observance of human rights by transitional administrations. As Strohmeyer remarks, “it should be clear that in complex emergencies such as ... East Timor the international community must balance the necessity of implementing human rights guarantees against the enormity and multiplicity of challenges facing a mission”.438 While these explanations by insiders are certainly valid, and without attempting to belittle the enormous task that UNTAET was faced with, there are, however, a few principles that may enhance the legitimacy and success of future UN engagement in “state-building” efforts if repeated with the intensity of UNTAET: 1. First, it is essential that the “balancing process” between individual rights and practical exigencies be made transparent. The transitional administration has to state openly which international guarantees it cannot fulfil due to practical constraints in an incontestably exceptional situation. 2. Second, a clear accountability regime has to be installed and to be available and effective to prevent the perception among the local popu- 435 436 437 438 Traub, see note 1, 75. Conflict Security & Development Group, King’s College London, see note 22, para. 291. de Mello, see note 333. Strohmeyer, see note 340, 121. Max Planck UNYB 9 (2005) 372 lation that territorial administration by international actors is a “paternalistic, imperialist” undertaking.439 3. Third, the same transparency and openness needs to be applied with respect to the question of involvement of the local population: on the one hand, the mechanisms with which such participation is to be effected need to be made clear; on the other hand, the time-table for a gradual handing over of power must equally be explained. 4. Finally, it is crucial that the international commitment is well planned, and, also in financial terms, strong and sustainable. In the context of East Timor, this may mean that the UN’s business will not be finished after UNMISET’s mandate finally ends in May 2005. The Secretary-General, in his latest progress report of 18 February 2005, emphasised that a “premature termination of the tasks … may jeopardize [the truly remarkable] achievements as well as the significant investment that the international community has made in Timor-Leste since 1999”. Building a state takes time: Roma non fu fatta in un giorno. 439 See Wilde, see note 153, 460. Afghanistan: Building a State to Keep the Peace Ebrahim Afsah/ Alexandra Hilal Guhr I. Introduction 1. Common Misperceptions a. Did the Conflict destroy the State? b. Was it an Ethnic Conflict? c. Was the UN too Dominant? 2. Unusual Characteristics a. UN not in the Driver’s Seat b. Not a Settlement, but a Process c. No Transitional Justice Component d. Simultaneous Arming and (half-hearted) Demobilization II. Background 1. History of the State 2. Civil Society 3. Political Society III. The Path to the Bonn Agreement 1. Previous UN Involvement 2. Consequences of the “Brahimi Report” 3. Present UN involvement and the Bonn Agreement a. Events Leading to Bonn b. The Negotiations in Bonn c. UNAMA’s Mandate IV. Instruments of the Bonn Process 1. Interim Authority and Emergency Loya Jirga 2. Constitutional Process a. The Drafting Process b. The Constitutional Loya Jirga c. The Constitution 3. Elections a. Presidential Elections b. Parliamentary Elections A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 9, 2005, p. 373-456. © 2005 Koninklijke Brill N.V. Printed in The Netherlands. Max Planck UNYB 9 (2005) 374 V. VI. Further Obstacles to the Reconstruction Process 1. Financial Commitments 2. Security and Narcotics 3. The Afghan Independent Human Rights Commission and Transitional Justice 4. Disarmament, Demobilization and Reintegration (DDR) a. Conceptual Issues b. DDR in the Afghan Context c. International Support for DDR d. Critique of the International Effort Conclusion I. Introduction The American decision to remove the Taliban government from power suddenly opened a window of opportunity for the resolution of the long Afghan conflict.1 The resulting United Nations brokered settlement and the subsequent reconstruction process remained in many respects a sui generis mission. Partly this is due to the peculiar nature of the Afghan conflict, which required a particularly careful, non-intrusive approach. Also of importance is, however, that the peace process has run parallel – and often been subservient – to the ongoing American-led “war on terror”. These two factors, namely Afghan sensibilities and American military necessities, have affected the peace process in numerous ways and required a number of carefully orchestrated compromises. The concessions that have been necessary in this respect have been forcefully decried by both domestic and international non-governmental organizations and the media, focusing in particular on the continued heavy involvement of former warlords in the government, the lack of security, and the international unwillingness to extent robust peace-keeping beyond Kabul.2 While much of this criticism is logically consistent, and 1 2 The period prior to the American intervention is well described in A. Rashid, Taliban: Islam, Oil, and the New Great Game in Central Asia, 2000, Chapter 1. The authorization for an expansion of the ISAF mandate to allow a deployment of ISAF troops outside of Kabul was accorded through S/RES/1510 (2003) of 13 October 2003. Until February 2005 a total of five Provincial Reconstruction Teams (PRTs) had been deployed to cities in the North. An expansion to the West is planned, but until now wide parts of the country are still insecure. Afsah/ Guhr, Case Study – Afghanistan 375 normatively plausible, it does not take into account the existing political and military realities that heavily constrain the limits within which a political settlement can be pursued. The main contribution of the United Nations and its chief representative Brahimi in the Bonn process was the brokering of what can be argued to constitute a consensus of the elite. By including power holders prominently in the process, and by letting them partake in the “spoils of peace”, strong incentives were created against a continuation of factional violence. We do not argue here that the role of the international community and the United Nations has been without reproach. But all criticism must take into account the structure of constraint which severely limits what can realistically be expected.3 We argue in this paper that given the limitations of the historical context and the realities of power and interests – both within the Coalition and the militias – progress could only be achieved if these forces were brought into the process, not by working against the realities on the ground. 1. Common Misperceptions Much commentary about Afghanistan is based on a set of assumptions that on closer examination does not hold up to scrutiny. These assumptions centre on the assessment of the impact of war and domestic conflict on the state and on the characterization of the conflict as an ethnic one. The nature of the internationally brokered settlement process is often also misunderstood and will be addressed further on in this paper. a. Did the Conflict destroy the State? Many reports, especially emanating from the NGO community, begin by restating the destruction of state and society during 23 years of war.4 While this is in itself an accurate description, it is often implied, sometimes explicitly, sometimes implicitly, that the main task is one of re3 4 J.L. Gaddis, “International Relations Theory and the End of the Cold War”, International Security 19 (1992/93), 5 et seq. fn. 142. “Mehr als 20 Jahre Bürgerkrieg haben in Afghanistan nicht nur die Infrastruktur des Landes, sondern auch sämtliche öffentlichen und sozialen Institutionen zerstört,” M. Klinger, Bericht Gutachter Einsatz Afghanistan, GTZ, 2002, 1. 376 Max Planck UNYB 9 (2005) construction of state institutions. More accurate, however, seems the notion that even before the war the Afghan state was exceedingly weak and not properly equipped for the administration of the country and the delivery of services to its citizens. Using cautious diplomatic language, this point is stressed in a recent UN study with regard to the justice sector and applies mutatis mutandis to the entire Afghan state structure: “It is frequently stated that the formal justice system has been ‘totally destroyed’ by the 23 years of civil unrest and war. This is an imprecise perception/assessment of the situation. It does not consider the role and functioning of the existing mechanisms and practices; imprecise because the formal legal tradition and mechanisms are much less consolidated than usually presumed.”5 International assistance to the Afghan transitional process must therefore not “merely” aim at reconstructing governmental structures, but must start from the assumption that effective governance in the modern sense has never existed, even before the war. This not only makes the task a more formidable one, but also mandates a much more careful interaction with dispersed power holders. It is thus not the reconstruction of formerly existing state structures that we are faced with, but in some sense the initial act of creation of the political community that transcends pre-modern ethnic, linguistic, religious and geographic loyalties. In this respect it is useful to distinguish between the external and internal aspects of statehood. While Afghanistan’s external sovereignty has been largely6 uncontroversial since 1919, internal state sovereignty 5 6 M. Toscano-Rivalta/ A. Drury, Securing Afghanistan’s Future – Considerations on Criteria and Actions for Strengthening the Justice System – Proposal for a Long-term Strategic Framework, UNAMA, 2004, 4, emphasis added. A Council of Ministers in accordance with article 100 of the 1990 Afghan Constitution (http://www.afghangovernment.com/Constitution1990.htm), led by the former President Burhunuddin Rabbani, was internationally recognized as the sole representative of the Afghan State. For details see R. Wolfrum/ C. Philipp, “The Status of the Taliban: Their Obligations and Rights under International Law”, Max Planck UNYB 6 (2002), 559 et seq. (567, 576, 577). The wisdom of the decision of the majority of the international community to withhold recognition from the de facto Taliban government, which referred to itself as the Islamic Emirate of Afghanistan and which held 90 per cent of the territory, has been much debated, especially given the fact that Rabbani did not even control the remaining ten per cent Afsah/ Guhr, Case Study – Afghanistan 377 is an altogether different matter. At no point in Afghan history did the state provide the only, or even the main forum for the resolution of disputes. Even before armed conflict broke out in 1978 the standardization and formalization of the Afghan state had barely begun. Starting from Weber’s influential definition of statehood as: “a compulsory political association with continuous organisation whose administrative staff successfully upholds a claim to the monopoly of the legitimate use of force in enforcement of its orders in a given territorial unit”,7 it becomes debatable whether it is possible to say that an effective Afghan state has ever existed.8 The process set in motion by the fall of the Taliban regime concerns thus not merely the reconstruction of a formerly intact institutional structure, but the far more ambitious project of the initial negotiation of the original social contract that establishes the state as the locus of sovereignty. As a caveat, institutional weakness should not be misunderstood as the complete absence of institutions. Many international commentators and experts charged with “capacity building” and “institutional development”9 start from the assumption that all state structures had been “totally destroyed.” They thus conclude that ready-made administra- 7 8 9 fully. It must be noted, however, that the failure of a new government of a state – in this case the Taliban – to secure recognition from other subjects of international law does not destroy the international personality of that state, nor does it absolve the respective state from observing treaty obligations entered into previously; see Sir R. Jennings/ Sir A. Watts (eds), Oppenheim’s International Law, Vol. I, Peace, Introduction and Part 1, 9th edition, 1992, § 44. See also preambular para. 7 Bonn Agreement. M. Weber, The Theory of Social and Economic Organisation, 1947, 154; see also F. Fukuyama, State-Building: Governance and World Order in the 21st Century, 2004, 6; D. Chagnollaud, Droit constitutionnel contemporain, 1999, 6. On the link between statehood and the state’s ability to use violence to enforce its decisions see also D. Held, Political Theory and the Modern State: Essays on State, Power and Democracy, 1989; A. Giddens, The Nation State and Violence, 1985. Both terms have been used so indiscriminately that they have come to symbolize the vacuity of much UN terminology. While such technical terms describing a highly complex reality can make sense as abbreviations in an informed discourse among those who are aware of the complexities involved, they can quickly become meaningless placebos if they adorn project documents as substitutes for real action. Max Planck UNYB 9 (2005) 378 tive blueprints from abroad can be imported and grafted onto the remnants of the existing state structures. When dealing with international assistance given towards the reconstruction of the state, we thus need to have realistic expectations about what can be achieved, given the endemic weakness the state traditionally had. Nevertheless, any such assistance needs to take into account the local conditions and organizational habits that even these weak institutions were able to form. b. Was it an Ethnic Conflict? Afghanistan is a perplexingly diverse country with a large number of different ethnic groups separated by ethnicity, religion, language, and geography. There are at least four major ethnic groups (Pashtus, Tajiks, Hazaras, Usbeks), and countless smaller ones; in addition to the two major languages (Pashtun and Dari, a form of Persian) a bewildering array of other languages are spoken (Turkic languages, Arabic, Nuristani, Dravidian, etc.).10 While almost the entire population is Muslim,11 there are important divisions between the Sunni and Shi’ite branches.12 But while “a large number of Afghans feel bound by strong norms of reciprocity linking them to their ethnic fellows”,13 and while in the absence of strong competing claims on their loyalties on behalf of the 10 11 12 13 E. Orywal (ed.), Die ethnischen Gruppen Afghanistans: Fallstudien zu Gruppenidentitäten und Intergruppenbeziehungen, 1986; P. Snoy, “Die ethnischen Gruppen”, in: P. Bucherer-Dietschi/ C. Jentsch (eds), Afghanistan Ländermonografie, 1986, 121 et seq. There are small Buddhist, Hindu and Sikh minorities. The small erstwhile Jewish minority has left the country in its entirety and there are no significant numbers of Christians, the only church in the country being the one attached to the Italian embassy. On the Shi’ite minority see inter alia K. Ferdinand, “Preliminary Notes on Hazara Culture – The Danish Scientific Mission to Afghanistan 1953-55”, Historisk-filosofiske Meddelelser Udgivet af det Kongelige Danske Videnskabernes Selskab 37 (1959); H. Emadi, “The Hazaras and their Role in the Process of Political Transformation of Afghanistan”, Central Asian Survey 16 (1997), 363 et seq.; S.A. Mousavi, The Hazaras of Afghanistan – An Historical, Cultural, Economic and Political Study, 1998. C. Johnson, et al., Afghanistan’s Political and Constitutional Development, Overseas Development Institute, 2003, <www.odi.org.uk/hpg/ evaluations.html>. Afsah/ Guhr, Case Study – Afghanistan 379 state14 these ethnic links have remained dominant, the characterization of the Afghan conflict as an ethnic one is misleading. To be sure, the main armed formations throughout the conflicts were organized along ethnic lines,15 including some of the Soviet-backed communist government (General Dustum’s Usbek militia for instance). Once the attempt to form a successor government in 1992 failed, these ethnically organized armed formations quickly turned onto each other. But to infer from the existence of ethnic diversity and the observed fact of inter-ethnic violence that the conflict has been caused by ethnicity is a misleading oversimplification.16 More accurately, we can observe that a conflict that has political and social roots gradually became “ethnified” where ethnic identities were successfully used to mobilize material and manpower resources for a conflict waged for essentially opportunistic reasons.17 Alternative explanatory hypotheses focus on the destabilizing impact of the breakdown of security structures that suddenly pit individuals and groups against each other in a situation of anarchy.18 Without overarching authority, and in a situation of great uncertainty about each 14 15 16 17 18 A.D. Smith, The Ethnic Origins of Nations, 1986; R. Hardin, One for All: The Logic of Group Conflict, 1995. C. Schetter, “Ethnizität als Ressource der Kriegsführung”, in: C. Schetter/ A. Wieland-Karimi (eds), Afghanistan in Geschichte und Gegenwart, 1999, 91 et seq. C. Schetter, Ethnizität und ethnische Konflikte in Afghanistan, 2003. C. Schetter, “Der Afghanistankrieg – Die Ethnisierung eines Konflikts”, Internationales Asienforum 33 (2002), 15 et seq.; A. Wimmer, “Territoriale Schließung und die Politisierung des Ethnischen”, in: C. Honegger (ed.), Grenzenlose Gesellschaft? – Verhandlungen des 29. Kongresses der Deutschen Gesellschaft für Soziologie, 16. Kongresses der Österreichischen Gesellschaft für Soziologie und des 11. Kongresses der Schweizerischen Gesellschaft für Soziologie, 1999, 1200 et seq. UNDP, Afghanistan National Human Development Report 2004, Security with a Human Face: Challenges and Responsibilities, 2004, 100-102. The term “anarchy” is used here as a technical term as defined in international relations theory. For a classical realist use of the term see K.A. Oye, “Explaining Cooperation Under Anarchy: Hypotheses and Strategies”, World Politics 38 (1985); for a critical discussion see B. Buzan, et al., The Logic of Anarchy: Neorealism to Structural Realism, 1993; for a revisionist account see A. Wendt, “Anarchy is What States Make of It: The Social Construction of Power Politics”, International Organization 46 (1992), 391 et seq. 380 Max Planck UNYB 9 (2005) others’ intentions and readily available means to inflict serious damage, individuals and ethnic groups find themselves in a condition of pronounced security dilemma.19 In this interpretation the main motivation is not ethnic rivalries as such, but primarily defensive motives. A related, but distinct hypothesis points out the proxy nature of many ethnic conflicts, i.e. its instrumentalization by external actors for self-interested reasons.20 A mutually reinforcing dynamic is created with the local war economy which provides tremendous personal opportunities for local military leaders who become strong agents in the perpetuation of the conflict, holding essentially their client communities hostage to their personal ambition and who have strong incentives to further inflame the conflict.21 An initially political conflict is thus turned into an ethnic one, not least due to external influence.22 The involvement of external interests, both strategic and economic23, further sustains the conflict. A close reading of the intricate and highly fluid constellations of the Afghan conflict, characterized by countless and perpetually shifting alliances, counter-alliances and betrayals,24 suggests that the root cause of the conflict cannot be seen in immutable ethnic rivalries but in personal 19 20 21 22 23 24 E. Melander, Anarchy Within: The Security Dilemma between Ethnic Groups in Emerging Anarchy, Department of Peace and Conflict Research Uppsala University, 1999. S.J. Kaufman, “An ‘International’ Theory of Inter-Ethnic War”, Review of International Studies 22 (1996), 22 et seq. S.J. Kaufman, “Spiraling to Ethnic War: Elites, Masses, and Moscow in Moldova’s Civil War”, International Security 21 (1996), 108 et seq. Schetter, see note 17, United Nations Office on Drugs and Crime (UNODC), The Opium Economy in Afghanistan: An International Problem, 2003. While international involvement has been an important contributing factor to the conflict, we must be circumspect about some of the more outlandish claims emanating from the NGO community, this holds particularly true with regard to alleged Western interests in Central Asian hydrocarbon production. For an insightful discussion of the topic see Rashid, see note 1, although his conclusions about the inherent importance of Afghan access routes remain questionable. For a highly accusatory and ill-informed discussion of the same issue see G. Long/ D. Westcott, The United States’s Oil Interests and the Reconstruction of Afghanistan, 2003, . For an account of the conflict see Rashid, see note 1; B.R. Rubin, The Fragmentation of Afghanistan, 1995. Afsah/ Guhr, Case Study – Afghanistan 381 ambition25 and outside meddling. The opportunities offered by the war economy26 for some largely explain the incentive structures that drive civil wars, despite the unmitigated disaster that it spells for the many.27 We must not forget in this respect that in a situation of endemic conflict, many of the most dynamic and entrepreneurial sections of society will find no other outlet for their personal ambition than to avail themselves of the opportunities offered by the war economy.28 c. Was the UN too Dominant? A too intrusive international effort would have been perceived as foreign domination, and could thus have triggered the kind of violent resistance that Afghans have shown throughout their history towards external interference. The respect shown by the international community towards the Afghan political process is in part a result of that history. It is therefore arguable that the United Nations had little choice but to stay consciously out of the limelight, whatever the conceptual lessons learned from previous missions. Whether it was the sui generis character of Afghanistan or a deliberate strategic choice with wider implications for future missions, the 25 26 27 28 R.J.P.J. de Figueiredo/ B.R. Weingast, “The Rationality of Fear: Political Opportunism and Ethnic Conflict”, in: J. Snyder/ R. Jervis (eds), Civil War and the Security Dilemma, 1997. B.R. Rubin, “The Political Economy of War and Peace in Afghanistan”, World Development 28 (2000), 1789 et seq.; J. Goodhand, “From War Economy to Peace Economy? Reconstruction and State Building in Afghanistan”, Journal of International Affairs 58 (2004), 155 et seq.; UNDP Human Development Report 2004, see note 17, 103-106. For a theoretical treatment of the role of economic incentives in sustaining and prolonging conflict see J. Hirshleifer, The Dark Side of the Force: Economic Foundations of Conflict Theory, 2001.Olson’s theory of collective action is likewise useful in this respect to account for the paradoxical fact that the “multitudes with an interest in peace” cannot prevail because “they have no lobby to match those of the ‘special interests’ that may on occasion have an interest in war.” M. Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, 1971, 165. A. Guistozzi, Respectable Warlords? The Transition from War of All against All to Peace Competition in Afghanistan, London School of Economics, Crisis States Research Seminar, 2003, who categorizes the various “career paths” and personal goals of some prominent commanders; quoted in Goodhand, see note 26, fn. 18. Max Planck UNYB 9 (2005) 382 United Nations moved here from the more invasive approach that had characterized the previous missions and adopted a much more inclusive, consensual approach reminiscent of its missions of the early 1990s.29 In the on-going UN mission in Afghanistan, emphasis has been placed on ensuring Afghan ownership of the reconstruction process, rather than imposing an international administration. 2. Unusual Characteristics Compared to other peace-building and peace-keeping efforts by the international community, the Afghan peace process is characterized by a number of factors that are unusual in this context: the limited role played by the United Nations; the lack of a transitional justice component in the “Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions”30 of 5 December 2001, generally referred to as the Bonn Agreement; as well as the disabling factor of the ongoing military campaign against terrorist groups. In this context certain non-official groups continue to receive arms and military training, while simultaneously the political process previews a disarmament and reintegration of the militias. a. UN not in the Driver’s Seat The United Nations has limited itself to playing a supporting role in Afghanistan, leaving visible leadership to Afghans. This so-called “light footprint” approach has been hailed as a major conceptual revolution in United Nation thinking, developed out of the perceived failures in Kosovo, East Timor and elsewhere.31 But whatever the conceptual les- 29 30 31 Such as UN operations in Namibia, El Salvador and Cambodia. For a cursory description and characterization of some of the UN post-conflict reconstruction operations since the 1990s, see J.S. Kreilkamp, “U.N. Postconflict Reconstruction”, N.Y.U. J. Int’l L. & Pol. 35 (2002 – 2003), 619 and seq. Doc. S/2001/1154, <http://www.unhchr.ch/huricane/huricane.nsf/(Symbol) /MISC.01.5.En?OpenDocument>. S. Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan, International Peace Academy, 2002, <www.ipacademy.org/PDF_Reports/JUSTICE_UNDER_INTL.pdf>; T. Afsah/ Guhr, Case Study – Afghanistan 383 sons learned from previous UN missions, the peculiar Afghan situation, in particular the resistance to foreign domination that is borne out by this nation’s history, made any more intrusive international role potentially highly problematic. While the chronology and precise nature of the UN involvement in Afghanistan will be discussed under III., it shall suffice to note at this point that despite the seemingly prominent position, its role has been consciously relatively limited. Partly this is due to the perceived necessity of avoiding the impression of undue foreign interference, i.e. ensuring “Afghan ownership”. The other reason has been the obvious importance of the American-led Coalition warfare that has run parallel to the peace building efforts of the United Nations. The normative and legal rules, as well as the strategic vision pursued by the United Nations and the United States, respectively, are by and large compatible, but nevertheless quite distinct. Their cooperation thus had to be managed “as porcupines do their love-making: very cautiously”.32 The fact that their respective mandates are quite separate often blinds us to the relative discrepancy in terms of resources and manpower which is heavily tilted towards the United States. b. Not a Settlement, but a Process All post-conflict reconstruction scenarios involve a process in the sense that gradually institutions, norms, and physical infrastructure are being created. In all such situations armed groups that have been locked into violence for a very long time need to overcome their past ethnic, ideological, class and personal differences and learn to resolve their disputes without recourse to violence. There are many explanations why social relations unravel to the point that civil war breaks out, but whatever the origin of the violence, what is required at the start of the reconstruction 32 Pippard, East Timor and the Challenge of UN Transitional Administration, United Nations Association for Great Britain and Northern Ireland, <http://www.una-uk.org/UN&C/etimor.html> which has a good discussion of the impact the 2000 Brahimi Report has had on the approach taken in Afghanistan; S. Chesterman, “Walking Softly in Afghanistan: The Future of UN State-Building”, Survival 44 (2002), 37 et seq.; L. Brahimi, Peacekeeping: Five Years after the Report, Statement delivered on 1 March 2005 at the Institute of European Affairs, Dublin, <www.iiea.com/images/ managed/events_attachments/Brahimi010305.pdf>. C. Bell, “Why an Expanded NATO must Include Russia”, in: T.G. Carpenter (ed.), The Future of NATO, 1995, 39. 384 Max Planck UNYB 9 (2005) phase is the willingness to establish what Deutsch has termed a “security community”, i.e. an arrangement “in which there is real assurance that the members of that community will not fight each other physically but will settle their disputes in some other way”.33 Obviously, it will require time to move from a situation of high levels of inter-communal violence towards a real assurance that despite continuing conflicts over divergent interests, the conflicts will be resolved through the political process and violence will not be used. Building the necessary levels of trust between the former enemies out of necessity requires time, and in this respect every post-conflict situation is a process and not merely a settlement. What distinguishes the Afghan situation from other post-conflict scenarios, however, is the absence of a formal agreement over the substantive content of the solution to the conflict: “Unlike some postwar agreements, the Bonn Accords set out a process, rather than a detailed settlement of major political issues.”34 The “classic” case of conflict resolution involves the signing of a peace treaty, provisional constitution, power sharing arrangement, or the like. The substantive content of such an agreement is “normally” negotiated over a period of months, if not years, and often comes at a point in time when all parties to the conflict have come to the conclusion that there is not much to be gained from continuing the armed struggle.35 Previous mediating efforts in Afghanistan, such as the Peshawar Accords, had actually followed that model of resolving the substantive issues and distributing power as part of the formal settlement. The situation in November 2001, however, was very different. Here the parties were brought together to negotiate a framework under extreme time pressure, while an external power had come in as an active and partisan participant in the conflict. Thus the Bonn negotiations resulted in very 33 34 35 K. Deutsch et al., Political Community and the North Atlantic Area, 1957, 5, emphasis added. B.R. Rubin, Afghanistan’s New Constitution, 2004, 2. Luttwark makes this point in his controversial essay when he cautions against international interventions into ongoing domestic conflicts, arguing that sometimes the underlying conflict either needs to be resolved militarily, or that the parties must “grow tired” of war. Otherwise any international intervention just provides breathing space in which to recuperate and rearm, and thus prolongs the conflict. See E.N. Luttwak, “Give War a Chance”, Foreign Aff. 4 (1999), 36 et seq. Afsah/ Guhr, Case Study – Afghanistan 385 few substantive issues being settled, but rather concentrated on laying down the time-table and the overall framework in which to proceed.36 Given the combined pressures of time and a rapidly changing military reality, the group assembled in Bonn was of necessity less than completely representative of the various political and ethnic factions throughout Afghan society. However, Special Representative Brahimi repeatedly stressed “that no one would remember how unrepresentative the meeting had been if the participants managed to fashion a process that would lead to a legitimate and representative government”.37 By leaving most substantive issues to be decided by the two subsequent, and much more inclusive, Loya Jirgas as well as laying down clear temporal limits on the authority conferred and stressing its transitional nature, the Bonn process managed to allay fears that it was meant to ossify a transitory power constellation. c. No Transitional Justice Component The term “transitional justice” refers to the processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.38 In the majority of post-conflict scenarios, the belligerent parties are brought together in a political process in the course of which they are able to agree to some form of legitimate process to lay to rest the allegations about past misconduct leveled against each other.39 In the Bonn process, however, of the four groups represented, only one, the Northern Alliance (Islamic United Front for the Salvation of Afghanistan), actually had armed forces on the ground, and these were engaged in combat not against the other participants but against the Taliban who were not represented at the negotiations. The quid pro quo that fuels the necessary dynamic of concessions and counter-concessions was thus absent in Bonn. 36 37 38 39 B.R. Rubin, “Transitional justice and human rights in Afghanistan – First Anthony Hyman Memorial Lecture at the School of Oriental and African Studies London”, International Affairs 79 (2003), 567 et seq. (570). Rubin, see note 34, 4. Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Doc. S/2004/616 of 23 August 2004, para. 4. For example, see the case studies on Sierra Leone, East Timor and BosniaHerzegovina in this Volume. 386 Max Planck UNYB 9 (2005) Furthermore, through their previous actions the Taliban had gradually placed themselves “beyond the pale”. At least since the Taliban’s refusal to comply with S/RES/1333 after the 11 September attacks, the international community no longer saw them as a legitimate partner in any negotiations. The Northern Alliance that was now allied with the Coalition in fighting them, was thus under no political obligation to agree to an investigation into its own past behavior. Suggestions at Bonn about requiring the screening of new recruits into the national army and police to prevent candidates who had been guilty of war crimes came to no fruition because there was no judicial or similar process to determine who was ineligible, and, more importantly, because the ongoing policy of the Americans of arming Northern Alliance units to fight Taliban and al Qaeda created de facto forces without any such requirements. Similar suggestions about prohibiting a general amnesty for war crimes, or to prohibit the membership of commanders guilty of war crimes in the government were met with furious resistance. Similar resistance was very much in evidence during the Emergency Loya Jirga. The lack of relevant regulations to deal with past abuses reflects the fact that some of the Afghan leaders40 who signed the Bonn Agreement are widely believed to have been responsible for war crimes and thus had no interest in including transitional justice regulations in the Bonn Agreement. This shortcoming was already anticipated by Brahimi in his report to the Security Council: “The provisional institutions whose creation is suggested will not include every one who should be there and it may include some whose credentials many in Afghanistan may have doubts about. Please remember that what is hopefully to be achieved is the elusive peace … the broad based interim administration is the beginning, not the end of the road”.41 From this realist point of view, involving potential spoilers in the process rather than having them fighting against it may be well worth the price of compromising principles, at least for a transitional period.42 40 41 42 ICG, Asia Report No. 45, Afghanistan: Judicial Reform and Transitional Justice of 28 January 2003, 17. L. Brahimi, “Briefing to the Security Council, Transcript from 13 November 2001”, <http://www.un.org/News/dh/latest/afghan/brahimi-scbriefing.htm>, emphasis in the original. Karzai’s reluctant removal of some local commanders, most publicized that of Esmail Khan from his fiefdom in Herat, has been criticized as endanger- Afsah/ Guhr, Case Study – Afghanistan 387 In the meantime, the Afghanistan Independent Human Rights Commission (AIHRC) has been charged with the responsibility of finding a way to account for the past. It conducted a national consultation in order to determine how a process of transitional justice could be structured in Afghanistan, and has made some proposals in accordance with the results of the survey. This will be discussed in more detail further on. d. Simultaneous Arming and (half-hearted) Demobilization Recovering from decades of armed conflict and managing the transition to a peaceful and stable post-war order is contingent on the successful disarmament and demobilization of armed groups and their reintegration into civilian life and the political process. The importance of disarmament, demobilization and reintegration (the so called DDR, as it is commonly abbreviated) is widely acknowledged,43 and it has become a “standard response to situations of post conflict”.44 But despite the inherent importance of the concept and the vital role it is understood to play in the transition towards peace,45 the Bonn Agreement does not explicitly mention DDR but merely stipulates that: “upon the transfer of power, all mujahedin, Afghan armed forces and armed groups in the country shall come under the command 43 44 45 ing the Bonn process. While this removal was motivated primarily by economic considerations (transferal of customs duties to the central government), the dangers outlined apply mutatis mutandis for such action motivated by considerations of transitional justice. See C. Schetter, “Ausweitung der Kampfzone”, Financial Times Deutschland of 17 September 2004, 38. A. Özerdem, “DDR of former combatants in Afghanistan”, Third World Quarterly 23 (2002), 961 and seq.; E. Gotab, Challenges of Peace Operations: Into the 21st Century: Concluding Report 1997-2002, 2002. G. Wood, “Disarmament, Demobilisation and Reintegration: A Marriage of D’s and R’s?”, The Networker, March 2005, <http://www.bond. org.uk/networker/march05/ddr.htm>. Report of the Secretary-General, Prevention of Armed Conflict, Doc. A/55/985-S/2001/574 of 7 June 2001, para. 23; Report of the SecretaryGeneral, The Role of United Nations Peacekeeping in Disarmament, Demobilization and Reintegration, Doc. S-2000/101 of 11 February 2000, para. 1; United Nations, Report of the Panel on United Nations Peace Operations, Doc. A/55/305-S/2000/809 of 21 August 2000, paras 7, 54. Max Planck UNYB 9 (2005) 388 and control of the Interim Authority, and be reorganized according to the requirements of the new Afghan security and armed forces”.46 These groups referred to in the Bonn Agreement have been reorganized and formally recognized as the Afghan Military Forces (AMF).47 Many armed factions, however, are not classified as AMF units, and therefore do not fall under the DDR process. Furthermore, the American-led Coalition has relied extensively on local militias in the execution of its campaign against the Taliban and al Qaeda. These allied militias are generally not classified as AMF units, and have only very strained links to the central government and receive substantial military and financial resources from the Coalition. The paradox of the UN and the central government trying to disband some factions, while the Coalition is actively arming others creates obvious problems for the transition process, which are described in somewhat greater detail later in this article. II. Background Afghanistan belongs to the handful non-European states that have never been colonized.48 While its exposed location between the British and Russian Empires invited external interference, and while the definite borders of the country were largely the result of the interests of these two imperial powers, it must be stressed that at no point was any meaningful external presence in the country established. The often used characterization of Afghanistan as a “buffer state” is not inaccurate in the sense that it separated the two empires,49 but the implication that the country as such is a colonial construct is a misleading one. With the possible exception of the Pashtunistan question, ethnic diversity in Afghanistan and the existence of trans-border ethnic kinship networks cannot be seen as the result of colonial meddling – as has been the case in many African countries. At any rate the conflict must not be 46 47 48 49 Section V (1) of the Bonn Agreement. ICG, Asia Briefing No. 35, Afghanistan: Getting Disarmament Back on Track of 23 February 2005, 2. The others are Japan, Iran, Thailand, Ethiopia, Mongolia, Nepal, Bhutan and China; some include Liberia. This is most clearly reflected in the unusual shape of the country, in particular the north-eastern “finger” of the Wakhan Corridor. Afsah/ Guhr, Case Study – Afghanistan 389 seen simply as the expression of ethnic rivalry that could have been avoided if the political borders had corresponded better to ethnic realities. It is not easily conceivable how, given the extreme ethnic diversity and the widely interspersed settlement patterns, political and administrative units could be devised with ethnic representation in mind. 1. History of the State Afghanistan looks back onto a very old and eventful history, having fallen at various times under Persian, Greek, Mongol, and Indian influence.50 The political organization of the territory was very much dominated by its geographic location.51 The first Afghan state was created in 1747 when Ahmad Khan Abdali proclaimed himself king. By 1707 there had already been a rebellion against Persian rule during which Mirwais Hotaki seized Kandahar and had himself proclaimed king by a Loya Jirga52 summoned for this occasion.53 This attempt proved, however, short-lived, and it was only the internal collapse of the Persian Empire that created the opening for the establishment of an Afghan state. Because no historical precedent for Afghan statehood existed, recourse was had in both 1707 and in 1747 to the traditional Pashtun instrument of a Loya Jirga to legitimize rule.54 This state was founded on the consent of Pashtun tribal leaders who were brought to- 50 51 52 53 54 For a short overview see G. Moltmann, “Die Verfassungsentwicklung Afghanistans von 1901 bis 1986”, Jahrbuch des Öffentlichen Rechts 35 (1986), 509 et seq. (516-519). For a more extensive treatment refer to O. Caroe, The Pathans, 1962; L. Dupree, Afghanistan, 1973; M. Klimburg, Afghanistan, 1966, Chapters I-III; K. Jäckel, “5000 Jahre Geschichte”, in: W. Kraus (ed.), Afghanistan, 1975; G. Macmunn, Afghanistan – From Darius to Amanullah, 1929. Rubin, see note 24, 19, which provides a very succinct and insightful historical placement. The Pashtu term Loya Jirga (grand/great assembly/council) refers to a century-old forum, in which tribal elders came together to consult and decide on conflicts, social reforms, or other important issues. R. Bachardoust, Afghanistan – Droit constitutionnel, histoire, régimes politiques et relations diplomatiques depuis 1747, 2003, 18 et seq. For more details see S.Q. Reshtia, “La Loya Jerga”, Central Asian Survey VII (1988), 6 et seq. 390 Max Planck UNYB 9 (2005) gether in the Loya Jirga, and the very term “Afghan” remained for a long time synonymous for “Pashtun”.55 This first state was decidedly pre-modern in the sense that it was built upon the existing tribal loyalties and laws, mimicking on the “national” level the traditional power structure of personified leadership complemented by a council of elders that existed on all levels of Pashtun tribal organization.56 This foundation of the Afghan state on Pashtun tribal tradition is interesting for two reasons. First, the absence of any explicit religious reference is noteworthy:57 “En effet, aucun mollah n’y était présent en tant que tel. Aucune règle religieuse n’a été retenue pour encadrer le processus de désignation du roi. La Loya Jirga ne donna aucun titre religieux à l’heureux élu; il n’est appelé ni émir ni calife ni commandeur des croyants, mais tout simplement roi”.58 Secondly, tribal tradition saw the jirga as the embodiment of the “sovereign” power of the community, being the carrier of both “legislative”59 and adjudicating powers. The leader on each hierarchical level, the khan, was seen as the “executive power of the community subject to the will of the collectivity and the customary law of the tribe”60 to be elected from among the dominant family. The system has not been pe- 55 56 57 58 59 60 “Die Paschtunen sind die eigentlichen Afghanen.” Moltmann, see note 50. Likewise, Bachardoust, see note 53, 23: “Le mot Afghan était à l’époque synonyme de Pashtoun.” See also C. Schetter, “Die Territorialisierung nationaler und ethnischer Vorstellungen in Afghanistan”, Orient 44 (2003), 75 et seq. Moltmann, see note 50, 515. This tradition was not lost on the Taliban who not only changed the name of the country to the Islamic Emirate of Afghanistan, but also chose the title of amir al-mu’minin (Commander of the Faithful), a historic title referring to the caliph, when an assembly of 1,200 ulema met in Qandahar from 20 March to 4 April 1996 to elect Mullah Muhammad Omad as the new head of state. Bachardoust, see note 53, 19. The use of such quintessentially modern terms in the context of a premodern society is problematic. A society dominated by an ancient tribal customary law such as the Pashtunwali is obviously not easily inclined towards the concept of making new laws. Still the jirgas could impose new binding rules, which is the essence of the legislative power. Moltmann, see note 50, 515. Afsah/ Guhr, Case Study – Afghanistan 391 culiar to Afghanistan, and it has indeed been likened to pre-modern European political systems.61 Whether this system can be seen as proto-democratic, is problematic. It does, however, show the relatively weak claim to power exercised by the king, who from the very beginning left the tribes largely to their own devices in the regulation of their internal affairs. While it is certainly possible to see the Loya Jirga as a loose form of parliamentary representation,62 the main difference lies in the fact that the Afghan state was never able to effectively impose taxation – with or without participation – onto its subjects, remaining exceedingly weak throughout its existence. Without restating the dynastic history of the 19th century that has been covered elsewhere,63 it shall suffice to point out that the main characteristics of the Afghan state was its inability, indeed unwillingness, to impose any form of national organization or identity beyond keeping the royal family nominally in power. The absence of a nation corresponding to the state is not peculiar to Afghanistan, but has been a dominant characteristic particularly of African post-colonial states.64 In Afghanistan, however, even the attempt to foster national unity was not undertaken as the state throughout its existence depended on received income in the form of external economic and military aid and was thus not dependent on tapping national sources of power. What Rubin says about the reign of King Abdul Rahman Khan (reigned 1881-1901) is quite symptomatic of most Afghan governments throughout its modern history: “Abdul Rahman Khan used these coercive resources to establish the basic state structures that endured until the fall of Najibullah in 1992: a Pashtun ruler using external resources to reign over an ethnically heterogeneous society while manipulating that social segmentation to weaken society’s resistance”.65 61 62 63 64 65 Schwager for instance compares it to the constitution of the Germanic tribes, see J. Schwager, Entwicklung Afghanistans als Staat, 1932, 22 et seq. Moltmann, see note 50, 520. See the references in note 50; Rubin, see note 24, 45 et seq. provides an excellent account of the process of state formation. The uti possidetis decision of the Pan-African Congress of Addis-Ababa of 26 May 1963 accepted the impossibility of replacing the artificial boundaries drawn at the Berlin Conference of 1885, instead charging the African states with the task of fostering national communities beyond ethnic lines. Rubin, see note 24, 19. 392 Max Planck UNYB 9 (2005) Given the difficult terrain, most Afghans had traditionally led very localized lives, both physically and in terms of political loyalty. The conflict that erupted in 1978 and the mass exodus that ensued brought Afghans into contact with other Afghans from different parts of the country and ethnic background, often for the first time in living memory. Prior to 1978 loyalties and identities were mainly based on kinship ties which had only a very tenuous link to territorial units. The dual impact of the foreign invasion and the subsequent extreme political fragmentation among the mujahideen forces, which brought with it the very real threat of dismemberment of Afghanistan, changed the perception of the national territory among ordinary Afghans.66 Prior to 1978 being a citizen of the Afghan state meant little to an ethnically and geographically divided population.67 It was only through the experience of exile and resistance that the idea of the nation as a “communauté de destin”68 gained ground. While ethnic divisions persist, most Afghans today strongly identify with the Afghan nation. Surely, in the absence of other meaningful political units, distributional struggles over power and resources continue to be expressed in ethnic terms but being part of the nation as such is no longer controversial for all ethnic groups. What successive Afghan governments failed to undertake has thus been achieved by default: the forging of a national identity, albeit at the cost of a long and painful conflict. What remains to be done, however, is the other major omission of all previous Afghan governments; the creation of an efficient state: “The fundamental need in Afghanistan is not nation building, as is so often said. … Afghanistan is a nation, though disputes over how to govern and share power in that nation are acute. What Afghanistan needs above all is assistance in building a state”.69 In Huntington’s classic institutional definition, political order is maintained through stable institutions as intermediaries that moderate the opposing political claims made by different interest groups, socialize behavior and allow for negotiated outcomes. They are characterized by their degree of stability, the importance attached to them by actors 66 67 68 69 Schetter, see note 16. Rubin, see note 24, 22. Bachardoust, see note 53, 21; see also the discussion of the Nietzschean concept of “brauchbare Vergangenheit” in the article by R. Utz, in this Volume. B.R. Rubin, Statement to Implementation Group, 2002, <www.af/ resources/itsa/ig-october/B-Rubin-IGoct02.pdf>. Afsah/ Guhr, Case Study – Afghanistan 393 and thus their ability to bring about a particular type of behavior: “Institutions are stable, valued, recurring patterns of behaviour. Organisations and procedures vary in their degree of institutionalization.”70 In Afghanistan formal institutions barely existed; for most of its history political power was based merely on unstable, frequently changing personal loyalties71 that, even with respect to the royal family, never achieved the degree of institutionalization that, according to Huntington, can produce order. In Afghanistan very few of such recurrent, stable and valued institutions existed, the most important probably being the Loya Jirga which has its origin in Pashtun tribal culture as shown above.72 The state as such, however, always remained extremely weak and did not figure prominently in the life of ordinary Afghans whose primary loyalties belonged to smaller, non-territorial groupings such as family, clan, and tribe. The state and its territorial space carried only a very abstract, often negative connotation because it only made itself felt through the sporadic attempt to impose levies and custom duties, military and labor service.73 As mentioned earlier, the weakness of the state must not be interpreted as the absence of law as an ordering system among Afghans. The expectation of empirical validity is generally backed by the threat of sovereign sanction, but Weber conceded that the “coercive apparatus ... whose special task it is ... to apply specially provided means of coercion (legal coercion) for the purpose of norm enforcement” need not necessarily be the state, but norms can also be efficiently enforced through psychological as well as physical means of coercion, operating either directly or indirectly against the participants in the system.74 This defini- 70 71 72 73 74 S.P. Huntington, Political Order in Changing Societies, 1968, 12. Schetter, see note 55; C. Noelle, State and Tribe in Nineteenth Century Afghanistan: The Reign of Amir Dost Muhammad Khan (1826-1863), 1997; C. Noelle, “Es ist ein weiter Weg nach Bukhara. Raum-Zeit Koordinaten in der Sichtweise afghanischer Chroniken”, in: R. Haag-Higuchi/ C. Szyska (eds.), Erzählter Raum in Literaturen der islamischen Welt, 2001, 131 et seq. (76). Reshtia, see note 54. Schetter, see note 55, 80. Ibid. 394 Max Planck UNYB 9 (2005) tion is broader than the orthodox positivist account75 which depends solely on the threat of sovereign executive sanction to explain efficacy. In Afghanistan most norm enforcement relied on informal mechanism not controlled by the state, such as the norms of the traditional tribal law of the Pashtuns (Pashtunwali) that were enforced though tribal councils (jirgas) at the different hierarchical levels of tribal organization. The modern state, however, that was gradually being built never achieved a particularly strong grasp over people’s lives. More importantly, it’s use by a very small but ideologically highly motivated group to push through radical modernization and social change quickly mobilized massive resistance. The struggle that ensued between Communist modernizers and a reluctant population quickly led to the complete demise of those state structures that had hitherto been built. Rubin sums up the history of Afghan resistance as such: “The underlying story was about the breakdown, indeed the fragmentation, of social control and social power in Afghanistan. The painstakingly constructed state shattered when a Soviet-supported Communist elite tried to use that fragile apparatus as an instrument of massive, coercive social change”.76 The particular tragedy of Afghanistan lies in the fact that in the course of the resistance not only was the state thoroughly destroyed, but also, due to the way external aid was channeled to various, mostly religiously defined groups, as well as the way the Soviet Union attempted to win the counterinsurgency war, traditional sources of social cohesion were likewise seriously affected. Towards the end of the Soviet occupation, the country was left with no legitimate government, no national leadership, a secular intelligenzia that had been very small to begin with, but had been so diminished by successive purges as to be no longer existent, multiple competing armed factions in virtually every locality of the country, and with massive population displacements. 75 76 In the Anglo-Saxon legal tradition this is most often identified with Austin’s “command theory” which states that real law needs an enforcing sovereign, and that, therefore, international law cannot be regarded as law at all, but merely as non-binding morality, J. Austin, The Province of Jurisprudence Determined, 1832 (208). Hart in his restatement of legal positivism reaffirms essentially the same position in slightly more accommodating terms by defining a full legal system as consisting of “primary” and “secondary” rules, the latter being those that determine how the former are created, see H.L.A. Hart, The Concept of Law, 1994 [1961]. Rubin, see note 24, preface page x (sic). Afsah/ Guhr, Case Study – Afghanistan 395 Thus, not only was the weak state destroyed, but also the traditional society was heavily affected. 2. Civil Society As in virtually every other post-conflict scenario there has been a heavy emphasis on strengthening “civil society” in Afghanistan.77 The term defies easy classification, but there seems to be some consensus that it comprises those social relations based on the association of people independently of the state and the family, thus being composed of voluntary associations that allow “citizens to protect themselves from the state and also influence it through associative life”.78 From its inception in the Scottish enlightenment to dissident movements in Central and Eastern Europe and beyond, use of the concept has always started from the assumption of a strong state against which protection and means of influence were sought.79 Civil society is thus something that is defined in opposition to the state.80 However, the problem of transition from an authoritarian police state to a liberal democratic polity81 radically differs from the creation of functioning state structures in the first place. In the latter the challenge lies in strengthening the state as such, because only the state can act as a guarantee against domestic anarchy. 77 78 79 80 81 M. Ottaway/ T. Carothers (eds), Funding Virtue: Civil Society Aid and Democracy Promotion, 2000. G. Wylie, Dysfunctional Societies are not Civil Societies ... Or are They?, Conference of Civil Society, University of Belfast, 2004, 2. See inter alia J. Keane, Civil Society: Old Images, New Visions, 1998; R. Hefner (ed.), Democratic Civility: The History and Cross-Cultural Possibility of a Modern Political Ideal, 1998; J. Cohen/ A. Arato, Civil Society and Political Theory, 1992; Z. Pelczynski, The State and Civil Society: Studies in Hegel’s Political Philosophy, 1984. A. Arato, “Civil Society versus the State”, Telos 47 (1981), 23 et seq.; M. Bernhard, “Civil Society and Democratic Transition in East Central Europe”, Political Science Quarterly 108 (1993), 307 et seq. M. Kaldor/ I. Vejvoda, Democratisation in Central and East European Countries, 1997; J.J. Linz/ A. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, 1996. Max Planck UNYB 9 (2005) 396 As we have argued above, formal instruments of governance have always remained embryonic in an exceedingly weak Afghan state. But weak as it might have been, the state at the very least provided the framework in which traditional forms of societal organization could function. The ensuing conflict destroyed both the state and much of the informal arrangements that had ordered life for ordinary Afghans. The problem here is not an overly oppressive, intrusive state but its very absence. 3. Political Society Inflationary use of the term “civil society” has, unfortunately, deprived it of much of its explanatory significance. In the sense conceived by Gramsci, civil society is but the complement to “political society”, and it is the original creation of the latter that we are faced with in Afghanistan today, namely the creation of effective coercive instruments to empower the state to take and enforce decisions.82 The naïve insistence on giving support to “civil society” forgets that without order institutions cannot function, disregarding for the moment that in the Afghan context the very concept of liberal institutions appears problematic. This point is echoed by Goodhand: 82 A. Gramsci, Selections from the Prison Notebooks, 1971, 352. Important in this respect is his concept of cultural or intellectual hegemony as a vital complement to material coercive power. Any system of power is based on the existence of coercive power. Much more effective, however, is exercising power through the consent of the ruled, which is achieved through cultural hegemony that effectively precludes the very conceptualizing of alternative power structures, thereby producing legitimacy and deference: “To the extent that this prevailing consciousness is internalised by the population it becomes part what is generally called “common sense” so that the philosophy, culture and morality of the ruling elite comes to appear as the natural order of things,” B. Burke, “Antonio Gramsci and informal education”, The Encyclopaedia of Informal Education, 2004, <http://www. infed.org/thinkers/et-gram.htm>. The dual dynamic of coercion and consent implicit in all power relations is reflected in Gramsci’s division between political society which represents the coercive institutions such as army, police, judiciary, bureaucracy, etc. and civil society which comprises non-coercive public institutions such as churches, schools, trade unions, political parties, cultural associations, etc. In this rather subtle theory of power the task of civil society is to further the dominant normative vision that supports the status quo distribution of material power. Afsah/ Guhr, Case Study – Afghanistan 397 “there is no getting away from the fact that state building involves the deployment of raw power and not simply the creation of liberal institutions. … A strong state is required in order to accelerate economic development and poverty reduction, consolidate peace, reduce the scope for extreme brutality and exploitation of social relations and withstand the intrusive interest of regional powers”.83 Why states fail, or more accurately in the case of Afghanistan, fail to form is a highly complex issue outside the scope of the present paper.84 In Afghanistan we need to acknowledge the fact that the creation of state institutions did not always keep pace with the claims to sovereignty extended by the central ruler. III. The Path to the Bonn Agreement 1. Previous UN Involvement The UN had been active in Afghanistan even before the conflict broke out. It was engaged in normal development assistance work. In response to the Soviet intervention, the Security Council met in 1980 to consider an appropriate response but a draft resolution faltered due to the Soviet veto and the issue was referred to the General Assembly which debated it in an Emergency Special Session on Afghanistan which lasted for five days, from 10-14 January 1980, 85 resulting in the first of a series of annual resolutions.86 In addition, from 1985 on the 83 84 85 86 Goodhand, see note 26, 168, 167. For a preliminary discussion see, inter alia, R.I. Rotberg (ed.), When States Fail: Causes and Consequences, 2004; R.I. Rotberg (ed.), State Failure and State Weakness in a Time of Terror, 2003; W.I. Zartman (ed.), Collapsed States: The Disintegration and Restoration of Legitimate Authority, 1995. S/RES/462 (1980) of 9 January 1980, calling on the General Assembly to examine certain questions contained in Doc. S/Agenda/2185. Doc. ES-6/2 of 14 January 1980, General Assembly – Sixth Emergency Special Session “The situation in Afghanistan and its implications for international peace and security.”. The following resolutions carry the same title. A complete list of the annual resolutions can be found at <http://www. unama-afg.org/docs/_UN%20Docs/_sc/resolutions.htm >. 398 Max Planck UNYB 9 (2005) General Assembly began to look into the human rights situation87 resulting in a series of annual resolutions on human rights.88 Throughout the period of the conflict humanitarian assistance was being provided by the respective UN agencies,89 harmonized by the Coordinator for UN Humanitarian and Economic Assistance Programs as Operation Salam.90 The political changes initiated by Michail Gorbachev made a resolution of the conflict possible; the UN offered its good offices resulting in a series of agreements concluded between Afghanistan (i.e. the Communist Najibullah government), Pakistan, the USSR and the United States in Geneva, which provided the legal basis for the withdrawal of foreign troops.91 The Secretary-General thus established, with the authorization of the Security Council,92 the United Nations Good Offices Mission in Afghanistan and Pakistan (UNGOMAP)93 consisting of a military section under the Finnish General Rauli Helminen,94 and a po87 88 89 90 91 92 93 94 The newly appointed Special Rapporteur on Human Rights in Afghanistan delivered his first annual report in 1985. The Austrian jurist Felix Ermacora was Special Rapporteur from 1984 to 1995. A/RES/40/137 of 13 December 1985 entitled “Questions of human rights and fundamental freedoms in Afghanistan”. UNICEF, UNDP, UNHCR, and WFP. Responsibility for the Operation passed in 1991 to Benon Sevan the Personal Representative of the Secretary-General. Agreements on the Settlement of the Situation Relating to Afghanistan, concluded at Geneva on 14 April 1988 under UN auspices, commonly referred to as the “Geneva Agreements”. The format that was agreed upon by the Personal Representative of the Secretary-General, Diego Córdovez with Kabul and Islamabad during talks in April and May 1985 was a series of bilateral agreements on non-interference and non-intervention, a declaration on international guarantees by the USSR and the US, a bilateral agreement on the voluntary return of refugees, an agreement between the USSR and Afghanistan on the withdrawal of troops, and an instrument that would set out the relationship between these bilateral agreements. For a contemporary discussion see R. Klass, “Afghanistan: The Accords”, Foreign Aff. 66 (1988), 25 et seq. S/RES/622 (1988) of 31 October 1988. The diplomatic history, the legal basis and the mandate for UNGOMAP is well presented in United Nations, Repertory of Practice of United Nations Organs, Supplement No. 7, 1989, article 98, paras 364-372. Further information can be found on the website of the Finnish Defence Forces (in Finnish): <www.mil.fi/rauhanturvaaja/historia/ex_ungomap_ osgap.dsp>. Afsah/ Guhr, Case Study – Afghanistan 399 litical section under Benon Sevan. The mission was mandated to oversee the withdrawal of foreign troops and authorized to receive complaints from both sides about alleged improper implementation of the Agreements. With the lapse of UNGOMAP’s mandate, one year after the Soviet withdrawal, the Office of the Secretary-General in Afghanistan and Pakistan (OSGAP)95 was established on 15 March 1990, which mirrored the dual set-up of a military and a political component. The latter was headed by Benon Sevan as the Personal Representative of the Secretary-General. OSGAP drafted a transition plan once the United States and the Soviet Union suspended military aid to their respective factions and declared their support for a UN-sponsored transfer of power to an interim government. The transition plan elaborated by Sevan, however, “broke down with the disintegration of the state that the interim government was supposed to rule.”96 As fighting intensified in 1992 the mujahideen closed in on Kabul and brought down the Najibullah government.97 The end of the Communist government also meant the end of the unifying force of a common enemy that had hitherto unified the diverse and factitious mujahideen alliance, which was unable to agree on a successor government and quickly turned against each other, heavily supported by external powers that pursued regional interests through proxies. There had been an agreement signed in Peshawar on 24 April 1992 by all mujahideen forces98 – with the notable exception of Gulbuddin Hekmatyar – to form a government under Sigbatullah Mojaddedi as head of a Transitional Council for two months that would 95 96 97 98 Report of the Secretary-General, The Situation in Afghanistan and its Implications for International Peace and Security, Doc. A/45/635-S/21879 of 17 October 1990, para. 21. Rubin, see note 24, 269. For an overview of various prior UN initiatives see M.K. Ma’aroof, United Nations and Afghanistan Crisis, 1990. Najibullah sought refuge in the UN compound where he remained until 1996. Despite repeated pleas by the Secretary-General he was not assured safe passage. After the Taliban took control of Kabul, they abducted Najibullah and his brother on 26 September 1996 and subsequently executed them. The action was strongly condemned by the General-Assembly in Resolution 51/108, para. 10 of 12 December 1996, and the Security Council Statement Doc. S/PRST/1996/40. For a discussion of the legal and constitutional implications of the Peshawar Accord see Bachardoust, see note 53, 235 et seq. 400 Max Planck UNYB 9 (2005) then be replaced by a Leadership Council under Burhannudin Rabbani for four months. In July 1992 the Islamic State of Afghanistan was proclaimed as the successor to the Democratic Republic of Afghanistan, with Rabbani as its president. The General Assembly welcomed the establishment of the state, seeing it as “provid[ing] a new opportunity for the reconstruction of the country,”99 underlined “the importance of the rehabilitation and reconstruction of Afghanistan”,100 whose development had suffered during the previous fourteen years of war, and “affirmed the urgent need to initiate international action to assist Afghanistan in restoring basic services and in rebuilding the country”.101 According to the Peshawar Accord Rabbani was supposed to relinquish power in October, but he refused to do so. Hekmatyar who had stayed outside the Accord had never accepted the legitimacy of the new government, and by that time heavy fighting had erupted between his forces and those loyal to the government, commanded by Ahmad Shah Massoud, the minister of defense of the Islamic State. Throughout the Soviet occupation the larger cities, and especially Kabul, had remained under firm control of the government and had thus been spared from destruction. The fighting that broke out between the various mujahideen factions, on the contrary, centered on the control over the cities, resulting in heavy damage, especially in Kabul. In the subsequent fighting the Peshawar Accord unraveled, and the mujahideen factions turned against each other in a bewildering succession of alliances, counter-alliances, betrayals, and severe atrocities committed by all against all. There were two peace accords102 signed in 1993, on 7 March in Islamabad and on 18 May in Jalalabad, between Rabbani and eight other faction leaders (though, again, not with Hekmatyar) which established an interim government for eighteen months, in which period the drafting of a new constitution through a constituent assembly and the preparation of an electoral process was to take place. Unfortunately these attempts were not successful. 99 100 101 102 A/RES/47/119 of 18 December 1992, preambular para. 1. Ibid., preambular para. 5. Ibid., preambular para. 7. The so called Islamabad Accords were signed with the support of Pakistan, Saudi Arabia and Iran. The UN was not involved in the process. For details, see Rubin, note 24, 271-274. Afsah/ Guhr, Case Study – Afghanistan 401 Under the influence of the continued heavy fighting the General Assembly requested the Secretary-General in December 1993 to establish the United Nations Special Mission in Afghanistan (UNSMA)103 with a more active mandate of “facilitating national rapprochement and reconstruction,” beyond merely monitoring events and reporting them.104 The former minister of foreign affairs of Tunisia, Mahmoud Mestiri, was thus appointed on 12 February 1994 as Special Envoy of the Secretary-General and headed UNSMA. He was succeeded in May 1996 by Dr. Norbert Holl, who resigned effectively on 29 December 1997. His deputy James Ngobi took over as acting head until the appointment of Lakhdar Brahimi in July 1998. Given the unwillingness of the local factions to come to an agreement, and given further the proxy nature of much of the fighting with regional powers each pursuing their own political and ideological ends through their economic and military support of competing mujahideen groups, it should come as no surprise that UNSMA remained largely ineffective. From its inception in 1994 until the appointment of Brahimi “UNSMA is widely regarded as making little headway, a situation that was not helped by ineffectual earlier SRSG [Special Representative of the Secretary-General] appointments”.105 One of the key changes instigated by Brahimi was to recognize formally that the Afghan conflict was aggravated due to foreign interference,106 leading to the creation of the so-called Six-plus-Two Group107 comprised of the neighboring 103 104 105 106 107 A/RES/48/208 of 21 December 1993, para. 4. “Invited the Secretary-General to continue to monitor the overall situation in Afghanistan and make available his good offices as required, and to report to the General Assembly”, para. 5, emphasis added. M. Duffield, et al., Review of the Strategic Framework, AREU, 2001, 31; likewise: B.R. Rubin, et al., Afghanistan: Reconstruction and Peacebuilding in a Regional Framework, Centre for Peacebuilding, Swiss Peace Foundation, 2001; M. Fielden/ J. Goodhand, Peace-Making in the New World Disorder: A Study of the Afghan Conflict and Attempts to Resolve it, IDPM Manchester/INTRAC Oxford, 2001, “Deploring the fact that despite repeated pleas by the Security Council, the General Assembly and the Secretary-General to halt foreign interference in Afghanistan, including the involvement of foreign military personnel and the supply of arms and ammunition to all parties in the conflict, such interference continues unabated”, S/RES/1193 (1998) of 28 August 1998, preambular para. 7. “Calls upon all States neighbouring Afghanistan and other States with influence in the country to intensify their efforts under the aegis of the 402 Max Planck UNYB 9 (2005) countries (Pakistan, Iran, Uzbekistan, Tajikistan, Turkmenistan and China) plus Russia and the United States. The explicit mandate of UNSMA and of the SRSG has been throughout to bring all Afghan factions together to negotiate a settlement. However, as the language of the respective Security Council resolutions indicates, it became increasingly clear that the Taliban were not willing to negotiate in good faith,108 and that active military support by regional powers, especially Pakistan, continued unabated, despite repeated Security Council resolutions to the contrary.109 Furthermore, at least after the bombings of the US embassies in Nairobi and Dar-es-Salaam in 1998, the possible involvement of al Qaeda became more apparent.110 The Security Council condemned the 108 109 110 United Nations to bring the parties to a negotiated settlement;” ibid., para. 4. “Deploring the fact that despite the readiness of the United Front of Afghanistan [the Northern Alliance] to conclude a durable ceasefire and to enter into a political dialogue with the Taliban, fighting continues on both sides, […]”, S/RES/1214 (1998) of 8 December 1998 preambular para. 3; “Reiterates its very strong support and appreciation for the continuing efforts of the Special Envoy of the Secretary-General to secure the full implementation of its resolutions and demands that all parties, in particular the Taliban, cooperate in good faith with these efforts;” ibid., The Taliban failed to respond either to the requests to take actions against preparatory activities by terrorists (S/RES/1214 (1998) of 8 December 1998; S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000; S/RES/1378 (2001) of 14 November 2001), or to the requests to turn over Osama bin Laden (S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000). S/RES/1214 (1998) of 8 December 1998, para. 10; S/RES/1193 (1998) of 28 August 1998, preambular para. 7, para. 3; S/RES/1076 of 22 October 1996, paras. 3, 4. It is interesting to note that on 20 August 1998 US President Bill Clinton ordered “Operation Infinite Reach”, i.e. retaliatory cruise missile strikes against alleged terrorist bases in Afghanistan, as well as a pharmaceutical plant in Sudan alleged to have been involved in the manufacture of chemical weapons. The latter allegations could not be substantiated by later onsite investigations. Usama bin Laden and Muhammad Atef were indicted for their involvement in the embassy bombings on 4 November 1998 in Manhattan Federal Court. The indictment included the alleged claim that there had been cooperation between al-Qaeda and the government of Iraq. See <http://usinfo.state.gov/is/Archive_Index/Bin_Laden_Atef_Indicted_ in_U.S._Federal_Court_for_African_Bombings.html>. Afsah/ Guhr, Case Study – Afghanistan 403 attacks and called upon Member States to fully cooperate with Kenyan, Tanzanian and US authorities to bring the perpetrators to justice without, however, explicitly mentioning Afghanistan or the Taliban.111 With mounting evidence of al Qaeda involvement, the Security Council adopted a tougher stance and imposed sanctions on the Taliban government for “continu[ing] to provide safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operation”.112 In many respects this constituted the crossing of the Rubicon for the efforts of the UN in Afghanistan, because it had become apparent now that the efforts of coming to a negotiated settlement with the Taliban had not only remained ineffective, as already indicated in Resolution 1214 (1998), but that furthermore the international community had finally identified the Taliban as part of the problem, and no longer a possible component of the solution. Coinciding with this tougher line taken by the Security Council,113 the Secretary-General and his Special Representative agreed that under the given circumstances and given the lack of progress towards a negotiated settlement his further involvement would serve little purpose.114 Although not stated explicitly, this decision was partly motivated by the continued strong military interference of the neighboring countries, especially Pakistan’s supply of military advisors, arms, and manpower to the Taliban which made them more intransigent than ever.115 Despite 111 112 113 114 115 S/RES/1189 (1998) of 13 August 1998, para. 3. S/RES/1267 (1999) of 15 October 1999. S/RES/1333 (2000) of 19 December 2000 which reiterated the demand to cooperate with the political process led by the SRSG, to hand over bin Laden, and in a thinly veiled reference to Pakistan and Saudi Arabia, to withhold military support and to scale back diplomatic contacts. The tone was further sharpened through S/RES/1363 (2001) of 30 July 2001 which established the so-called Monitoring Group and the Sanctions Enforcement Support Team to implement the sanctions imposed through S/RES/1267 (1999) of 15 October 1999 and S/RES/1333 (2000) of 19 December 2000. “[M]y Special Envoy and I have reached the conclusion that given the lack of progress achieved so far, his activities should be “frozen” until such time as circumstances change to justify his renewed intervention.” Annual Report of the Secretary-General on Afghanistan, Doc. A/54/536-S/1999/1145, Sec. VIII of 16 November 1999. Duffield, et al., see note 105, 31. 404 Max Planck UNYB 9 (2005) Brahimi’s resignation, the mandate of UNSMA was upgraded. While it had, since its inception, been formulated in the following relatively general terms, namely “to mediate an end to the conflict and to facilitate the implementation of a comprehensive peaceful settlement”116, the Secretary-General now stated that it was to “assume the primary role in conducting United Nations peacemaking activities in Afghanistan. It is my intention to appoint a substantive Head of the Mission at the Assistant Secretary-General level”.117 The General Assembly endorsed these recommendations of upgrading UNSMA and to progressively move the mission from Islamabad to Kabul and to increase its presence in the neighboring countries.118 Francesc Vendrell was appointed on 12 January 2000 as the new Personal Representative and Head of UNSMA,119 while Brahimi served as Under-Secretary for Special Assignments, chairing the independent panel convened by Secretary-General Annan on 7 March 2000 to review the UN preventive and peacemaking efforts. This panel delivered its report on 17 August 2000,120 and much of the approach taken by UNAMA later on draws on the lessons suggested in this report, in particular the attempt to coordinate all UN efforts, i.e. both military peacekeeping, civilian police aspects, political affairs, humanitarian assistance, as well as physical and institutional reconstruction provided by many different UN agencies and organs into a coherent and integrated structure. 2. Consequences of the “Brahimi Report” One of the findings of the Brahimi report that was subsequently implemented in the approach taken by the UN with regard to Afghanistan after September 11, was the special emphasis on a robust peace-keeping force able to defend itself and its mandate. Previously the UN had often sent blue helmets into situations where “the parties to the conflict were not seriously committed to ending the confrontation. United Nations 116 117 118 119 120 A/RES/51/195 of 17 December 1996. Doc. A/54/536-S/1999/1145, Sec. VIII, emphasis added. A/RES/54/189 A of 17 December 1999. Doc. A/54/706-S/2000/20 of 14 January 2000. Report of the Panel on United Nations Peace Operations, Doc. A/55/305S/2000/809, commonly referred to as “Brahimi Report”, <www.un.org/ peace/reports/peace_operations/>. Afsah/ Guhr, Case Study – Afghanistan 405 operations thus did not deploy into post-conflict situations but tried to create them.”121 The conceptual distinction thus had to be made between peace-keepers and peace builders; where there was no peace to be kept, a robust force with a strong mandate was required to enforce it. The report furthermore accepted that it was unlikely that such troops would be forthcoming under UN auspices. The politicized nature of UN troop deployment made even minor tactical decisions unacceptably slow. Classical UN peace-keeping so far had relied on the troop contributions of a relatively small number of countries. Peaceenforcement, however, required larger military capabilities that these nations were not able to muster. The report advocated the concept of “subcontracting” peace-enforcement to interested national or regional contingents, which would remain under national command without being subordinate to a Commander-in-Chief appointed by the SecretaryGeneral. In his report to the Security Council on 13 November 2001 Brahimi laid out his strategic vision for the UN’s role in Afghanistan and remarked on the issue of security provision: “An armed UN peacekeeping force is not recommended. The Secretary-General would require several months to obtain from Member States sufficient numbers of troops to pose a credible military deterrent, and to subsequently deploy them. Furthermore, UN peacekeepers have proven successful when deployed to implement an existing political settlement among willing parties – not to serve as a substitute for one”.122 The other noteworthy aspect that found its way from the report into implementation in Afghanistan was the close operational and strategic coordination through an Integrated Mission Task Force (IMTF) at headquarters and through pooling available funds and various donor activities on the ground through one channel (trust funds and UNAMA) that could provide the necessary strategic vision and coordination. 121 122 Ibid., Executive Summary. Brahimi, see note 41. Max Planck UNYB 9 (2005) 406 3. Present UN involvement and the Bonn Agreement a. Events Leading to Bonn The terrorist attacks of September 11 had changed the situation on the ground dramatically. The attacks were condemned by both the General Assembly123 and the Security Council,124 and the involvement of al Qaeda quickly became apparent.125 US President Bush thus delivered on 20 September 2001 an ultimatum to the Taliban regime to hand over the al Qaeda leaders, and verifiably close down the alleged terrorist camps.126 Few believed that, given their ideological stance as well as their dependency on al Qaeda for financial, logistic, and military support, the Taliban were in a position to accept the terms offered. On 6 October 2001 President Bush informed Congress that the demands had not been met and that military action would commence the next day. The military campaign was supported by a number of countries and essentially used the Northern Alliance as the ground forces of the Coalition.127 It was apparent that once the military campaign had 123 124 125 126 127 A/RES/56/1 of 12 September 2001. S/RES/1368 (2001) of 12 September 2001. The short and curt statement made on 19 September 2001 by the President of the Security Council, Jean-David Levitte (France) is highly indicative in this regard: “Today there is one, and only one, message the Security Council has for the Taliban: implement United Nations Security Council resolutions, in particular resolution 1333, immediately and unconditionally.” <http://www.un.org.pk/latest-dev/hq-pre-010918.htm>. Address to a joint session of Congress on 20 September 2001, <http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html>. On the question of its legality only exemplary: R. Wolfrum, “The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?” Max Planck UNYB 7 (2003), 1 et seq.; M. Reisman, “In Defense of World Public Order”, AJIL 95 (2001), 833 et seq.; T. Franck, “Terrorism and the Right to Self Defense”, AJIL 95 (2001), 840 et seq.; C. Tomuschat, “Der 11. September 2001 und seine rechtlichen Folgen”, EuGRZ 28 (2001), 535 et seq.; E.P.J. Myjer / N.D. White, “The Twin Towers Attack: An Unlimited Right to Self-Defence?”, Journal of Conflict and Security Law 7 (2002), 5 et seq.; T. Bruha, “Gewaltverbot und humanitäres Völkerrecht nach dem 11. September 2001”, Archiv des Völkerrechts 40 (2002), 383 et seq.; S.D. Murphy, “Terrorism and the Concept of “Armed Attack” in Article 51 of the U.N. Charter”, Harv. Int’l L. J. 43 (2002), 41 et seq.; D. Abramowitz, “The President, the Congress, and the Afsah/ Guhr, Case Study – Afghanistan 407 succeeded, a political solution had to be found whose legitimacy went beyond what the United States could muster on its own. In anticipation of the military campaign, whose success was never seriously questioned, the Secretary-General re-appointed Brahimi as his Special Representative on 3 October 2001 and entrusted him with the overall responsibility for the humanitarian, human rights, and political endeavors of the UN in Afghanistan; the former head of UNSMA, Francesc Vendrell became his deputy. On his appointment Brahimi immediately contacted the members of the Six-plus-Two Group, especially Iran and Pakistan, and canvassed their support for the settlement process towards the creation of a broad-based, multi-ethnic Afghan government, and the central role of the UN in this process.128 In his presentation of this approach to the Security Council the following day, he built upon his consultations with the Six-plus-Two and outlined in essence the roadmap followed in Bonn.129 One thing that became apparent during these consultations as well as during his presentation to the Security Council was the urgent need for speed in order to remain on top of the rapidly changing military situation. As the Northern Alliance rapidly expanded its control and entered Kabul on the very day of his presentation, it became urgent to avoid a fait accompli on the ground and to use the unprecedented window of opportunity offered by the consensus between all major backers of the four main Afghan groups. The key points outlined by Brahimi that were to guide the negotiations in Bonn were: - only a legitimate Afghan government representing all the people could gather sufficient resolve and legitimacy to confront the hold international terrorist groups had over the country; - the recognition of the special role, and the legitimate interests of Iran and Pakistan, as well as the ties that exist between them and certain Afghan groups; 128 129 Use of Force: Legal and Political Considerations in Authorizing Use of Force Against Terrorism”, Harv. Int’l L. J. 43 (2002), 71 et seq.; M. Krajewski, “Selbstverteidigung gegen bewaffnete Angriffe nicht-staatlicher Organisationen – Der 11. September 2001 und seine Folgen”, AVR 40 (2002), 183 et seq. Declaration on the Situation in Afghanistan by the Foreign Ministers and other senior representatives of the “Six plus Two” on 12 November 2001, <www.un.org.pk/latest-dev/hq-press-011112.htm>. Brahimi, see note 41. 408 Max Planck UNYB 9 (2005) - the commitment by all parties involved, especially these two countries, towards a political solution that would preserve the unity and territorial integrity of Afghanistan; - consensus between the neighbors, only without undue interference would the Afghans be able to arrive at a durable solution; - the recognition that a stable Afghanistan is in the regional interest, in particular in the national interest of Iran and Pakistan, especially concerning drug production; - the need for a broad-based, multi-ethnic, politically balanced, freely chosen government enjoying both domestic and international legitimacy; - pivotal role of the UN in convening the negotiations and mediating between the parties, as well as in the implementation; - undesirability to impose an external solution on the Afghans; - need for the sustained long-term engagement of the international community in providing the necessary resources, politically and financially; - given the rapidly changing military realities, a continuation of the shuttle diplomacy was unfeasible, and the four main groups (Northern Alliance, Rome Group (around the former King), Cyprus Group (Iranian diaspora), and Peshawar Group (Pakistani diaspora) should convene as soon as humanly possible at a convenient venue; - these existing groups and processes would commence the negotiations, and would later be supplemented by additional representatives to ensure broad participation, but the initial lack of representativeness should not detract from the ability to agree on a framework; - to create the institutions of good governance, the aim was to formulate clear and fair rules of the game and adherence to those rules, to be sustainable, Afghans themselves needed to be engaged in their creation, with particular recourse to be had to returning diaspora Afghans; this being preferable and more legitimate than a transitional administration run by the UN130 or another constellation of foreigners; 130 For an insightful, succinct, and sympathetic account of UN administrations in East Timor, post-Dayton Bosnia-Herzegovina, Eastern Slavonia, and Kosovo, see R. Caplan, A New Trusteeship? The International Administration of War-torn Territories, 2002. Afsah/ Guhr, Case Study – Afghanistan 409 - the deployment of a robust security force, in particular for Kabul, with preference to a multinational, non-UN force; - Kabul was to be demilitarized and should not be controlled by any one faction; - closely integrated UN mission implementation, with clear lines of authority and responsibility among the donors and within the UN system; - all actors were to accept the principle that Afghans are in charge and must have ownership of the process; - the institutions to be agreed upon were to be provisional and would, of necessity, not include every one who should have been considered, as well as including some whose credentials were questionable; in the interest of peace and considering that this was but the beginning of a process not the end point of a settlement, these shortcomings were to be accepted.131 The Taliban withdrew from Kabul on the day Brahimi presented his approach to the Security Council. Thus, Deputy SRSG Vendrell was dispatched immediately to Kabul, and the next day, on 14 November 2001, the Security Council endorsed the approach suggested by Brahimi in resolution 1378,132 expressing their “strong support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government, both of which: - should be broad based, multi-ethnic and fully representative of all the Afghan people and committed to peace with Afghanistan’s neighbors, - should respect the human rights of all Afghan people, regardless of gender, ethnicity or religion, - should respect Afghanistan’s international obligations, including by cooperating fully in international efforts to combat terrorism and illicit drug trafficking within and from Afghanistan, and - should facilitate the urgent delivery of humanitarian assistance and the orderly return of refugees and internally displaced persons, when the situation permits”;133 Furthermore, the Member States were called upon to support such a new government and administration, to provide the necessary emer131 132 133 Brahimi, see note 41. S/RES/1378 (2001) of 14 November 2001. Ibid., para. 1. Max Planck UNYB 9 (2005) 410 gency relief and long-term assistance for the reconstruction process, and to support efforts to ensure the safety and security of areas of Afghanistan no longer under Taliban control.134 b. The Negotiations in Bonn What is remarkable, particularly in light of the decades of failed attempts at international mediation, is the extremely fast pace at which the above outline was put into action. Germany offered to host the talks, which were convened less than two weeks later, on 27 November in a hotel close to Bonn. The talks were conducted under extreme time pressure, partly in order to keep pace with the fact-changing situation on the ground, and partly for quite mundane logistical reasons.135 The delegates represented the following main groups:136 the United Front for the Salvation of Afghanistan, better known as the Northern Alliance,137 a Tajik-dominated military alliance of most of the remaining non-Taliban armed formations whose main geographic stronghold had been the Panshir valley and whose troops had already occupied Kabul (and the major ministries) by the time the negotiations began in Bonn. The other groups were the so-called Cyprus group as a representation of the Dari-speaking diaspora including representatives of the Shia Hazara minority,138 residing mainly in Iran; the Peshawar group representing the Pashtu-speaking diaspora, residing mainly in Pakistan; and the Rome group around the former king, thus representing moderate, mostly Pashtun Afghans throughout the Western diaspora.139 The groups assembled in Bonn were united by little more than their opposition to the Taliban, who were themselves conspicuous by their 134 135 136 137 138 139 Ibid., paras 4 and 5. The hotel was booked for a dentist convention after 5 December, leading to many of the key decisions, such as the selection of the ministers of the interim administration, being negotiated in the final night. See Rubin, see note 36, 570. For a succinct description of the different groups see Rubin, see note 34. The Northern Alliance was led in Bonn by Yunus Qanooni, and reported to Burhanuddin Rabbani, who was formally still the president of the Islamic State of Afghanistan. The Cyprus group was led by Homayun Jareer, the son-in-law of Gulbuddin Hekmatyar, whose opposition had brought the first post-Communist government to fall. A provisional list can be found at <www.un.org.pk/latest-dev/hq-presslist-cont-afg-provlist.htm>. Afsah/ Guhr, Case Study – Afghanistan 411 absence. The fact that the latter were not present, and that there was only one other group with a military presence on the ground, probably made an agreement possible in the first place. Nevertheless, as has already been mentioned, this constellation perhaps also explains why the agreement did not mention any procedure to account for past atrocities. Transitional justice relies on the common acceptance by all sides to a domestic conflict that there is some legitimacy to all claims, albeit pursued through questionable means. Given the political and military realities leading up to the Bonn process, it should come as no surprise that this necessary dynamic was missing at this junction in Afghanistan.140 Apart from the issue of accountability for the past, several other issues were highly contentious during the negotiations, inter alia the question of the demobilization of the mujahideen forces, the establishment of an international security assistance force for Kabul, the role of the former king, as well as the lack of any perceived role for the nominal president Rabbani.141 There were strong divisions between Rabbani and the three moderate Tajik leaders within the Northern Alliance: the designated interior minister Yunus Qanooni,142 minister of defense General Mohammad Fahim, and minister of foreign affairs Abdullah Abdullah. Only concerted interventions by the major Northern Alliance commanders on the ground, Ismail Khan, Abdul Rashid Dustum and the Shiite Hazara leader Karim Khalili, the threat by Qanooni to openly defy him, as well as the personal intervention of the German minister of foreign affairs Fischer and SRSG Brahimi, convinced him to acquiesce. The explicit message conveyed to him by the US special envoy and later US ambassador Zalmay Khalilzad that the US would hold ac140 141 142 President Karzai went on record to say that peace is a necessity and justice a luxury that Afghanistan cannot afford right now. See interview of 10 May 2002 with Lyse Doucet at <http://news.bbc.co.uk/1/hi/talking_ point/1940038.stm>. See Rubin, see note 36, 572; for a good contemporary overview of the relevant actors and their motivations see also P. Bora, “Interim Afghan Government: First Step to Stability”, <www.subcontinent.com/sapra/regional/ regional20011206a.html>. Due to a miscalculation of his, Qanooni later refused the post of interior minister planning to become prime minister under a system similar to the French presidential system. Once it became apparent that the presidential system adopted would resemble the American one without the post of a prime minister, Qanooni had to backtrack and settle for the relatively unimportant post of minister of education. 412 Max Planck UNYB 9 (2005) countable anyone who opposed the peace process, might very well have proved decisive in this respect. The opposition expressed by Gulbuddin Hekmatyar (a Pashtun) who had been sidelined during the negotiations and who had denounced its conclusions as American-imposed and thus illegitimate remained largely ineffective, not least due to the same threat of decisive US action likely to be taken against him. Reflecting the situation on the ground, ethnic Tajiks were strongly represented during the negotiations, and in the interim administration that it previewed. The Pashtun majority was represented by the moderate exiles in the Rome group, as well as through the Peshawar group. The choice of the Kandahari Pashtun tribal leader Hamid Karzai as the head of the interim administration was intended to counter-balance the dominance of the Tajiks. Karzai had been deputy minister of foreign affairs in the first mujahideen government of 1992 under Rabbani, later becoming minister of foreign affairs. His family had had strong links to both Pakistan and the US, and being fluent in English as well as Urdu, yet from an old aristocratic family with close links to the king, he was seen as an ideal man able to appeal to very divergent constituencies, both domestic and international.143 The assumption that an ethnic Pashtun head of the interim administration was required to integrate the Pashtun majority into the peace process and wean them away from their allegiance to the Taliban has proved correct. Despite the initial loud denouncement of his choice by radical Pashtun leaders such as Hekmatyar, Haji Abdul Qadeer,144 Mehmood Khan Achakzai,145 or Gul Agha Sherzai,146 Karzai has subsequently proved able to integrate the Pashtun constituency through his personality, family ties, and skilled political maneuvering. 143 144 145 146 It is interesting to note in this respect that the former king Zaher Shah initially opposed Karzai’s nomination, favoring instead the ethnic Uzbek Abdul Sattar Seerat, a former minister of justice under the king. Governor of the eastern Pashtun province of Nangahar, who walked out of the Bonn negotiations on 1 December complaining about the alleged lack of representation of the Pashtun community. Head of the Pakistan-based Pashunkhwa Milli Awami Party (PMAP), the Pashtun nationalist party. Former governor of Kandahar, whose troops were besieging the Taliban forces in the city at the time of the Bonn negotiations. While he initially objected to the insufficient representation of the Pashtuns he later collaborated with the Karzai government and received the post of governor. He was dismissed and assumed a post in Kabul in August 2003. Afsah/ Guhr, Case Study – Afghanistan 413 The negotiations in Bonn resulted in the signing of the Bonn Agreement147 on 5 December 2001. This Agreement previewed the official transfer of power to an Interim Authority on the 22 December of that year148 and laid down a very ambitious time frame for the further establishment of state institutions. The participants in Bonn were reasonably representative of the ethnic and political diversity of the country, but while certainly acceptable as a provisional measure, it was clear that it could not confer lasting democratic legitimacy. Therefore, it was agreed that an Interim Authority149 would be nominated in Bonn with a mandate for six months,150 during which time an Emergency Loya Jirga would be convened whose broader representation would allow a more legitimate basis for the Transitional Government that it would name.151 The latter would have a mandate for two years152 during which it would re-establish government structures, name a Constitutional Commission to prepare a draft constitution and organize the elections for a Constitutional Loya Jirga to be convened no later than 18 months after the establishment of the Transitional Authority in order to adopt the new constitution.153 Furthermore, the legal framework to be applicable until the adoption of a new constitution was agreed upon.154 147 148 149 150 151 152 153 154 “Agreement on Provisional Arrangements in Afghanistan Pending the Reestablishment of Permanent Government Institutions”, see note 30. Section I (1) Bonn Agreement. Consisting of an Interim Administration (i.e. Cabinet) presided over by a Chairman (Karzai), a Special Independent Commission for the Convention of the Emergency Loya Jirga, and a Supreme Court as well as lower courts. Section I (2) Bonn Agreement. “Noting that these interim arrangements are intended as a first step toward the establishment of a broad-based, gender-sensitive, multi-ethnic and fully representative government, and are not intended to remain in place beyond the specific period of time,” preambular para. 7 Bonn Agreement; Section I (4) Bonn Agreement. Section I (4), (5) Bonn Agreement. Section I (4) Bonn Agreement. Section I (6) Bonn Agreement. Section II (1) Bonn Agreement: “i) The Constitution of 1964, a/ to the extent that its provisions are not inconsistent with those contained in this agreement, and b/ with the exception of those provisions relating to the monarchy and to the executive and legislative bodies provided in the Constitution; and ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions con- 414 Max Planck UNYB 9 (2005) In view of the fact that the security situation in Afghanistan was dismal after the fall of the Taliban, and security can still not be guaranteed155 by the Afghans themselves as there are not sufficient military and police forces loyal to the central authorities, the Bonn Agreement included the request for the deployment of a UN mandated force. In the spirit of the Bonn Agreement, the request for assistance in the maintenance of security for Kabul and its surrounding areas goes hand in hand with the recognition that “the responsibility for providing security and law and order throughout the country resides with the Afghans themselves.”156 Pursuant to this request, the Security Council authorized the establishment of an International Security Assistance Force (ISAF) to assist the Afghan Interim Authority to maintain security in Kabul and the surrounding areas for a period of six months.157 This period has been extended a number of times and after NATO158 took over command of ISAF,159 the international security assistance has been extended beyond Kabul.160 The UN involvement in Afghanistan thus consists of a civil mandate combined with a multi-national military force that is not under UN command. 155 156 157 158 159 160 tained in the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those laws and regulations.” Only exemplary: “Die Armut bleibt, der Terror schwillt an” Frankfurter Rundschau of 2 June 2005; HRW, Afghanistan: Violence Surges of 23 May 2005, <http://www.alertnet.org/thenews/newsdesk/HRW/7c0146cf8972 bdfa0855036f1313505b.htm>. Annex I (1) Bonn Agreement. See S/RES/1386 (2001) of 20 December 2001. For the mandate see S/RES/1386 (2001) of 20 December 2001, S/RES/1413 (2002) of 23 May 2002, S/RES/1444 (2002) of 27 November 2002, S/RES/1510 (2003) of 13 October 2003, S/RES/1563 (2004) of 17 September 2004, for twelve months. Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, Doc. A/57/850-S/2003/754 of 23 July 2003, para. 37. The nations leading ISAF before NATO took over the command were: United Kingdom, Turkey, Germany and the Netherlands. See Reports of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, Doc. A/56/875-S/2002/278 of 18 March 2002, para. 55; Doc. A/56/1000-S/2002/737 of 11 July 2002, para. 26; Doc. A/57/762-S/2003/333 of 18 March 2003, para. 36. Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, Doc. A/59/581-S/2004/925 of 26 November 2004, para. 37. See also note 2. Afsah/ Guhr, Case Study – Afghanistan 415 The Bonn Agreement establishes the character of the UN involvement in Afghanistan as merely supportive, with control lying in the hands of the Afghan authorities from the very beginning of the reconstruction and peace-building process. The Preamble reaffirms “the independence, national sovereignty and territorial integrity of Afghanistan” while “[a]cknowledging the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice”, and finally determines that the UN, “as the internationally recognized impartial institution, has a particularly important role to play, …, in the period prior to the establishment of permanent institutions in Afghanistan”, thereby already placing limits on the UN involvement. It establishes that power shall be transferred to the Interim Authority only weeks after the talks in Bonn,161 confirming that “the Interim Authority shall be the repository of Afghan sovereignty, with immediate effect.”162 As stated in the preamble of the Bonn Agreement, power was thus transferred directly from the Council of Ministers headed by Rabbani163 to the Interim Authority. Legally, genuine authority continuously rested with the Afghan authorities, instead of resting with the Secretary-General of the UN and being exercised through his Special Representative.164 In accordance with the merely supportive and consultative role of the UN, the Bonn Agreement does not contain any reserved powers, even in the event of the Interim Authority not being able to decide on matters relating to the convening of the Emergency Loya Jirga, which was essential for transferring power to a body of authority legitimized by a more democratic process than the talks in Bonn. Had there been problems, the Special Representative of the Secretary-General was merely to “use his/her good offices with a view to facilitating a resolution to the impasse or a decision.”165 In relation to human rights, apart from developing and implementing a program of human rights education, the UN only has “the right to investigate human rights violations and, where necessary, recommend corrective ac- 161 162 163 164 165 Sovereignty was transferred to the Afghan Interim Authority on 22 December 2003. Section I (3) Bonn Agreement. See note 6. Two examples where the UN exercised authority are the reconstruction processes of Kosovo and East Timor, which are both described in this Volume by J. Friedrich and M. Benzing. See Annex II (5) Bonn Agreement. Max Planck UNYB 9 (2005) 416 tion.”166 In view of this limited role accorded to the United Nations in the Bonn Agreement and in view of the fact that Afghanistan has remained a state with undisputed sovereignty throughout the long years of war, the UN has thus adopted a “light footprint” approach, focusing on building Afghan capacities and ensuring that UNAMA’s tasks are carried out in close coordination and consultation with Afghan authorities.167 c. UNAMA’s Mandate The “light footprint” approach mentioned above was decisive in determining the character of UNAMA, whose definition as an “assistance” mission already reinforces the intention of the UN to follow a nonintrusive approach in Afghanistan. To deal with issues beyond ensuring security, the Security Council had endorsed the report by the SecretaryGeneral168 that called for the establishment of an UN Assistance Mission in Afghanistan (UNAMA) that was to help implement the Bonn Agreement169 and to assist in the relief, recovery and reconstruction of the country as foreseen in resolution 1401.170 The Report of the Secretary-General of 18 March 2002171 provides the mandate and structure of the mission.172 The core of the mission’s mandate is defined as follows:173 “(a) Fulfilling the tasks and responsibilities, including those related to human rights, the rule of law and gender issues, entrusted to the 166 167 168 169 170 171 172 173 Annex II (6) Bonn Agreement. Report of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, Doc. A/56/875-S/2002/278 of 18 March 2002 , para. 98. Doc. A/56/875-S/2002/278 of 18 March 2002. The UN’s role during the interim period had been determined by Annexes II and III to the Bonn Agreement, whose language is closely mirrored in the S/RES/1401 (2002) of 28 March 2002 and the report by the SecretaryGeneral Doc. A/56/875-S/2002/278 of 18 March 2002. S/RES/1401 (2002) of 28 March 2002, which defined its mandate for an initial period of twelve months, renewed since for subsequent twelve month periods in S/RES/1471 (2003) of 28 March 2003, S/RES/1536 (2004) of 26 March 2004, S/RES/1589 (2005) of 24 March 2005. Doc. A/56/875-S/2002/278 of 18 March 2002. Ibid., paras 97 and 98. Ibid., para. 97. Afsah/ Guhr, Case Study – Afghanistan 417 United Nations in the Bonn Agreement, which were endorsed by the Security Council in its resolution 1383 (2001); (b) Promoting national reconciliation and rapprochement throughout the country, through the good offices role of [the SecretaryGeneral’s] Special Representative; (c) Managing all United Nations humanitarian relief, recovery and reconstruction activities in Afghanistan, under the overall authority of [the Secretary-General’s] Special Representative and in coordination with the Interim Authority and successor administrations of Afghanistan.” As has already been pointed out, this mandate takes up many of the findings of the 2000 Brahimi report174 and can be seen as the first attempt by the UN to establish a fully integrated mission under the authority and leadership of the Special Representative of the SecretaryGeneral for Afghanistan.175 The mandate does not furnish UNAMA with any operational responsibility for administering any part of Afghanistan, but is rather a recognition of the Afghan authorities’ ultimate responsibility for the Agreement’s implementation.176 UNAMA is to co-ordinate and consult closely with the Afghan actors to ensure that Afghan priorities lead the mission’s assistance efforts.177 The aim should be to increase Afghan capacity, while relying on as limited an international presence and on as many Afghan staff as possible, and using common support services where possible, thereby leaving a light expatriate “footprint”.178 It is acknowledged that the fluidity of the situation might require a future revision and expansion of the mission’s mandate.179 The emphasis on consultation and consent of the local authorities that serves to create a feeling of “ownership” of the reconstruction process may be a model for future peace-keeping and reconstruction operations. It may prevent some of the problems that can arise at the end of an operation characterized by a more “controlling” approach, once the local authorities are left to fend for themselves. It seems logical that progress toward developing local democratic and administrative structures is more difficult to achieve when the means employed to174 175 176 177 178 179 Report of the Panel on United Nations Peace Operations, Doc. A/55/305S/2000/809. Doc. A/56/875-S/2002/278 of 18 March 2002, para. 98 (a) and (e). Ibid., para. 98 (b). Ibid., para. 98 (c). Ibid, para. 98 (d). Ibid., para. 98 (i). 418 Max Planck UNYB 9 (2005) ward that end are authoritarian and imposed from the international community, not allowing local actors to be involved in the decisionmaking process and not building local capacities.180 To this end, UN agencies and the World Bank have embarked on capacity-building programs through the provision of training.181 In addition, program secretariats have been established within each ministry that are led by particular UN agencies and seconded with international staff.182 Within the government, the Afghan Assistance Coordination Authority (AACA) has been created to put in place a series of national programs that reflect Afghan priorities and that are oriented towards building the capacity of the Afghan Government, civil society and private sector.183 The AACA is to work together with UNAMA, whose role is to coordinate the functions of all the UN agencies engaged in humanitarian assistance. Unfortunately, in practice the efforts have not been wholly satisfactory. While the government in Kabul has drafted a National Development Framework and has drawn up a National Development Budget in accordance with its responsibility for setting the planning and budgetary framework, it feels that it does not have the central role in determining policy and strategy.184 The UN sometimes appears to be operating like a parallel administration185 and while international aid for the national development budget is being tracked by the Ministry of Finance, the bulk of the external assistance to Afghanistan is still not being channeled through the national budget,186 as national sensibilities and the desire for “visibility” often trump the agreed need for integrated coordination and local ownership. Furthermore, some critics have remarked that the mandate and self-image of the UN does not correlate fully with the reality on the ground: 180 181 182 183 184 185 186 J.S. Kreilkamp, “U.N. Postconflict Reconstruction”, N.Y.U. J. Int’l L. & Pol. 35 (2002/2003), 619 et seq. (667). P. Marsden, “Afghanistan: the reconstruction process”, Int’l Aff. 79 (2003), 91 and seq. (95). Ibid. Report of the Secretary-General of 18 March 2002, Doc. A/56/875S/2002/278, para. 15. Marsden, see note 181, 94, 95. Ibid., 95. Report of the Secretary-General, Doc. A/59/581-S/2004/925 of 26 November 2004, para. 47. Afsah/ Guhr, Case Study – Afghanistan 419 “Although Lakhdar Brahimi, the UN Special Representative for Afghanistan and head of the United Nations Assistance Mission for Afghanistan (UNAMA),187 promised a ‘light footprint’ in terms of international presence, based on lessons learned from East Timor, in practice there has been an extremely heavy footprint in Kabul and an extremely light (to the extent of being barely visible) footprint outside the capital”.188 This has not only had a negative effect on the effectiveness of the international effort, but has also created ill-feelings among the Afghan population excluded from the benefits associated with the international presence, particularly in the Pashtun South and South-East. Related negative effects are the dislocations and market distortions that inevitably accompany the presence of a relatively large number of expatriate staff with commensurate needs and purchasing power. A distinct, but related criticism has been the extreme discrepancy in the salaries and remuneration packages earned by expatriate staff that only seldom translates into commensurate benefits for the local administration.189 IV. Instruments of the Bonn Process 1. Interim Authority and Emergency Loya Jirga One of the prerequisites for building a peaceful and stable state is the legitimacy of the government in charge of the peace-building processes. The Afghan authority that the international community first worked with was the Interim Authority under the chairmanship of Hamid Kar- 187 188 189 SRSG Brahimi’s term ended on 31 December 2003, he was succeeded by Jean Arnault as SRSG, endorsed by S/RES/1536 of 26 March 2004. Goodhand, see note 26, 169. This is due in no small part to the inherent nature of providing external expertise to particular sections of the administration engaged in lowspecificity, high-transaction-volume activities. See F. Fukuyama, “Why there is no Science of Public Administration”, Journal of International Affairs 58 (2004), 189 et seq. Whether the criticism leveled by Afghans such as Bachardoust and others, namely that the expertise supplied is sub-standard yet overpaid needs to be assessed in this light as well, throwing up questions about the wisdom of providing certain kind of expatriate expertise. Compare “Geldmaschine Afghanistan”, Der Spiegel of 26 March 2005, 116 et seq. 420 Max Planck UNYB 9 (2005) zai,190 a body whose composition had been negotiated during the talks in Bonn.191 To remedy the problem that the members of the Interim Authority lacked a public mandate, the Bonn Agreement previewed the convention of an Emergency Loya Jirga within six months of the formation of the Interim Authority to establish a Transitional Authority, including a broad-based transitional administration.192 The Emergency Loya Jirga had three tasks: choose the head of state, determine the structure of the Transitional Authority and approve the key personnel that was to lead Afghanistan for a maximum of two years until elections could be carried out.193 Although the Bonn Agreement enjoys a measure of legitimacy and is broadly accepted as an agreement negotiated in good faith, the Afghan Interim Authority created by the Bonn Agreement was viewed to be less than representative.194 Many Afghans believed that the Emergency Loya Jirga, which convened in Kabul from 11-19 June 2002, would replace the Afghan Interim Authority with a more broad-based successor administration. Unfortu190 191 192 193 194 Reflecting the disagreement over the role of the king in the process, Section III (2) mentions that the chairmanship over the Interim Administration had been offered to the former king but that he had declined the offer. The honorific title “Father of the Nation” bestowed by the Emergency Loya Jirga on the former king largely served the same purpose of bridging the differences between those who had advocated a return to the monarchy, and those in favor of a republican set-up. Article 158 of the new Afghan Constitution confirms the grant of this title for the lifetime of former king Mohammad Zahir Shah. Section III Bonn Agreement. Its preliminary composition has been laid down in Annex IV to the Bonn Agreement. Its main features are a very large cabinet-style composition containing 30 members, including a Chairman, 5 Vice-Chairpersons who simultaneously preside over individual Departments, as well as 24 Heads of Department, corresponding to the envisaged structure of ministries. The large number of portfolios as well as vice-chairpersonships stems from the desire to include as many political and military actors as possible within the formal process, thus reducing the incentive for potential spoilers to disrupt the peace process by giving them a personal stake in it. Five departments were not filled in Bonn, thus allowing for a certain flexibility to include others who were not present or represented during the negotiations. Section I (4) Bonn Agreement. Section I (4) and Section IV (5) Bonn Agreement. C. Johnson et al., Afghanistan’s political and constitutional development, Report of the Overseas Development Institute, January 2003, 12, 13, <www.odi.org.uk/hpg/papers/evaluations/afghandfid.pdf>. Afsah/ Guhr, Case Study – Afghanistan 421 nately, both the process – which was not transparent – and its result fell short of the standards of legitimacy and representativeness that many had hoped for: “The Emergency Loya Jirga did not meet the expectations of many Afghans, who hoped to elect a more representative government in addition to the president. Some delegates and electors were intimidated or pressured by leaders who retained personal control over militias and who distributed massive funds from foreign sources or illicit activities”.195 The Special Independent Commission for the Convening of the Emergency Loya Jirga196 mandated with its preparation produced unclear procedural rules and, in violation of the Bonn Agreement,197 released these only one day before the commencement of the Emergency Loya Jirga.198 The participants were thus not given the opportunity to familiarize themselves with the process, resulting in several days without an agenda, chaotic speakers’ lists and delegates not knowing what, when or how to decide issues.199 1,051 of the delegates, who represented a diverse mixture of all political, religious and ethnic groups in Afghan society, were elected nationwide by 15,000 electoral persons, who had themselves been elected within their districts.200 This group was supplemented by 550 delegates appointed to ensure representation of weaker sections of society, such as refugees, women, minorities, nomads and handicapped persons.201 However, this process was not entirely free of intimidation and violence.202 The requirement of the Bonn Agreement203 that armed factions 195 196 197 198 199 200 201 202 B.R. Rubin et al., Building a New Afghanistan: The Value of Success, the Cost of Failure, Center for International Cooperation, NY University, 2004, 22 et seq. Section IV Bonn Agreement. Section IV (3) Bonn Agreement had stipulated that the Commission would publish and disseminate the rules and procedures of the convening of the Emergency Loya Jirga at least ten weeks before its commencement. C. Johnson et al., see note 194, 15. Ibid. J. Vergau, “Manifest der Hoffnung: Über die neue Verfassung Afghanistans”, VRÜ 37 (2004), 465 et seq. (469). Ibid., 469, 470. The final number of female delegates was 160. For details see Human Rights Watch Briefing Paper, Afghanistan: Return of the Warlords, June 2002, 10, <http://www.hrw.org/backgrounder/asia/ afghanistan/warlords.htm>. 422 Max Planck UNYB 9 (2005) should be withdrawn from Kabul was not implemented.204 Some outspoken candidates required protection, others could not return home due to personal threats made against them for their performance during the Emergency Loya Jirga. In addition, some of the 1,600 delegates were perceived to be appointed by various warlords and power brokers205 or were themselves206 serving as military commanders and/or were accused of being complicit in human rights violations, both of which would have been criteria for ineligibility under the agreed upon procedure. While Hamid Karzai was elected as the head of the Afghan Transitional Authority207 by an overwhelming majority, and while his acceptability for office was not contested and has now been confirmed by the elections held in September 2004, this success was slightly tainted by the fact that President Bush’s envoy to Afghanistan, Zalmay Khalilzad, reportedly pressured the former Afghan king Mohammed Zahir Shah to withdraw his nomination in favor of Karzai.208 In addition, the secret ballot, which was used for the election of the transitional presidency, was abandoned for votes concerning the arrangement of the transitional government and its key personnel.209 There was no debate or proper vote on the composition of the next administration or on any plan or proposal for the design of the government.210 A number of key cabinet figures confirmed by the Emergency Loya Jirga are believed to be responsible for war crimes and are deemed unacceptable by many Afghans.211 The fact that the international community deals with these individuals across a wide range of civilian issues, despite the fact that the rules of the Emergency Loya Jirga excluded their eligibility for public office, serves to accord them a legitimacy that 203 204 205 206 207 208 209 210 211 Annex I. 4. Bonn Agreement. Especially a large number of troops loyal to defense “minister” Fahim continues to remain in the city until today. A. Saikal, “Afghanistan after the Loya Jirga”, Survival 44 (2002), 47 et seq. (48). Examples are General Dostum (deputy defense minister in the Interim Authority and a regional leader of the north of Afghanistan), Gul Agha Sherzai (the governor of Kandahar), Haji Abdul Qadir (the governor of Nangahar), and Ismail Khan (the governor of Herat). The name was later changed to Transitional Islamic State of Afghanistan. Saikal, see note 205, 48. HRW Report, see note 202, 10. Ibid. Johnson et al., see note 194, 1. Afsah/ Guhr, Case Study – Afghanistan 423 many Afghans find offensive.212 This has implications not only for the security, but also for the ability of the state to raise revenue, and for broader perceptions of legitimacy.213 Nonetheless, it cannot be denied that despite all the problems, the Emergency Loya Jirga was the first moderately democratic forum in which differences could be aired and women were given the opportunity to participate in building the foundations for future democratic processes. It did not end in a deadlock or in violence, a result that would not have come as a surprise to many observers. In light of the last 23 years of warfare and lack of public participation in governmental processes on the state level, the Loya Jirga represents a traditional Afghan mechanism that is largely accepted and respected by the Afghan people, giving them a much stronger sense of ownership of the reconstruction process than an imposed UN transitional administration could ever have done. 2. Constitutional Process The next step towards permanent institutions, as outlined by the Bonn Agreement,214 was the convening of a Constitutional Loya Jirga within 18 months of the establishment of the Afghan Transitional Authority in order to adopt a new constitution for Afghanistan. To prepare the way, a nine-member Constitutional Drafting Commission was appointed on 5 October 2002, which developed a plan for the constitution-making process and a draft constitution. The Constitutional Drafting Commission, which was made up of technical drafters rather than political actors,215 passed on their results to the 35 members of the Constitutional Review Commission.216 The draft of the Constitutional Review Commission was finally passed to the Constitutional Loya Jirga that 212 213 214 215 216 Ibid., 13, also fn 34. Ibid., 12, 13. Section I (6) Bonn Agreement. Johnson et al., see note 194, 15. For a comprehensive overview of the constitutional process including the relevant documents and drafts, refer to the comprehensive website of the Constitutional Commission, <www.constitution-afg.com>. Max Planck UNYB 9 (2005) 424 adopted the new Constitution217 on 4 January 2004. It became operative once Karzai had signed it on the 26 January 2004. a. The Drafting Process The drafting process itself was characterized by heated discussions between reformers and more conservative political and religious actors.218 The resulting draft draws on the substantive content of past Afghan constitutions,219 but offers a modern legal framework for the reconstruction and the establishment of the rule of law. Unlike the constitutional drafting processes in some other war-torn countries, such as Bosnia-Herzegovina,220 where there were strong foreign influences, the drafting of the new Afghan constitution was an 217 218 219 220 A link to the text of the Constitution is available at: <http://www.idlo.org/ AfghanLaws/Laws%201921_todate.htm>. Vergau, see note 200, 471 et seq. Previous constitutions were: 1747-1923 “customary constitution”; 1923 first written constitution under Amanullah, whose reformist and secular outlook led to widespread revolt and the removal of the king; 1931 constitution under Nader Shah, which largely retracted the liberal advances and re-established the role of religion; the 1964 constitution, considered quite modern and liberal, drafted as the result of the “Palace Revolution” of Zaher Shah who had dismissed his prime minister (and cousin and brother-inlaw) Daoud the previous year and re-asserted royal power under prime minister Dr. Yousouf; in 1973 Daoud then toppled the king and proclaimed the republic, leading in 1977 to the first republican constitution; after the Communist coup d’état of 1978 and the Soviet invasion one year later a Constitutional Declaration was proclaimed in 1980, followed by a full constitution in 1987; in an effort to appease the opposition, the Najibullah government issued a Constitutional Revision in 1990; the 1992 Peshawar Accords effectively abrogated this constitution and established the Islamic State of Afghanistan, which can thus be considered a constitutional document in its own right, containing relatively detailed provisions about the structure of the government; in 1993 a draft for an Islamic Constitution was commenced under President Mujaddidi, and finalized as the Basic Principles of the Islamic State under Rabbani, but never formally adopted; the Taliban who came to power in 1996 likewise never adopted a formal constitution. For a comprehensive treatment see Bachardoust, see note 53; Moltmann, see note 50; Vergau, see note 200. E. Sarcevic, “Völkerrechtlicher Vertrag als Gestaltungsinstrument der Verfassunggebung: Das Daytoner Verfassungsexperiment mit Präzendenzwirkung?”, AVR 39 (2001), 297 et seq. (299 and seq.). Afsah/ Guhr, Case Study – Afghanistan 425 overwhelmingly “Afghan” process. A strong indicator is the fact, that the text was originally drafted in Dari while the UN had to provide unofficial English translations for its own use and that of the international experts permitted to see the draft at a later stage.221 The Constitutional Drafting Commission222 developed this first text mainly on the basis of the constitution of 1964, but also incorporated some aspects of the newer constitutions of 1977, 1987 and 1990.223 This first draft was then given to the Constitutional Review Commission,224 which in turn reviewed the text and showed it to a few international experts and the government’s National Security Council.225 The Constitutional Review Commission worked closely together with only three foreigners: Barnett R. Rubin of the United States of America, Yash Pal Ghai of Kenya and Guy Carcassonne of France.226 Many more international experts offered advice on specific issues,227 such as the role of Islam, the options of a Constitutional Court for Afghanistan, the unitary versus the federal state structure option, the advantages and disadvantages of a presidential, parliamentary or mixed system, the division of powers between the executive and the legislature as well as women’s rights, to name but a few. However, while the UN insisted on introducing a measure of public consultation in the drafting process and Brahimi saw the UN’s role as assuring that the constitution would create a “workable” form of government and conform to basic international standards,228 foreign technical assistance was kept to a minimum because of concerns that the Constitution would appear to be 221 222 223 224 225 226 227 228 See B.R. Rubin, “Crafting a Constitution”, Journal of Democracy 15 (2004), 5 et seq. (note 3 on page 19). For a detailed documentation of the process see Secretariat of the Constitutional Commission of Afghanistan, The Constitution-Making Process in Afghanistan, Constitutional Commission of Afghanistan, 2003, <www. constitution-afg.com/drafting_comm.html>. See in detail Vergau, see note 200, 467 et seq. Vergau in particular laments the failure to draw upon the more progressive elements of the 1978, 1980, 1987, and 1990, instead relying almost exclusively on the 1964 constitution. A list of the members of the Constitutional Review Commission can be found at: <www.constitution-afg.com/review_comm.html>. See Rubin, see note 221, 10. Ibid, note 2 on page 19. Some of the papers presented to the Commission are available under: <www.cic.nyu.edu/conflict/conflict_translations.html>. See Rubin, see note 221, 10. 426 Max Planck UNYB 9 (2005) written by non-Afghans.229 Nonetheless, a UNAMA Constitutional Commission Support Unit was created that, with the agreement of the Transitional Islamic State of Afghanistan and the Secretariat, had the primary responsibility for coordinating international technical and financial support for the Project.230 UNDP was to assist the constitutional process by providing financial management, administrative and operational support.231 To increase legitimacy among Afghans, the Secretariat of the Constitutional Review Commission developed a public consultation strategy.232 By way of written submissions, oral submissions and questionnaires, input was to be collected from the public over a period of two months in all 32 provinces and from the refugees in Iran and Pakistan. Among others, issues such as the role of religion, national unity, official languages, protection of minorities, the type of governmental system, separation of powers, qualifications for public office, the Loya Jirga mechanism and more were to be addressed. In addition, the Afghan people were invited to bring up any other issue they believed should be considered in the constitutional drafting process.233 To help in this process, the UN and NGOs provided personnel and training courses. The objective was to educate selected community leaders in basic constitutional issues necessary to carry out the consultation process and to enable them to train others for this process.234 In view of the widespread rate of illiteracy, the short time-span previewed for this public consultation exercise and the limited resources, as well as the effectiveness of this process can be criticized.235 While the theory of the consultation process was commendable, in practice it did not function as expected due to a number of factors, including planning deficits by 229 230 231 232 233 234 235 ICG Asia Report No 56, Afghanistan’s flawed constitutional process, 12 June 2003, 15, <http://www.crisisgroup.org/home/index.cfm?id=1639& l=1>. F. Wardak, The Management of the Constitution Making Process in Afghanistan, Constitutional Review Commission, 1 et seq. (5), <http:// www.constitution-afg.com/resrouces/First%20article.doc>. Ibid. Secretariat Constitutional Review Commission, Public Consultation Strategy, <http://www.cic.nyu.edu/conflict/conflict_translations.html>. G.R. Roashan, Afghan Constitution Building Exercise, Taking the Case to the People, 5, 6, <http://www.cic.nyu.edu/conflict/conflict_translations. html>. Ibid., 5. Ibid., 5, 6. Afsah/ Guhr, Case Study – Afghanistan 427 UNAMA.236 The actual draft of the constitution – with the changes incorporated at every stage of the drafting process – was not published during the consultation process, and was finally made public on 3 November 2003, barely a month before the scheduled opening of the Constitutional Loya Jirga that was to finalize the draft.237 b. The Constitutional Loya Jirga The Constitutional Loya Jirga, however, was more successful than expected. Security and organization did not pose as many problems as during the Emergency Loya Jirga and debates over important issues did take place.238 The Secretariat of the Constitutional Commission prepared a very detailed framework for the Constitutional Loya Jirga, which reflected the legal framework laid down in a Presidential Decree of 24.04.1382 (15 July 2003) and which laid out in detail the necessary criteria for the selection of candidates, the timeline for consultations with the society and registration of candidates, the election and the roles and responsibilities of delegates, as well as the necessary interaction with international agencies that helped in the preparation of the assembly.239 The final draft of the Constitution was presented to the Constitutional Loya Jirga that convened on 14 December 2003, consisting of 502 delegates, of which the majority was elected and about 50 were appointed.240 Among others, 64 female delegates, i.e. two from each province, 24 delegates representing the refugees in Pakistan and Iran, 9 delegates representing the nomads, and 3 delegates representing the Hindu and Sikh minorities were elected by the groups they respectively repre- 236 237 238 239 240 ICG Asia Report No. 56, see note 229, 15-20. Rubin, see note 221, 10. For details concerning the debated issues see Rubin, see note 221, 5 et seq. and Vergau, see note 200. See the “Constitutional Loya Jirga Framework”, <http://www.unamaafg.org/docs/docs.htm>. For the details concerning the convention and procedures of the Constitutional Loya Jirga, see the Presidential Decree on the Convening of the Constitutional Loya Jirga of 15 July 2003, the Rules of Procedure, and the official Afghan “Draft Constitution Fact Sheet”, <www.unamaafg.org/docs/docs.htm>. 428 Max Planck UNYB 9 (2005) sented.241 The President appointed the rest, of whom 25 were to be legal experts and 25 were to be women.242 In addition, the following people participated as observers: cabinet members (33), the Chief Justice, members of the Constitutional Review Commission (35), the Chairpersons of the Independent Human Rights Commission and the Judicial Reform Commission. Apart from these observers the following people were ineligible: governors, deputy governors, district administrators, or mayors; staff members of the Secretariat of the Constitutional Commission; employees of the police, armed forces, and the National Security Directorate.243 There were some reports about voter and candidate intimidation,244 and this has been acknowledged even by insiders sympathetic to the process: “Afghanistan was and is not a place where a show of hands at a meeting can decide who will hold power”.245 Given the clear inability of the Karzai government to assure security for voters and candidates, the government and the UN thus considered it best to keep the content of the constitutional deliberations confidential until a thoroughly vetted text could be presented to the public and the delegates to the Constitutional Loya Jirga.246 Clearly, this approach compromises normative standards of democratic participation and notions of popular sovereignty, but it can be argued that it was defensible given the danger of the process being “hijacked” by radical agendas.247 Nevertheless, the debates at the Constitutional Loya Jirga were extremely spirited with most substantive debate focusing on the choice between a purely presidential or a mixed system with a president and a prime minister248 rely241 242 243 244 245 246 247 248 Vergau, see note see note 200, 469. Ibid. The Secretariat of the Constitutional Commission, Framework for the Constitutional Loya Jirga, see note 239. See for instance the open letter by Human Rights Watch sent to President Karzai on 29 October 2003 to this effect, <hrw.org/press/2003/10/ afgnaistan102903-ltr.htm> (NB! the spelling mistake in the URL is intentional). Rubin, see note 34, 8. Ibid. The normative debate that arose in the context of the aborted electoral victory of the Algerian Islamicist Front Islamique du Salut (FIS) is comparable to the dilemma posed here. The first option was strongly advocated by the Pashtun delegates whose ethnic majority status gave them a natural monopoly over the post of president; for the same reason the other ethnic groups strongly opposed a Afsah/ Guhr, Case Study – Afghanistan 429 ing on a parliament-approved cabinet; the question of dual citizenship for cabinet ministers, i.e. the role returning diaspora Afghans were to play in the future;249 the place of Islam in the legal system and the denomination of the country as an Islamic Republic; as well as the position of minorities and women. c. The Constitution The Constitutional Loya Jirga adopted the 162 articles of the Afghan Constitution on 4 January 2004. The result is a constitution establishing a presidential system with a bicameral parliament, a highly centralized administration, strong minority rights250 including rights for minority languages and a comprehensive catalogue of human rights. A federal option had been debated,251 but was abandoned for a number of rea- 249 250 251 purely presidential system as a recipe for ethnic domination. The Northern Alliance, and in particular the Shura-yi Nazar within it, resisted the push towards presidentialism, but in the end its two leading figures, defense minister Fahim and education minister Qanooni, took different positions due to diverging personal ambitions. The former aspired to become sole vice-president under Karzai while the latter claimed the prospective premiership. The Americans strongly favored a strong presidency because they considered it to be a more stable form of government, thereby assuring them of a reliable point of contact. Most of the last minute changes to the draft prior to its publication concerned precisely this debate over presidentialism vs. parliamentarism. See Rubin, see note 34, 10 et seq. At the time it most concerned the American-Afghan finance minister Dr. Ashraf Ghani and interior minister Ali Ahmad Jalali. The compromise worked out at the time of the adoption of the constitution, namely that parliament (the House of the People) can opt to approve a candidate despite his foreign citizenship did not help those ministers nominated by Karzai after his election in 2004 because there is as yet no parliament to approve them under article 72 (1). A number of senior officials have refused to serve as ministers due to this constitutional requirement that under the present circumstances would have required them to renounce their adopted citizenship. Personal communication with senior Afghan officials, February 2005. J. Desautels-Stein, “Rites and Rights in Afghanistan: The Hazara and the 2004 Constitution”, The Fletcher Forum of World Affairs 29 (2005), 157 et seq. Inter alia: O. Zakhilwal, “Federalism in Afghanistan: a recipe for disintegration”, Federations, special issue on Afghanistan, Oct. 2001, 11 et seq.; D. Cameron, “Overview: A role for federalism in Afghanistan after the Taliban, Federations, special issue on Afghanistan”, Federations, special issue on 430 Max Planck UNYB 9 (2005) sons. While some believed it would solve some of the problems caused by warlords and ethnic divisions,252 others said that the prerequisites for a successful federal system were not given at the time of the drafting of the constitution.253 The argument brought forth most often was that Afghanistan needs a strong central government because federalism would lead to disintegration:254 “[I]n a country like Afghanistan, where illiteracy is abundant, the economy is in shambles and land and other natural sources are not evenly distributed across the country, federalism would lead to warlordism, personal fiefdoms, no respect for the central government and a continuation of internal war – this time over who gets what”.255 Another argument against a federal solution was the fear of more interference in Afghan affairs from the neighboring countries, especially as the Iran-backed Hezb-i-Wahdat of Khalili and the Uzbekistan- and Russia-backed Junbish-i-Mili of General Dostum called for federalism.256 In response to these fears, article 1 of the Afghan Constitution now reads “Afghanistan is an Islamic Republic, independent, unitary 252 253 254 255 256 Afghanistan, Oct. 2001, 3 et seq.; R. Chowdhari Tremblay, “A federal arrangement for Afghanistan”, Federations, special issue on Afghanistan, Oct. 2001, 9 et seq.; H.E. Hale, The Federal Option for Afghanistan, East West Institute, Policy Brief Vol. 1, No. 7, November 2002, <www.ewi.info/pdf/volume1_issue7.pdf>; G.R. Roashan, Pros and Cons of Federalism in Afghanistan, Institute for Afghan Studies, <www.institutefor-afghan-studies.org/AFGHAN%20CONFLICT/Analsis/ Pros%20and%20Cons%20of%20Federalism%20in%20Afghanistan.pdf>; Y.P. Ghai, An Options Paper for the Afghan Constitution Commission, Unitary or Federal: A False Choice? Decentralisation of state powers in Afghanistan, Center on International Cooperation, <www.cic.nyu.edu/pdf/ E5DencentralizationofPowerGhai.pdf>; H. Malikyar/ B.R. Rubin, CenterPeriphery Relations in the Aghan State: Current Practices, Future Prospects, Center on International Cooperation, December 2002, 1 et seq., <http://www.cic.nyu.edu/pdf/CPReport0107031.pdf>. Hale, see note 251, 1, 6, 7; Cameron, see note 251, 4; Tremblay, see note 251, 10. Roashan, see note 251, 6; Malikyar/ Rubin, see note 251, 44-46. Marshall Qasim Fahim, Vice President and Minister of Defense, Afshraf Ghani, Minister of Finance at the Loya Jirga, Gul Agha Shirzai of Qandahar, Hajji Din Muhammad, Governor of Nangarhar, all quoted in Malikyar/ Rubin, see note 251, 41. Zakhilwal, see note 251, 12. Ibid. Afsah/ Guhr, Case Study – Afghanistan 431 and indivisible state”. The head of state is a strong President, who appoints his cabinet with the approval of the National Assembly.257 In consideration of the special role Loya Jirgas as a traditional mechanism have played in decision-making processes in Afghanistan, the Constitution contains special regulations concerning the Loya Jirga “as the highest manifestation of the people of Afghanistan”.258 The Loya Jirga has the competence to amend the Constitution, prosecute the President and decide on issues “related to independence, national sovereignty, territorial integrity, and supreme interests of the country”.259 While the Constitution takes into consideration that there are many ethnic groups living in Afghanistan, it uses Islam as a strongly unifying factor, referring to it in many articles.260 Article 2 of the Constitution defines Islam as the religion of the state, but at the same time determines that: “Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of the law.”261 Furthermore, the Constitution explicitly states that the nation of Afghanistan is comprised of the various ethnic groups,262 and allows the languages of these ethnic groups to be the third official language, next to Pashtu and Dari, in those areas where the majority speaks them.263 Discrimination of any kind is prohibited.264 This prohibition is a part of the human rights catalogue contained in Chapter Two of the Constitution that also determines the duties of the citizens.265 These rights can be enforced by the strong judiciary, headed by the Supreme Court,266 and are protected in their continuity by article 149 II Afghan Constitution that determines that “[t]he amendment of the fundamental rights of the people is only permitted to make them more effective”. A Constitutional Court is not envisaged, the Supreme Court having the 257 258 259 260 261 262 263 264 265 266 See arts 60, 64, 65, 66, 71, 75, 79 of the Afghan Constitution. Article 110, see also the whole Chapter 6, arts 110-115 of the Afghan Constitution. Article 111 of the Afghan Constitution. Arts 1, 2, 3, 17, 18, 19, 23, 35, 45, 54, 60, 62, 81, 116, 118, 130, 131, 136, 149, 159, 161, 162 of the Afghan Constitution. Article 2 II of the Afghan Constitution. Article 4 of the Afghan Constitution. Article 16 of the Afghan Constitution. Article 22 of the Afghan Constitution. Articles 22-59 of the Afghan Constitution. Articles 116-135 of the Afghan Constitution. 432 Max Planck UNYB 9 (2005) competence to review the constitutionality of laws, legislative decrees, and international treaties.267 What influence article 3 of the Constitution, which states that: “[i]n Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam”, will have on the legal reality and human rights in Afghanistan remains to be seen and will be strongly dependent on the judiciary.268 Furthermore, it needs to be pointed out that the most egregious instances of human rights violations are either the result of arbitrary violence committed by military commanders, or come about through the application of tribal law. With regard to the former it must be said that the pertained religious or secular nature of the legal system will have little impact on such abuses, as only the effectiveness of law enforcement will affect impunity and thus the prevalence of violations. With regard to tribal law, however, it can be argued that classical Islamic law with its very strict procedural safeguards and clear stipulations and rights regimes, for instance in family and personal status law, would actually constitute a progressive advance in rights protection. This is not an apologetic argument about the perceived compatibility of Islamic law with international standards, which we think cannot be maintained. Yet, compared to the legal reality dominated by tribal law, a significant progressive potential for Islamic law cannot be doubted.269 The lack of an explicit reference to the Shari’a or a specific school of Islamic law270 in art. 3 of the constitution allows the assumption that 267 268 269 270 Article 121 of the Afghan Constitution. R. Wolfrum/ E. Afsah, Stellungnahme zum afghanischen Verfassungsentwurf, Max Planck Institute for Comparative Public Law and International Law of 4 November 2003. Ibid. Fo
