International Governance of War-Torn Territories: Rule and Reconstruction

INTERNATIONAL GOVERNANCE OF WAR-TORN TERRITORIES

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INTERNATIONAL GOVERNANCE OF WAR-TORN TERRITORIES Rule and Reconstruction

RICHARD CAPLAN

OXPORD UNIVERSITY PRESS

OXPORD UNIVERSITY PRESS

Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan South Korea Poland Portugal Singapore Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Richard Caplan 2005 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2005 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, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Caplan, Richard (Richard D.) International governance of war-torn territories : rule and reconstruction / Richard Caplan p.cm. ISBN 0-19-926345-0 (alk paper) 1. Peacekeeping forces. 2. Peace-building. 3. Conflict management. I. Title. JZ6374.C37 2005 341.5'84-dc22 ISBN 0-19-926345-0 3 5 7 9 1 08 6 4 2 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by Biddies Ltd., King's Lynn, Norfolk

Contents Acknowledgements

vii

Abbreviations

ix

Introduction

1

1. Forms of International Administration Part I International Administration in Practice

16 43

2. Public Order and Internal Security

45

3. Refugees and Internally Displaced Persons

68

4. Civil Administration

86

5. Political Institution-Building

109

6. Economic Reconstruction and Development

135

Part II Critical Issues for International Administration

159

7. Planning Operations

161

8. The Exercise of Executive Authority

179

9. Accountability

195

10. Exit Strategies

212

11. Enhancing Effectiveness

230

Conclusions

251

Annex: Interviews Conducted

257

Bibliography

260

Index

283

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Acknowledgements This book began its life as an Adelphi Paper of the International Institute for Strategic Studies (IISS), which was published in 2002 under the titled New Trusteeship? The International Administration of War-torn Territories. I am indebted to Adam Roberts for first suggesting the topic to me and to Gerald Segal and Mats Berdal for their support of the project at the Institute. Very sadly, Gerry did not live to see the paper through to its completion but like many other Adelphi Papers it bears the imprint of his excellent editorial judgement. I am grateful to the numerous officials, representatives of nongovernmental organizations, scholars, and journalists—international and local in each case—who shared their knowledge of the policies and practices of the various territorial administrations discussed in these pages. Many of these individuals were extremely forthcoming, providing insights and information and in some cases allowing me to examine relevant internal documents. As several of these individuals spoke with me on the condition of anonymity, I have not identified them in the text but, rather, have listed the names of all individuals interviewed in an annex. I am grateful to the academic institutions with which I have been associated in the course of writing this book—first the Department of Politics and International Relations at the University of Reading and then the Department of Politics and International Relations at the University of Oxford, both of which provided me with valuable leave time to carry out this project. I have benefited greatly from the discussions with my colleagues at these and other institutions where I have had the opportunity to present my findings and analysis over the course of the past two years. I am also grateful to the Leverhulme Trust, the United States Institute of Peace (USIP), and Oxford's Centre for International Studies (CIS) for generous grants in support of this research. Initial financial support was provided by the Rockefeller Foundation for the IISS. Needless to say, the opinions, findings, and conclusions or recommendations expressed in this publication are those of the author and do not necessarily reflect the views of any of the funding bodies. Many individuals read and commented on portions of this book and/or the earlier Adelphi Paper. I am grateful to the following for their very helpful remarks: Othon Anastasakis, Mats Berdal,

viii

Acknowledgements

Simon Chesterman, William Durch, Zoran Pajic, Adam Roberts, Karin von Hippel, Dominik Zaum, and a number of anonymous readers. A special thanks to Mark Baskin and Mark Thompson who read the entire manuscript. Jelena Smoljan, whose own work on Eastern Slavonia has been an important source of insights, provided invaluable research assistance for the production of graphic material. A version of Chapter 4 appeared as 'Partner or Patron? International Civil Administration and Local Capacity-building' in International Peacekeeping 11/2 (Summer 2004), and Chapter 8 as 'International Authority and State Building: The Case of Bosnia and Herzegovina' in Global Governance 10/1 (January-March 2004). Portions of Chapters 1 and 11 are drawn from my Adelphi Paper. I am grateful to the publishers for their permission to reproduce selections of this material. Dominic Byatt and Claire Croft at Oxford University Press have been both enthusiastic and patient from this project's inception. Two better qualities a writer could not wish to find in an editor. And finally, to my family and to my Luisa, I owe my deepest thanks for their unfailing support and encouragement. Richard Caplan Oxford, May 2004

Abbreviations BiH CAFAO CEP CIMIC CIVPOL CNRT DPA DPKO ECOMOG

Bosnia and Herzegovina Customs and Fiscal Assistance Office Community Empowerment Project Civil-Military Cooperation Civilian Police National Council of Timorese Resistance Department of Political Affairs Department of Peacekeeping Operations Economic Community of West African States Cease-Fire Monitoring Group ETDF East Timor Defence Force ETTA East Timor Transitional Administration Falintil Armed Forces for the National Liberation of East Timor FRY Federal Republic of Yugoslavia (Serbia and Montenegro) HR High Representative IAC Interim Administrative Council ICTY International Criminal Tribunal for the former Yugoslavia IDPs Internally displaced persons IFOR Implementation Force IMF International Monetary Fund IMTF Integrated Mission Task Force INTERFET International Force in East Timor IPTF International Police Task Force JAM Joint Assessment Mission JIG Joint Implementation Committee JIAS Joint Interim Administrative Structure KFOR Kosovo Force KLA Kosovo Liberation Army KPC Kosovo Protection Corps KPS Kosovo Police Service KTA Kosovo Trust Agency KTC Kosovo Transitional Council MIP Mission Implementation Plan MSU Multinational Specialized Unit

x

Abbreviations

NATO NC NCC NGO OCHA OHR OSCE PEC PIC PISG RRTF RS SAA SAp SFOR SOE SRSG TA TFET TPF UNAMET UNDP UNHCR UNMIBH UNMIK UNMISET UNSAS UNTAC UNTAES UNTAET UNTEA WEU

North Atlantic Treaty Organization National Council National Consultative Council Non-governmental organization Office for the Coordination of Humanitarian Affairs Office of the High Representative Organization for Security and Co-operation in Europe Provisional Election Commission Peace Implementation Council Provisional Institutions of Self-Government Reconstruction and Return Task Force Republika Srpska Stabilization and Association Agreement Stabilization and Association process Stabilization Force Socially owned enterprise Special Representative of the Secretary-General Transitional administrator Trust Fund for East Timor Transitional Police Force United Nations Assistance Mission in East Timor United Nations Development Programme United Nations High Commissioner for Refugees United Nations Mission in Bosnia and Herzegovina United Nations Interim Administration Mission in Kosovo United Nations Mission in Support of East Timor United Nations Standby Arrangements System United Nations Transitional Authority in Cambodia United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium United Nations Transitional Administration in East Timor United Nations Temporary Executive Authority Western European Union

Introduction

On 20 May 2002, as representatives of ninety-five nations gathered in the capital city of Dili, the red, yellow, black, and white flag of East Timor was raised in towns and villages across the island republic, marking its independence after more than 450 years of foreign rule. The Democratic Republic of East Timor (Timor-Leste), like so many other former colonies in the preceding fifty years, would owe its existence to that great handmaiden of state creation, the United Nations. Yet never before had the independence of a newly established state been gained from the United Nations itself, the effective sovereign since 25 October 1999, when the UN Security Council established the United Nations Transitional Administration in East Timor (UNTAET) in the wake of a devastating campaign of violence orchestrated by the withdrawing forces of Indonesia, which had ruled East Timor since 1975.1 The twentieth of May thus not only inaugurated statehood for East Timor; it also brought to a close a remarkable chapter in the annals of international relations: the exercise of plenary authority by the United Nations over a war-torn territory. It is not the only time in recent years that an international organization has played such a role. Since the mid-1990s, the United Nations and other multilateral bodies have been entrusted with exceptional authority for the administration of territories wracked by violent conflict. In Eastern Slavonia, Bosnia and Herzegovina (BiH), and Kosovo, in addition to East Timor, these organizations have assumed responsibility for governance to a degree unprecedented in recent history. Similar arrangements have been proposed in the post-Cold 1

Security Council Resolution 1272 (1999). On UNTAET's sovereign powers, see Jarat Chopra, 'Introductory Note to UNTAET Regulation 13', International Legal Materials, 39 (2000), 936-8.

2

Introduction

War period for other zones of crisis or contention, including Somalia, Sierra Leone, Kashmir, Afghanistan, Iraq, and the occupied territories of the West Bank and Gaza. An idea that only a few years earlier had enjoyed limited academic currency at best—international trusteeship for failed states and contested territories—had by the mid-1990s become a reality in all but name.2 Although in many ways part of a larger trend since the late 1980s that has witnessed the expansion of traditional peacekeeping activities to embrace a wide variety of post-conflict 'peacebuilding' tasks—tasks ranging from electoral assistance and human rights monitoring to the resettlement of refugees; the training of police forces; and the disarmament, cantonment, and demobilization of armed forces—international administration can be distinguished from what has come to be known as 'expanded', 'complex', or 'multidimensional' peacekeeping.3 Unlike other peacekeeping operations, international administration is more comprehensive in scope. Never have peacekeeping operations had the authority to make and enforce local laws, exercise total fiscal management of a territory, appoint and remove public officials, create a central bank, establish and maintain customs services, regulate the local media, adjudicate rival property claims, run schools, regulate local businesses, and reconstruct and operate all public utilities, among numerous other functions. While there are certainly historic precedents for the exercise of such broad power— with, for instance, colonial administration and military occupation— no international peacekeeping operation has ever been vested with as much executive, legislative, and judicial authority as some of the international administrations that have been established in the past decade. By virtue of the broad scope of its interest in, and authority over, governance matters—extending in some cases to the total transformation of the societies in question—international territorial administration is also more political in character than other peace 2

Scholarly and other articles that advocated this approach include Gerald B. Helman and Steven R. Ratner, 'Saving Failed States', Foreign Policy, 89 (1992-93), 3-20; Peter Lyon, "The Rise and Fall and Possible Revival of International Trusteeship', Journal of Commonwealth & Comparative Politics, 31/1 (1993), 96-110; and William Pfaff, 'A New Colonialism?', Foreign Affairs, 74/1 (1995), 2-6. 3 For a discussion of the evolution of peacekeeping, see Gareth Evans, Cooperating for Peace: The Global Agenda for the 1990s and Beyond (St. Leonards, NSW: Allen & Unwin, 1993), 99-106.

Introduction

3

operations. Whether to hold elections, and on what basis; which currency to adopt; whether to consult with local interlocutors, and how widely; whether to promote the re-integration of ethnic communities or to accept de facto division; what role to give women in the reconstructed polity; which curriculum to teach in the schools; whether to allow public ownership of enterprises; what limits, if any, to place on the content of party manifestos—these are all fundamentally political issues. Traditionally, peace operations have eschewed overt political engagement; in the context of international administration, such engagement is unavoidable. International administration can also be distinguished from nationor state-building (the two terms are frequently used interchangeably) although state-building is very often an integral feature of an international administration. State-building refers to efforts to reconstruct, or in some cases to establish for the first time, effective and autonomous structures of governance in a state or territory where no such capacity exists or where it has been seriously eroded. Not all international administrations are concerned with the development of autonomous capacity, however. Indeed, in the case of Eastern Slavonia, there already existed an autonomous Croatian Serb entity (Republika Srpska Krajina), which had been established during the disintegration of Yugoslavia. The aim of the international administration was to oversee the peaceful restoration of this Serb-held region to Croatia—to unbuild the nation, in effect. Finally, international administration can be distinguished from military occupation. Many of the challenges may be similar and, insofar as the two operations are initiated and sustained by force, they can even be said to exhibit a strong family resemblance.4 Indeed, from the standpoint of the unwilling 'host'—for instance, Serbia in the case of Kosovo—there may be little difference between a NATO-backed UN administration and a foreign military occupation. From the standpoint of international politics, however, there is a significant difference: military occupation entails the occupation of sovereign territory by a state or group of states acting jointly and without the authorization of the United Nations or a similar body, as with the Allied occupation of Germany and Japan after the Second World War and the US-led 4

For an excellent analysis of military occupation, see Adam Roberts, 'What is a Military Occupation?', British Year Book of International Law, 55 (1984), 249-305.

4

Introduction

occupation of Iraq following the defeat of Saddam Hussein in March 2003.5 By contrast, an international administration is under the control of, and answerable to, an international body, whether it is the United Nations or an ad hoc organization, such as the Peace Implementation Council (PIC) in the case of BiH, which will have authorized or sanctioned its establishment.6 An international administration is thus subject to constraints that an occupying power can more easily elude—with respect to the transfer of authority to local officials, for instance, or the award of reconstruction contracts to foreign firms and other aspects of post-war reconstruction. The legitimacy that an international organization can confer on a transitional administration, moreover, may have implications for the ease of attracting donor and other external (especially regional) support and building consent for the operation within the territory. As many of the challenges of international administration are novel ones for international and regional organizations, so too are the normative questions these operations raise. Under what circumstances is it legitimate—and for whom—to administer war-torn territories? How much authority should be entrusted to transitional administrators? To whom should international administrations be accountable? How are the aims of the international community and those of the local parties to be reconciled when they come into conflict? To what extent should transitional authorities seek to transform the societies over which they exercise authority, and towards what ends? When does 'benign administration' become 'neo-colonialism', and how is that to be avoided? Precisely because many of the challenges are unique, administering authorities have often been unprepared for them and, as a consequence, have responded to them in a highly improvised and sometimes ill-considered manner. This book is a study of contemporary experiences in the international administration of war-torn territories. It explores the nature 5

The UN Charter, it may be said, provided a kind of 'negative authorization' for the Allied occupation of Germany and Japan (and other 'enemy states') with Art. 107: 'Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for that action.' 6 In contrast with military occupations, moreover, all of the international territorial administrations considered in this study were based on the consent of the parties, even if only grudging consent in the case of Yugoslavia/Serbia. See Military Technical Agreement Between the International Security Force ('KFOR') and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, 9 June 1999.

Introduction

5

of these operations—their mandates, structures, and powers—and distinguishes them from other post-conflict peacebuilding initiatives and from kindred historical practices. It analyses and assesses the effectiveness of international transitional authorities and discusses, in thematic fashion, the key challenges—operational, political, and normative—that arise in the context of these experiences. It also reflects on the policy implications of these experiences, recommending reforms or new approaches to the challenges posed by international rule and reconstruction after conflict. It is concerned principally with operations in Eastern Slavonia, BiH, Kosovo, and East Timor but it draws selectively on relevant historic antecedents as well, including the International Control Commission for Albania (1913-14); the League of Nations administrations of the Free City of Danzig (1919-39), the Saarland (1920-35), and Leticia (1933-34); the Allied occupation of Germany and Japan in the aftermath of the Second World War; and the UN administration of trusteeship territories. Each situation is different: objective conditions vary; so, too, does the nature of the underlying problem. Kosovo is essentially a dispute over the control of territory whose future status is unclear, whereas the challenge in East Timor resembled that of a classical trusteeship on the eve of independence. In thinking about policy prescription, therefore, it would be wrong to assume that 'one size fits all'. Nonetheless, certain features common to all of these operations make it fruitful to examine them from a global perspective.

The 'New Interventionism* When viewed in the context of broader developments since the end of the Cold War, the international administration of war-torn territories can be seen to be part of a larger trend that has witnessed states attaching increased importance to human rights and humanitarian norms as matters of regional and international concern. Emblematic of this trend is the broad meaning that states are now prepared to give to the term 'threats to international peace and security', the basis for coercive actions under Chapter VII of the UN Charter.7 Historically such threats have been associated with hostile acts, in particular 7

International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background, supplementary volume to the Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), ch. 1.

6

Introduction

aggression, by one state or group of states against another. And while broad interpretations are not unprecedented—witness the adoption of UN economic sanctions and arms and oil embargoes against Southern Rhodesia and South Africa from the mid-1960s in reaction to the racist policies of those two regimes8—recourse to expanded notions of threat increased markedly in the 1990s. Humanitarian crises, actual or imminent, have been invoked as threats to international peace and security, and thus grounds for Chapter VII action by the Security Council, in the cases of Afghanistan, Angola, BiH, East Timor, Haiti, Iraq, Liberia, Libya, Rwanda, Sierra Leone, Somalia, Sudan, and the Federal Republic of Yugoslavia/Kosovo, among others. Indeed, where the humanitarian situation has been grave enough, as it was in Somalia in 1992, the Security Council has not even sought to justify its action with reference to the implications of the crisis for peace in neighbouring states or the region, as the Council has done in the past.9 These are very significant developments indeed. A number of factors account for this shift in behaviour. First, patterns of conflict have changed. With the end of the Cold War, the vast majority of major armed conflicts have been of an internal nature, giving rise to brutal atrocities that have often involved very large numbers of civilians.10 Whereas at the beginning of the twentieth century most war fatalities were military (85 to 90 per cent), in the 1990s civilians accounted for as many as 90 per cent or more of all war deaths, these killings often being the consequence of widespread and flagrant violations of international humanitarian law.11 Internal conflicts, moreover, have sometimes so incapacitated states that they have rendered them incapable of performing even the most basic governmental functions, further exacerbating the humanitarian plight of civilians. This assault on international norms, and the associated challenge to regional and international order, has sometimes been too serious for many states and organizations to ignore. 8

See, for instance, SC Res 232 (1966) and 418 (1977). See SC Res 794 (1992). See also Matthias Ruffert, "The Administration of Kosovo and East Timor by the International Community', International and Comparative Law Quarterly, 50/3 (2001), 617. 10 SIPRI Yearbook (Oxford: Oxford University Press for Stockholm International Peace Research Institute, 1989-2003). A major armed conflict is defined here as prolonged combat between the military forces of two or more governments or one government and at least one organized armed group, incurring battle-related deaths of at least 1,000 people. 11 Simon Chesterman, 'Introduction', in Simon Chesterman (ed.), Chilians in War (Boulder, CO: Lynne Rienner, 2001), 2. 9

Introduction 7 Another factor that underlies this shift is the evolution in thinking that has occurred with respect to the concept of sovereignty, the bedrock principle of international law and international relations. While sovereignty has never been absolute, it has long provided states with a large measure of protection against interference by outside parties—as it continues to do. Yet increasingly sovereignty is seen not only in terms of the rights of states and the protection it affords them but also in relation to the obligations it entails on the part of a government towards its own people. Sovereignty, in other words, now also signifies responsibility and accountability. As Kofi Annan, the UN Secretary-General, put it in his 1999 address to the General Assembly: State sovereignty, in its most basic sense, is being redefined... The State is now widely understood to be the servant of its people, and not vice versa. At the same time, individual sovereignty—by which I mean the human rights and fundamental freedoms of each and every individual as enshrined in our Charter—has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny.12

A state's sovereign obligations, in this view, extend not only to its own people but also to the community of states, which is seen increasingly to have a legitimate interest in all states' compliance with human rights and humanitarian law.13 Failure to comply with these requirements thus provides grounds for other states and organizations to take measures to protect human rights and freedoms—although the scope of permissible action has been one of the most contentious issues of the past decade. A third factor that has contributed to this shift in behaviour has been the end of the bi-polar world order and with it the collapse of the global balance of power. As a consequence, there has been greater major-power cooperation both within the UN Security Council and in more ad hoc arrangements such as the Group of Seven (G7) (which would become the Group of Eight with the inclusion of Russia).14 Indeed, for a short period it seemed to many observers that the Security Council had at last begun to function as envisioned by its progenitors—as the principal guardian of international peace and security—notwithstanding new and continuing conflicts of interest 12

'Secretary-General Presents his Annual Report to General Assembly', Press 13 Release, UN Doc SG/SM/7136 and GA/9596,20 September 1999. Ibid. 14 G7 is an informal association of the world's major industrial democracies— France, Britain, the United States, Germany, Japan, Italy, and Canada—who meet regularly to discuss and coordinate economic policy issues as well as political and security policy matters. Russia joined as the eighth member in 1997.

8

Introduction

among its members.15 This cooperation—or in some cases, more accurately, deference to the sole remaining superpower—has had many implications, among them the relaxation of historic inhibitions against overt coercive intervention in conflicts of a domestic character where humanitarian suffering has been severe. Whereas major power intervention during the Cold War would have been strongly resisted by the other major powers, and might even have triggered a third world war, in the post-Cold War era the geo-strategic stakes have been decidedly lower. The cumulative effect of the various changes outlined above has been a marked disregard for sovereignty traditionally construed as a barrier to humanitarian interference, thus facilitating the pursuit of a number of policies of a highly intrusive nature that would have been unthinkable only a few years earlier—such policies as the international prosecution of war crimes committed in the context of civil wars (the former Yugoslavia and Rwanda); the indictment and arrest abroad of a former head of state for human rights crimes committed in his own country (Chile's Gen Augusto Pinochet Ugarte); the creation of a permanent international criminal court with jurisdiction over war crimes, genocide, and crimes against humanity; and a series of military interventions in response to humanitarian emergencies. Prompted in part by humanitarian considerations, the UN Security Council in the 1990s authorized military interventions in Somalia, Rwanda, Haiti, BiH, Albania, and East Timor. Even 'unilateral' interventions of a humanitarian nature—that is, without the authorization of the Security Council—attracted broad, though not unchallenged, international support, notably those by the Nigerian-led ECOMOG in Liberia; France, Britain, and the United States in northern Iraq; and NATO in Kosovo/Yugoslavia.16 Some of these same intervening states, in turn, have perceived the need for extensive follow-on arrangements to insure against the recurrence of fighting. They have appreciated that the establishment of a stable peace requires continued and substantial international involvement. 'In the past we talked too much of exit strategies. But having made a commitment we cannot simply walk away once 15

See 'Note by the President of the Security Council' issued at the conclusion of the first ever Security Council meeting held at the level of heads of state and government, UN Doc S/23500, 31 January 1992. For an excellent analysis of the Security Council after the Cold War, see Mats Berdal, 'The UN Security Council: Ineffective but Indispensable', Survival, 45/2 (2003), 7-30. 16 Humanitarian Intervention: Legal and Political Aspects (Copenhagen: Danish Institute of International Affairs, 1999), 88-93.

Introduction

9

the fight is over,' Tony Blair, the British Prime Minister, declared in April 1999, during the NATO campaign against Yugoslavia and two months before the establishment of the UN administration in Kosovo.17 Many of these states would also accept that the responsibility to protect, if it results in military intervention, entails a responsibility to rebuild, as the International Commission on Intervention and State Sovereignty concluded in its 2001 report: The responsibility to protect implies the responsibility not just to prevent and react, but to follow through and rebuild. This means that if military intervention action is taken—because of a breakdown or abdication of a state's own capacity and authority in discharging its 'responsibility to protect'— there should be a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development.18 International intrusiveness, as a consequence, has extended well beyond coercive intervention to the international administration of territories in the aftermath of intervention. Thus UN Security Council Resolution 1244 (1999), while reaffirming 'the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia', invoked the continuing gravity of the humanitarian situation in Kosovo to justify the extraordinary powers conferred on the UN transitional administrator there—an act tantamount to the virtual suspension of Yugoslavia's sovereignty over Kosovo.19 Elsewhere, too, the broad authority given to international administrators has resulted in the displacement of sovereign powers, at least temporarily. One must be careful not to overemphasize humanitarian considerations as a factor to explain the new interventionism, which, in any event has been highly selective. (NATO and UN actions in Kosovo and East Timor have had no corresponding echo in Chechnya or Israel/Palestine, for instance.) In their interventions and, more specifically, in the establishment of interim administrations 17

'Doctrine of the International Community', speech delivered by Tony Blair to the Economic Club of Chicago, Hilton Hotel, Chicago, 22 April 1999. Text available at www.globalpolicy.org/globaliz/politics/blair.htm. 18 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), para. 5.1. The Commission was established by the Government of Canada in 2000 in response to a call by Kofi Annan for public debate on the question of state sovereignty and international responsibility in humanitarian crises. 19 See UNMIK Regulation No. 1999/1 (25 July 1999), On the Authority of the Interim Administration in Kosovo.

10 Introduction subsequently, states have arguably also been motivated by considerations of national interest. Unable to insulate themselves from the effects of instability in the former Yugoslavia, the member states of the European Union have favoured a strong and extensive international presence in the region in the hope of establishing a lasting peace from which they, too, would benefit. Moreover, the EU's failure to offer an effective response to the crisis in the Balkans from its early days has led the Union to seek a leadership position in the post-war rule and reconstruction of these territories, partly to strengthen its own credibility in foreign policy-making. Thus would Bodo Hombach, the Special Coordinator of the Stability Pact for South-Eastern Europe, warn on 20 January 2000: 'We must all understand that it is not only the authority of the 31 [OSCE] heads of State and government that is at stake [in Kosovo] but also the common foreign and security policy of the European Union and the future of millions of people in Southeastern Europe.'20 Similarly, Australia, concerned about instability and a possible refugee crisis originating off its northern shore, was making preparations well before the outbreak of violence in East Timor to spearhead a military deployment there and, for these same reasons, took a strong interest in the administration of the territory thereafter.21 National interests have thus provided some of the necessary impetus for intervention leading to the establishment of international administrations. But even then the nature of states' interests in these particular cases has often differed from that of other interventions— both in earlier periods and contemporaneously—where balance-ofpower and relative gains considerations have been paramount.22 The US-led coalition that invaded and then governed Iraq from March 2003, for instance, failed to generate the same degree of support that NATO's war over Kosovo and the international administration established in its wake were able to attract. While the use of force in both 20

Speech by Hombach to the OSCE Permanent Council (copy on file with author). 21 Author interviews with UNTAET officials, Dili. As early as March 1999, the Australian Defence Force (ADF) had moved an additional brigade of troops to Darwin and was readying other elements for a possible deployment on short notice, although military planners did not anticipate a humanitarian emergency. See James Cotton, 'Against the Grain: The East Timor Intervention', Survival, 43/1 (2001), 131. 22 S. Neil MacFarlane, Intervention in Contemporary World Politics, Adelphi Paper 350 (Oxford: Oxford University Press/International Institute for Strategic Studies, 2002), ch. 5.

Introduction

11

cases was judged by many to be illegal under international law because it was not authorized by the UN Security Council, many of these same observers considered the Kosovo intervention to be legitimate nevertheless because they regarded the motivations for the action as justified, even honourable, in support of humanitarian aims.23 '[T]he Alliance has not acted out of licence, aggressiveness or disrespect for international law', Vaclav Havel, President of the Czech Republic, would tell the Canadian Parliament in defence of NATO's actions. 'It has acted out of respect for the rights of humanity, as they are articulated by our conscience as well as by other instruments of international law/24 The same could not be said very easily for US actions over Iraq.25 These differences aside, whether the interests of intervening states have been entirely compatible with the broader purposes for which the international administrations were conceived is one of the central questions that hangs over these operations.

Structure of the Book This book is organized around two main parts. Part I examines the conduct of international administration in each of five principal functional areas: public order and internal security, the resettlement of refugees and internally displaced persons, civil administration, the building of local political institutions, and economic reconstruction and development. Part II looks at the major operational, political, and normative challenges of territorial administration: the planning of operations, the exercise of executive authority, accountability, and exit strategies. The opening chapter explores the variety of experiences 23

See, for instance, The Independent International Commission on Kosovo, Kosovo Report. Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2000), 186. Many American 'Realists' objected to US interventions in Somalia, Bosnia and Herzegovina, and Kosovo precisely because they were humanitarian interventions that did not serve US strategic interests. See, for example, Henry Kissinger, 'No U.S. Ground Forces for Kosovo', Washington Post, 22 February 1999. 24 'Address of His Excellency Vaclav Havel, President of the Czech Republic, to both Houses of Parliament in the House of Commons Chamber, Ottawa, on Thursday, April 29, 1999', Government of Canada, Department of Foreign Affairs and International Trade, 11 August 1999, 4. 25 David Clark, 'Iraq has Wrecked our Case for Humanitarian Wars', The Guardian, 12 August 2003; Ken Roth, 'War in Iraq: Not a Humanitarian Intervention', Human Rights Watch World Report 2004 (New York: Human Rights Watch, 2004), 13-35.

12 Introduction of international administration—contemporary and historical—and seeks to give greater precision to the meaning of the term. The final chapter examines recent policy initiatives by states and multilateral organizations that may enhance the effectiveness of international administration and further steps that need to be taken if international actors are to be better equipped to cope with the challenge of international administration and kindred initiatives. Admittedly these are very large issues, many of them deserving of book-length treatment in themselves, and a detailed discussion of any of them, therefore, is beyond the scope of this volume. Scholars and policy analysts, for that matter, have already examined a number of the specific cases, or particular aspects of the cases, discussed here in some detail. To date, however, there has been little comparative analysis or broad study of international territorial administration as a family of common experiences.26 Although there is no single thesis that this book develops, there are several arguments that run through the course of the analysis. The first, as has already been noted, is that international administration constitutes a practice distinct in important respects from complex peacekeeping and post-conflict peacebuilding. One must not be pedantic or dogmatic in drawing too sharp a distinction between these activities—after all, they also have a good deal in common— but to elide the differences is to obscure the fact that international territorial administration is in fundamental ways a political enterprise and that, to succeed, a transitional authority cannot be indifferent to political outcomes. Some may believe that it is possible in this context to devise 'technical arrangements' that are 'divorced from politics'27; indeed, the United Nations and other international organizations have only rather slowly come to appreciate the need to navigate with the aid of a political compass. Yet even then there remains uncertainty about the nature of the political engagement that is required and how that engagement should be balanced against impartiality, on the one hand, and self-determination, on the other, among other competing norms.28 26

Partial exceptions include Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004), and Ralph Wilde, The Administration of Territory by International Organizations (Oxford: Oxford University Press, 2005). 27 This view is expressed by a senior OSCE official in Arthur C. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century (Oxford: Oxford University Press, 2002), 62. 28 See the special issue of Global Governance, 10/1 (2004), on 'The Politics of International Administration', Mats Berdal and Richard Caplan (eds.).

Introduction

13

A second argument that informs this study is that despite many of the problems arising from both the design and implementation of transitional administrations—some of them very serious—international administration has generally made a positive contribution to the mitigation of conflict in the territories where it has been established, thus removing a threat to international peace and helping to improve the lives of the vast majority of the territories' inhabitants. This book takes issue, then, with the view that these initiatives are fundamentally flawed, misguided, or ill-conceived.29 Even in BiH, where the provisions of the internationally brokered peace settlement militate against success and where important early opportunities were missed, meaningful progress has been made towards the consolidation of peace. Of course the price for peace in each of these cases has been very high: BiH received nearly seven times the external assistance per capita than did Germany in its first two post-conflict years.30 And one cannot know how sustainable peace will be in the long term after the international authorities have withdrawn. Indeed, as the operations discussed in this volume are all either recently completed or still works in progress, any conclusions drawn about them must perforce be tentative. Moreover, if these operations are judged by more demanding criteria—insofar as their objectives extend beyond peace maintenance to encompass, in some cases, state-building—then the judgement may be less unequivocal. Third, it is argued here that success, where it has occurred, owes as much if not more in some cases to contextual factors than to operational practices. Where, for instance, parties to a conflict either face or have suffered a decisive defeat, as the Serbs did in Croatia but not in BiH, they will have fewer opportunities to resist the authority of an international administration, and may even welcome it as their best hope of securing some measure of protection and representation in a successor regime. Favourable objective conditions can even mitigate 29

See, for instance, David Chandler, Bosnia: Faking Democracy after Dayton (London: Pluto Press, 1999); Noam Chomsky, A New Generation Draws the Line: Kosovo, East Timor and the Standards of the West (London: Verso, 2000); and Patrick Clawson, 'International Intervention Forces in Intercommunal Conflicts: Lessons for the Middle East', Policy Focus No. 45, The Washington Institute for Near East Policy, September 2003,17-26. 30 Per capita assistance to Germany during the first two post-conflict years was little more than $200; per capita assistance to Bosnia and Herzegovina during the same period of time was $1,400. Figures (in constant dollars) from James F. Dobbins, 'America's Role in Nation-Building: From Germany to Iraq', Survival, 45/4 (2003-04), 96.

14

Introduction

the effects of poorly planned and under-resourced operations, as they did in East Timor, because of the local population's overwhelming support for the aims of the mission. Although the tendency of international policy-makers is to view the 'facts on the ground' that form the parameters of an operation as a given constraint, the extent to which outside powers shape the objective conditions is sometimes much greater than imagined. After all, outside powers are often involved in the negotiations to reach a settlement or may be intervening parties in the conflict itself. The contextual factors, then, may be partially of their own making—but only partially. The size of the territory, the disposition of the local population, the cooperation of regional powers, and other factors that have a bearing on the success of an operation may not be malleable at all. International territorial administrations are exceptional undertakings. The geopolitical circumstances that have given rise to these operations have been unique and one cannot know whether there will be the political will to establish many or any more operations of this kind in the future. Indeed, despite the trends explored in this book, there is a deep reluctance in the international community to become involved in the business of administering the territories of other states and other peoples, and—among Third World states in particular— there is concern that the development agenda may be sidetracked by such costly initiatives.31 There is also deep-seated anxiety in many countries about facilitating big-power interventions worldwide. Still, internal conflicts persist, further state fragmentation would appear to be on the horizon, and the prospect of more international interventions certainly cannot be ruled out. It is reasonable to expect, therefore, that a role will be sought for the United Nations and other multilateral agencies in the administration of war-torn territories, as in Afghanistan and Iraq following the US-led military campaigns in those two countries, even if that role is a limited one.32 The failure to reflect broadly on recent experiences and to draw what lessons one can from 31

These concerns are reflected in Refashioning the Dialogue: Regional Perspectives on the Brahimi Report on UN Peace Operations (New York: Center on International Co-operation and International Peace Academy, 2001). 32 In Afghanistan, the UN Assistance Mission (UNAMA) was established in March 2002 to facilitate a political transition following the defeat of the Taliban regime. UNAMA is an assistance mission with no operational responsibility for administering any part of Afghanistan. Iraq has been under US-led military occupation and the United Nations has had even more modest responsibilities. In both cases, however, there have been calls for the Organization to play a greater role in the administration of the territories.

Introduction

15

them will leave states and organizations ill-prepared for the tasks of administration in any such missions that may be established in the future. It is hoped that this book can contribute to an understanding of these challenges and make it possible for governmental and nongovernmental bodies to play a more effective role in the rule and reconstruction of war-torn societies.

1

Forms of International Administration

The term 'international administration' embraces a wide range of experiences, historical and contemporary. In its present guise it is not a formal practice or institution in the way that UN trusteeship or even UN peacekeeping is. It has no specific UN Charter mandate, and there is no dedicated bureaucracy to support it, although all recent operations—United Nations or otherwise—have enjoyed the backing of the Security Council, and various UN departments, regional bodies, and state ministries have committed full-time resources to the maintenance of these operations, including the secondment of sometimes highly experienced personnel. While not entirely without precedent, international administration is an innovation, and an ad hoc one at that. In spite of this, one can talk about forms of international administration—operational categories, mandates, and structures—in much the same way as one talks about these same aspects of peace operations. This chapter examines some of the more salient features of contemporary international administrations. The focus here is on the distinguishing characteristics among these experiences rather than their relationship to kindred institutions such as 'protectorates' and 'trusteeships'. While these two terms, in particular, are sometimes used interchangeably with 'international administration', that would seem only to support James Crawford's observation that 'terminology in this field tends to be confused'.1 'Trusteeship' has very precise meaning, as defined by Chapter XII of the UN Charter, which limits the use of that institution to certain non-self-governing territories administered in conformity with the stated purposes of the UN-established international trusteeship system and under the supervision of the 1

James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979), 186.

Forms of International Administration

17

UN Trusteeship Council, as we will see briefly below. 'Protectorate' has had much more varied application historically, and while it may well be that international administration is really protection in a new guise, as Ralph Wilde suggests provocatively,2 it is also true that the evolution of legal and political norms in the twentieth century has created unique circumstances and constraints for the functioning of international administrations that distinguish them from many earlier practices—not the least being the multilateral character of today's administrations.

Operational Categories One can usefully distinguish the various types of contemporary international administration on the basis of the degree of authority that the international community assumes in each case.3 It is possible to imagine these different operations as lying along a continuum, with supervision at one end and direct governance at the other, the operations between the two exhibiting varying magnitudes of control. The UN Transitional Authority in Cambodia (UNTAC) is a good example of international administration as supervision. UNTAC was established in February 1992 to implement the Paris Accords that sought to end the twenty-one-year conflict among the four Cambodian factions.4 As originally conceived—and in striking departure from previous peacekeeping experiences—the United Nations was to exercise direct control over five critical areas of each faction's administrative structures (defence, foreign affairs, finance, information, and public security) for a period of eighteen months, with the aim of establishing a 'neutral political environment conducive to free and fair general elections'.5 The United Nations had other tasks as well, but these were more consistent with expanded notions of peacekeeping. In the event, 2 Ralph Wilde, 'From Danzig to East Timor and Beyond: The Role of International Territorial Administration', American Journal of International Law, 95/3 (2001), 602. For a discussion of protectorates, see Crawford, The Creation of States in International Law, ch. 7. 3 This categorization draws on Jarat Chopra's work on peace maintenance. See, in particular, his Peace-Maintenance: The Evolution of International Political Authority (London: Routledge, 1999). Chopra employs the terms 'assistance', 'partnership', 'control', and 'governorship' to describe the range of authority. 4 SC Res 745 (1992), adopted on 28 February 1992, established the mission. 5 Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 23 October 1991, Annex 1, Section B, para. 1, UN Doc A/46/608-S/23177, 30 October 1991.

18 Forms of International Administration the United Nations never did exert direct control. A host of problems forced the Organization to scale back its ambitions and accept a more modest role in supervising and monitoring the four factions' activities. These problems included insufficient resources on the part of the United Nations; the Special Representative's preference for a consensual approach; intransigence by the incumbent Hun Sen government, in particular; and the difficulty of assuming governance functions for a limited period, especially in the administration of justice. Even in this more modest capacity, UNTAC at the time was the most extensive—and expensive—operation that the United Nations had ever launched.6 At the other end of the spectrum, international administration takes the form of direct governance, as exemplified by three operations: the UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES); the UN Interim Administration Mission in Kosovo (UNMIK); and the UN Transitional Administration in East Timor (UNTAET). The first (and smallest) of these, UNTAES, was established in January 1996 for a period of twelve months, and then extended for another twelve months, to oversee the peaceful restoration to Croatia of the last remaining Serb-held region of this former Yugoslav republic, whose bid for independence in 1991 had precipitated a bloody civil war.7 It was only the second time in the UN's history that the Organization has been given a mandate to administer a disputed territory, the first having been in 1962-63 with the United Nations Temporary Executive Authority (UNTEA) in West New Guinea (West Irian), although governance missions had also been envisioned for the Organization in Trieste (1947), Jerusalem (1947), and Namibia (1967) and the United Nations also exercised extensive administrative prerogatives in the Congo between 1960 and 1964.8 6

Janet E. Heininger, Peacekeeping in Transition: The United Nations in Cambodia (New York: Twentieth Century Fund Press, 1994), 6; and Mats Berdal and Michael Leifer, 'Cambodia', in James Mayall (ed.), The New Interventionism 1991-1994: United Nations Experience in Cambodia, former Yugoslavia and Somalia (Cambridge: Cambridge University Press, 1996), 25-58. 7 SC Res 1037 (1996), adopted on 15 January 1996, established the mission. 8 On UNTEA see Rosalyn Higgins, United Nations Peacekeeping, 1946-1967: Documents and Commentary: Vol. 2, Asia (Oxford: Oxford University Press for the Royal Institute of International Affairs, 1969-81), 101-6. On other plans for UN governance, see Steven R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (New York: St Martin's Press, 1994), 97-116.

Forms of International Administration

19

The authority given to UNTAES was extensive: the Basic Agreement signed by the Croatian government and the local Serb leadership, which formed the basis of the enabling resolution, called upon the Security Council to establish an administration to 'govern' the region pending its restoration to Croatia.9 The Secretary-General's Special Representative in turn conceived a regime in which the 'transitional authority alone would have executive power and he would not have to obtain the consent of either the [transitional] council or the parties for his decisions'.10 In contrast to UNMIK and UNTAET, however, UNTAES did not perform many of the tasks of administration itself; it allowed the Serbs to continue to administer the territory, overriding their decisions when necessary, as Zagreb gradually extended its sovereign authority. Both UNMIK and UNTAET were established in 1999, following military conflicts that produced acute administrative vacuums in their wake. NATO's eleven-week bombing campaign against the Federal Republic of Yugoslavia (FRY), which aimed to weaken the Yugoslav forces engaged in the violent repression of Kosovo Albanians, precipitated a complete withdrawal of the FRY authorities from the province, leaving no functioning public administration at all. The problem was compounded by the fact that vital institutions, such as health and education, had suffered from years of neglect and, more recently, the scorched-earth tactics of the departing Serbs.11 Local insurgents, it was feared, would exploit the vacuum in an effort to seize political control, and the security of all people living in Kosovo— whether Serbs, Turks, Roma, or Albanians—would be at risk. UN Security Council Resolution 1244 effectively established Kosovo as a UN protectorate, with NATO-led military forces providing an 'international security presence' and UNMIK performing all basic civil administrative functions.12 9

The Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium (also known as the Erdut Agreement) was signed on 12 November 1995. For the text of the agreement, see UN Doc S/1995/951, 15 November 1995 (Annex). 10 See Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), UN Doc S/1995/1028, 13 December 1995, para. 14. The reference is to the 'transitional council', an advisory council made up of one representative each of the government of Croatia, the local Serb population, the local Croat population, and other local minorities and chaired by the transitional administrator. 11 For details of the post-war conditions, see Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/l 999/779,12 July 1999. 12 SC Res 1244 (1999) was adopted on 10 June 1999.

20 Forms of International Administration In East Timor, similarly, UNTAET was given full responsibility for the administration of this former Portuguese and then Indonesianoccupied territory. The mission was established in response to the crisis conditions that emerged there after the 'popular consultation' held on 30 August 1999, in which an overwhelming majority of East Timorese—78.5 per cent of the voting population—rejected autonomy within Indonesia and opted for independence. In reaction to the ballot results, the Indonesian armed forces and locally organized militia unleashed a devastating campaign of violence that left hundreds dead, displaced more than three-quarters of the population, and destroyed some 70 per cent of the territory's physical infrastructure.13 On 15 September, the UN Security Council authorized the deployment of the Australian-led International Force in East Timor (INTERFET) to restore peace and security in East Timor and then, on 25 October, established UNTAET to administer the territory until it achieved independence on 20 May 2002.14 UNTAET effectively constituted the legal sovereign in East Timor, its authority arguably exceeding that of UNTAES and of UNMIK in Eastern Slavonia and Kosovo. Between the poles of supervision and direct governance are operations that exhibit varying degrees of control over the territory in question. The international administration of Bosnia and Herzegovina (BiH), which has no formal name, was established as part of a complex peace process that culminated in the 1995 signing of the General Framework Agreement for Peace in Bosnia and Herzegovina, better known as the Dayton Accord. The situation was unlike those in Kosovo and East Timor, but much like that in Cambodia: the three wartime regimes (Serb, Croat, and Muslim or 'Bosniac') remained intact after the war, and the international community, in the embodiment of a High Representative (HR), was empowered merely to 'monitor' implementation of the peace settlement and to 'promote' compliance with it, relying largely on the cooperation of the local parties to fulfil their obligations. Over time, however, the HR has been given more 13

Figures from Jarat Chopra, "The UN's Kingdom of East Timor', Survival, 42/3 (2000), 27. See also Report of the Secretary-General on the Situation in East Timor, UN Doc S/l999/1024, 4 October 1999. 14 SC Res 1272 (1999), adopted on 25 October 1999, established the mission. 15 For instance, UNTAET alone among these three missions exercised effective treaty-making powers. See Jarat Chopra, 'Introductory Note to UNTAET Regulation 13', International Legal Materials, 36 (2000), 936. 16 The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. II.l(a)(b). The Agreement was initialled in Dayton on 21 November 1995 and signed in Paris on 14 December 1995.

Forms of International Administration

21

authority, including the power to dismiss local officials deemed to be obstructing implementation of the accord and to issue interim laws if the local parties are 'unable' (that is, unwilling) to do so. Within the framework of the Office of the High Representative (OHR), a separate administration for the disputed area of Brcko within BiH was established in February 1997 under the authority of an international 'Supervisor' enjoying powers more sweeping initially than those oftheHR. 17 In the first instance, then, what distinguishes these operations from one another is the degree of authority they possess, ranging from supervision to direct governance. On the other hand, what distinguishes all of them from peacekeeping is the scope of their interest in, if not actual responsibility for, the functioning of a territory or state. Even UNTAC, limited though its mandate ultimately was, concerned itself with aspects of governance that lie outside the boundaries of peacekeeping, however broadly conceived. Thus, while the authority vested in these operations differs, they share a common preoccupation with governance of a comprehensive nature. Finally, these are all also international operations—multilateral, authorized or sanctioned by the United Nations, and often UN-run.

Operational Aims and Contextual Factors If international administrations can be distinguished from one another in terms of the authority they possess, they are further distinguished by their operational aims and the contextual factors, or facts on the ground, that establish the framework of a mission. These two elements, together with the authority at an administration's disposal, can have significant bearing on the ease or difficulty of implementation, and the success of an operation overall. This is as true of peacekeeping as it is of international administration. All operations, even those of indefinite duration, envisage an end state. How well defined that end state is, however, can vary significantly. In the case of UNTAES, it was clear from the outset that Eastern Slavonia would be returned to Croatia within a prescribed period of time. It was also clear that East Timor would gain independence 17

The powers of the Brcko Supervisor are specified in the Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area Award of 14 February 1997 and Final Award of 5 March 1999, both available at www.ohr.int/ ohr-offices/brcko under 'Brcko Arbitration'.

22 Forms of International Administration relatively soon. Indeed, in both cases the principal objective of the operation was to attain a specified status for the territory which all parties concerned had accepted already. UNMIK's aims, on the other hand, have been ambiguous, reflecting the international community's own uncertainty about the future status of Kosovo. In addition to assuming full interim administrative responsibility for the territory, UNMIK has been mandated to promote 'substantial autonomy and self-government' and to facilitate a political process to determine Kosovo's future status, without, however, undermining the sovereignty and territorial integrity of Yugoslavia of which Kosovo is a part. 8 It is as if, Timothy Garton Ash observes, the United Nations had as its objectives Virginity and motherhood combined'.19 Fearing the consequences of further state fragmentation in the Balkans, the international community has been decidedly cool towards the one option—independence—that ethnic Albanians, the vast majority of the population, favour. While Kosovo Albanians recognize that they owe their freedom to the NATO states that opposed the repressive Belgrade regime and though they have welcomed the UN administration for institutionalizing their autonomy, the lack of clarity about the end state has sometimes limited Albanian cooperation, encouraged the Albanians to maintain weapons caches, and set the stage for possible confrontation with international authorities in the future. The Kosovo Serbs, similarly, have opposed any policy or decision by the international administration that they have interpreted as likely to contribute towards Kosovo's independence. The ambiguity has also raised questions for the international administration about how to govern Kosovo. In the absence of a clear strategic objective, measures that may seem to be nothing other than pragmatic from one standpoint (e.g. the adoption of the German mark and then the euro as Kosovo's official currency), may 18

The relevant UN Security Council resolutions affirm the 'commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia' or use similar language to that effect. 19 Timothy Garton Ash, 'Anarchy & Madness', New York Review of Books, 10 February 2000, 48. 20 The outbreak of violence across Kosovo in mid-March 2004 that left nineteen dead, 954 wounded, and more than 4,000 displaced, most of them Serbs, was thought to be a symptom of Albanian frustration and anxiety arising from continued uncertainty about Kosovo's future. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2004/348, 30 April 2004, para. 3, and Misha Glenny, 'The UN and NATO are Failing Kosovo', International Herald Tribune, 22 March 2004.

Forms of International Administration

23

from another standpoint be seen to be prejudicial to the final status determination.21 End state uncertainty has handicapped the operation in another respect. As long as Belgrade remains the formal sovereign authority in Kosovo, no international financial institution has been able to lend to Kosovo.22 Nor have any but the most fearless private investors been willing to risk their capital there—especially by buying state- or socially-owned enterprises whose ownership cannot be guaranteed.23 Without loans or major private investment, Kosovo has been forced to rely principally on international aid, overseas remittances, and some local taxes. These sources of revenue do not offer a basis for sustained economic development; moreover, depressed economic conditions can be a breeding ground for further violence—as well as smuggling, prostitution, and drug-trafficking—thus undermining the very goals that UNMIK is seeking to achieve. Finally, because of its status Kosovo has also been unable to participate in various regional development initiatives that are reserved for sovereign states only, such as the European Union's Stabilization and Association process (SAp)—with its prospect for accession to the European Union—although the European Union has sought to compensate with the establishment of unique assistance programmes for Kosovo. In BiH, finally, lack of clarity arises not so much from end state uncertainty—the international community's commitment to the sovereignty and territorial integrity of BiH is unambiguous—but from the difficulty of implementing such a challenging and problematic agenda. In many respects BiH can be viewed as an extraordinarily ambitious state-building project where success is elusive and, as a result, international goals often lack precision. For instance, how far does one persist in seeking to effect the return of refugees and displaced persons to their homes of origin in a hostile environment? Can attainment of 'the highest level of internationally recognized human rights and fundamental freedoms', as stipulated by the Dayton Accord, 21

UNMIK Administration Direction No. 1999/2 of 4 October 1999 established the German mark as the 'designated currency'; it was replaced by the euro with Administration Direction No. 2001/24 of 21 December 2001. 22 United Nations Mission in Kosovo, Department of Reconstruction (EU Pillar), 'Kosovo 2001-2003: From Reconstruction to Growth', Pristina, December 2000,9. 23 Author interviews with World Bank officials. See also International Crisis Group, 'Kosovo Report Card', ICG Balkans Report No. 100, 28 August 2000, 35-8.

24 Forms of International Administration ever be achieved?24 How much 'fracturation' can a state tolerate and still be functional? Determinations of progress turn on answers to these and related questions. Operational aims, then, can have implications for the ease or difficulty of implementation. But contextual factors are important, too. If propitious, they can render even the most challenging operations manageable. In the case of UNTAET, for instance, despite the clarity of the projected outcome, the United Nations encountered enormous difficulties in administering East Timor initially, largely because the United Nations was ill-prepared for the magnitude of the crisis and the rapid deployment it necessitated. These difficulties were mitigated, however, by the very favourable conditions that existed at the outset of the operation. The local population for the most part welcomed the United Nations and supported the mission's aims; the Indonesian armed forces and local militia had withdrawn across the border, making it possible to provide reasonable security; and there was only one interlocutor—the National Council of Timorese Resistance (CNRT)—that the international community had to negotiate with initially, as opposed to numerous, competing factions.25 Similarly in Eastern Slavonia, one of the most fiercely contested battlegrounds of the Yugoslav wars, something that would have been an impossible task in the recent past—the peaceful re-absorption of Serb-held territory into Croatia—was made easier by the objective conditions that obtained there before the establishment of the UN administration. In two bold military offensives (Operation Flash in May 1995 and Operation Storm in August 1995), Croatia had regained possession of other Serb-held territories, and by the autumn of 1995 was threatening to recapture Eastern Slavonia, the last Serb-held enclave, in the same manner. Meanwhile Belgrade, eager to improve its relations with the West, showed no willingness to come to the defence of the Croatian Serbs. Under the circumstances, the Serbs, who had resisted Croatian authority for four years, concluded that they had little choice now but to negotiate a settlement for limited autonomy with Zagreb and to cooperate with the United Nations, whose operation was seen to offer them the best opportunity to safeguard their interests.26 24

The General Framework Agreement for Peace in Bosnia and Herzegovina, 25 Annex 6, Art. I. Chopra, "The UN's Kingdom of East Timor', 28. 26 See Anthony Borden and Richard Caplan, 'The Former Yugoslavia: The War and the Peace Process', in SIPRI Yearbook 1996 (Oxford: Oxford University Press for SIPRI, 1996), 204-10.

Forms of International Administration

25

By contrast, initial conditions in BiH were not at all conducive to fulfilling the aims of the operation there. None of the warring parties was satisfied with the outcome of the Dayton negotiations, much of which had been conducted over their heads and behind their backs.27 And the absence of a decisive military victory by any of the warring parties constrained the architects in the formulation of treaty terms that all of them would accept. As a result, a highly unstable compromise was achieved that sought to satisfy both the separatist tendencies of the Bosnian Serb leadership and the integrationist aspirations of the Bosniac and, to a lesser degree, Croat leadership by establishing a weak federal state consisting of separate national entities: the (Bosniac-Croat) Federation of Bosnia and Herzegovina and the (Serb) Republika Srpska (RS).28 Moreover, the constitutional requirements for consensus that underpin the work of the Parliamentary Assembly and the Presidency—requirements designed to protect the 'vital interests' of the ethnic parties—allow the more intransigent elements among them to thwart the effective functioning of the central government.29 Similar requirements for consensus, it is worth noting, contributed to the collapse of the Yugoslav federation in the 1980s.30 The regional environment is also an important contextual factor. In Cambodia, the support of regional states was crucial to successful implementation of the mission's mandate. Their commitment to the holding of elections ensured that the difficulties that arose—some very serious, including the failure to disarm the local factions—did not derail the operation.31 In Kosovo, similarly, the downfall of Yugoslavia's President Slobodan Milosevic in October 2000 improved the cooperation of the Belgrade authorities with the UN mission, which in turn encouraged Kosovo Serbs to participate in the political life of the provisional government. By contrast, Bosnian Croat separatism received active support and encouragement from Zagreb until the death of Croatia's President Franjo Tudjman in December 1999 27 See Elaine Scholino, Roger Cohen, and Stephen Engelberg, 'Balkan Accord: The Play-by-Play', New York Times, 23 November 1995; and Richard Holbrooke, To End A War (New York: Random House, 1998). 28 Constitution of Bosnia and Herzegovina, Art. 1(3). The Constitution is Annex 4 of the Dayton Agreement. 29 Constitution of Bosnia and Herzegovina, Art. IV(3) and Art. V(2). 30 Lenard J. Cohen, Broken Bonds: Yugoslavia's Disintegration and Balkan Politics in Transition, 2nd edn. (Boulder, CO: Westview Press, 1995), chs 6 and 7. 31 Heininger, Peacekeeping in Transition, 133.

26 Forms of International Administration and the subsequent defeat of his Croatian Democratic Union (HDZ) at the polls.32 Size also matters. It is no coincidence that all of the international administrations established in the past decade have been on relatively small territories. The small size of the territories in question has made it easier, or so it has seemed, for international organizations to manage the complex processes of transitional rule. When, therefore, the United Nations was asked to step up to the challenge of administering Afghanistan following the collapse of the Taliban regime in autumn 2001, the United Nations offered proposals for a 'light footprint'—an assistance mission—as opposed to a full-fledged territorial administration. Notwithstanding the apparent success of the United Nations in Kosovo and East Timor, Afghanistan was thought to be too large, its terrain too forbidding, and its politics too unstable, to be able to replicate the experience.33 Some circumstances, therefore, appear to be more favourable to the effective functioning of international administration than others. Where the operational aims are well defined and attract broad support among the local population, or where the contextual factors limit the opportunities for resistance and offer the cooperation of regional actors, the administrative authority enjoys distinct advantages. There are, of course, many other factors that contribute to the success of an operation—not the least of which is the design of the administration, the resources made available to it, and the conduct of the administrative authority on the ground, including the leadership capabilities of the transitional administrator (TA). All the same, if the authority is not endowed with the right objective conditions, it will be constrained in what it can achieve. The tendency of policy-makers is to view the facts on the ground that form the parameters of an operation as a given constraint, and many of them are. Yet international administration, as noted earlier, often follows on from prior and extensive international engagement in a region. The extent to which outside powers can shape the objective conditions is therefore sometimes greater than imagined. For instance, it was pressure from the Clinton administration that was largely responsible for bringing to a halt the Bosniac-Croat offensive in 32

Ron Synovitz, '2001 In Review: Croatia Boosts Ties With West, Faces Division Over War Crimes', Radio Free Europe/Radio Liberty Weekday Magazine, 13 December 2001, available at www.rferl.org/nca/features/2001/ 12/13122001091329.asp. 33 John G. Ruggie, 'Why the U.N. Is No Quick Fix', Washington Post, 26 October 2001.

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27

October 1995—an offensive that the administration initially supported and which by early October had reduced Serb control of Bosnian territory from 70 to 50 per cent. Had the Bosniac-Croat forces been allowed to rout the Bosnian Serbs, as they seemed prepared to do, the terms of the peace settlement would perhaps have been very different. However, concerned that the continued offensive would drive out the Serbs and produce a new refugee crisis, and eager to avoid an intensification of hostilities in the run-up to a US presidential election, the Clinton administration sought to end the fighting and achieve a diplomatic settlement.34 To the minds of many Western leaders, moreover, a stable peace in BiH required the establishment of a rough parity between the antagonists, albeit (arguably) at the price of compromising the efficacy of the post-conflict regime that the international community was to create. Even Richard Holbrooke, the US envoy chiefly responsible for negotiating the Dayton Agreement, would later question whether the price paid was not too high: 'Had we known then that the Bosnian Serbs would have been able to defy or ignore so many of the key provisions of the peace agreement in 1996 and 1997, the negotiating team might not have opposed such an attack [on Ban] a Luka].'35 External actors, then, are sometimes in a position to mould the strategic and political backdrop to an international administration. But often in a civil conflict states are reluctant to help one side achieve a decisive victory even though, as the work of Roy Licklider suggests, most civil wars are resolved only by the outright victory of one party rather than through negotiated settlement.36 Thus did France and Britain oppose US proposals repeatedly to arm the Bosnian government during the war (although all three states were willing to turn a blind eye to Croatian military assistance). By contrast, the NATO intervention against Yugoslavia led to the defeat of the Serb forces, which made it possible for Kosovo Albanians to achieve the autonomy that had eluded them at the negotiating table. Of course a strategy of picking winners—as it may appear—carries its own risks and, moreover, even when states have been willing to intervene, they have often given insufficient consideration to what should transpire in the 34

Holbrooke (To End A War, 166-7) claims to have urged the Bosnians and Croatians to continue the offensive and only to refrain from taking Banja Luka, which would have precipitated the mass flight of an estimated 100,000 Bosnian 35 Serbs. Ibid., 166-7. 36 Roy Licklider, "The Consequences of Negotiated Settlements in Civil Wars, 1945-1993', American Political Science Review, 89/3 (1995), 681-90.

28 Forms of International Administration aftermath of an intervention. (The Russians certainly grasped the point, which underlay their quick deployment to Pristina airport following the cessation of hostilities in June 1999 in the hope of establishing a zone of influence in Kosovo.)37 Such lack of far-sightedness, we will see, can have serious consequences for the operational efficiency of international administrations.

Historical Precedents As noted above, unique though the international administration of war-torn territories is from a contemporary standpoint, these operations are not entirely without precedent. Throughout the twentieth century, there have been internationally administered territories of various kinds. One of the earliest 'internationalized territories', as these entities are sometimes referred to generically, was the international operation in Albania that, following the Balkan Wars of 1912-13, established Albania as a neutral country under the administration of the major European powers (Austria-Hungary, France, Great Britain, Italy, Russia, and Turkey).38 Intent on denying any single state control of this strategic area, the six powers, in May 1913, deployed a multinational military force to Shkodra in the north of Albania that soon assumed broad administrative responsibility for the wider region, leading to the establishment of a municipal council under the supervision of international officers, a medical and sanitary council to stem typhoid and smallpox, a police force to patrol the area, a court system, and a port authority. These same powers then established an International Control Commission, consisting of one representative from each of their countries and one from Albania, which, together with the Prince of Albania, was intended to constitute the responsible Albanian authority for ten years. The Commission ceased to be effective, however, after the outbreak of the First World War, and the country was soon occupied by regional powers again. Under the League of Nations, a number of territories were also placed under international administration of one form or another. These were not necessarily war-torn territories but they were all territories of strategic importance in respect of war. The Free City of Danzig (now Gdansk) was the first territory to be administered 37 Robert G. Kaiser and David Hoffman, 'Secret Russian Troop Deployment Thwarted', Washington Post, 25 June 1999. 38 Erwin A. Schmidl, 'The International Operation in Albania, 1913-14', International Peacekeeping, 6/3 (1999), 1-10.

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by the League, from 1919 to 1939.39 A German enclave on Poland's Baltic coast that had been part of West Prussia before the First World War, Danzig was placed 'under the protection' of the League by the terms of the Treaty of Versailles.40 The League, represented by a High Commissioner, had three principal responsibilities: (1) to agree a constitution for Danzig drawn up by 'duly appointed representatives of the Free City' and to guarantee the constitution; (2) to deal with any disputes arising between Danzig and Poland, which by a separate treaty (the Treaty of Paris of 9 November 1920) was to enjoy special rights, including access to or control over the waterways, port, and railroads of the Free City; and (3) to provide against any discrimination within the Free City of Danzig to the detriment of citizens of Poland and other persons of Polish origin or speech.41 While the League did not govern the territory (the Free City had its own administration), the League had the authority to approve amendments to the constitution and the High Commissioner could veto treaties he found to be incompatible with the interests of the territory.42 The League was effective on behalf of Danzig but, as with other aspects of the First World War settlements, it was not able to prevent first Nazi control and then German occupation of the territory, although for a while it was able to offer a greater measure of protection to minorities than was available in Germany. Following the Second World War, Danzig was united with Poland. More ambitious still was the League's administration of the Saar Basin from 1922 to 1935.43 Annexation of the Saar Basin—a strategically important region because of its rich coal mines—was sought by France after the First World War but Britain and the United States refused to accede to French demands. Instead it was decided that the League, through a five-member commission chosen by the League Council, would administer the territory for a period of fifteen years, during which time France would be allowed to exploit the coal mines as partial payment for the total reparations due from Germany for the damage resulting from the war. The Treaty of 39

F. P. Walters, A History of the League of Nations (London: Oxford University Press, 1960), ch. 9; and Crawford, The Creation of States in International Law, 160-3. 40 Treaty of Versailles, Art. 102, Consolidated Treaty Series, available at 41 www.yale.edu/lawweb/avalon/imt/menu.htm. Ibid., Art. 104. 42 Ratner, The New UN Peacekeeping, 94. 43 This section draws extensively from Ratner, The New UN Peacekeeping, 90-4.

30 Forms of International Administration Versailles granted the Commission 'all the powers of government hitherto belonging to the German Empire, Prussia, or Bavaria, including the appointment and dismissal of officials, and the creation of such administrative and representative bodies as it may deem necessary'.44 After fifteen years of administration, the League was to organize a plebiscite, offering the population of the territory the choice of union with France, union with Germany, or the continuation of League administration. The League was not bound to respect the wishes of the inhabitants in deciding on the sovereignty of the territory; it was only required to take their wishes into consideration. It would have been difficult, however, to ignore the preferences of the more than 90 per cent of inhabitants who voted ultimately for reunification, and on 1 March 1935 the territory was returned to Germany. Under its authority, the Commission administered the full range of governmental functions for the territory. It established civilian bodies to replace the military organization that France had put in place; it exercised budgetary authority; it organized elections to local assemblies; it issued regulations pertaining to a wide range of issues—from the police and revenue collection to public property and transportation— and it dealt with strikes by public officials and coal workers.45 While the Commission consulted with the Saar leaders and legislative bodies periodically, it did not feel bound by their preferences although its own work was reviewed by the League Council, which in principle could, and on rare occasion did, intervene in the Commission's affairs. Under the League's administration, public services were restored, civil institutions renewed, and economic life revived. On balance the experience was successful, offering, in Steven Ratner's view, 'a glimmer of hope for international governance as a means of resolving territorial disputes'.46 Finally, the League administered the Colombian town and district of Leticia from 1933 to 1934 following its occupation by Peruvian irregulars with the backing of the Peruvian government seeking resolution of a wider border dispute with Colombia.47 A League commission exercised plenary authority for nearly one year, during which time the Peruvian irregulars withdrew, a negotiated settlement was achieved, and the territory restored to Colombia. Under its administration, the Commission noted with some pride, the local population increased 44 45

47

Treaty of Versailles Part HI, Section IV, Annex, Art. 19. 46 Ratner, The New UN Peacekeeping, 92. Ibid., 93. Wilde, 'From Danzig to East Timor and Beyond', 587-8.

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fourfold, damaged infrastructure was repaired, a hospital and three schools were built, and not a single case of violence was reported.48 The United Nations itself has had one earlier experiment with direct territorial administration, with its administration of West New Guinea (West Irian) in 1962-63. A part of the Dutch East Indies claimed by Indonesia since its independence in 1949, West New Guinea was occupied by Indonesia in May 1962. Negotiations with the Netherlands ensued and under the terms of a UN-brokered settlement, it was agreed that the UN Temporary Executive Authority (UNTEA) would be established with plenary authority to administer the territory from 1 October 1962 to 1 May 1963, at which point the United Nations would transfer responsibility to Indonesia. Indonesia was then required to consult with the indigenous population on whether it wished to remain with Indonesia or to sever its ties but Indonesia was not obliged to do so until the end of 1969.49 Rather than risk rejection, Indonesia decided to forgo the conventional 'one-man one-vote' formula that the United Nations had recommended and chose instead to consult only with 'representative' councils of its own making—a process in which the United Nations, to its discredit, quietly acquiesced.50 The vote, predictably, was unanimous in favour of remaining with Indonesia. Other relevant administrative arrangements have been the League's mandates and the UN's trusteeship system.51 Both provided for the administration of certain non-self-governing territories—former colonies for the most part—by 'developed' states acting on their behalf as trustees. In the case of the League, the mandates system was employed for the administration of the former colonies and dependent territories of the Ottoman and German empires in the Middle East, 48

Walters, A History of the League of Nations, 540. Thomas M. Franck, Nation Against Nation (New York: Oxford University Press, 1985), 79. 50 For a critical assessment, see John Saltford, The United Nations and the Indonesian Takeover of West Papua, 1962-1969 (London: Routledge Curzon, 2002). 51 On the Mandates and Trusteeship systems, see Quincy Wright, Mandates under the League of Nations (Chicago: University of Chicago Press, 1930); Ramendra Nath Chowdhuri, International Mandates and Trusteeship Systems: A Comparative Study (The Hague: M. Nijhoff, 1955); James N. Murray, The United Nations Trusteeship System (Urbana, IL: University of Illinois Press, 1957); George Thullen, Problems of the Trusteeship System: A Study of Political Behavior in the United Nations (Geneva: Droz, 1964); and Neta C. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (Cambridge: Cambridge University Press, 2002), chs 6 and 7. 49

32 Forms of International Administration Africa, and the Asia-Pacific region—an alternative to proposals at the time that called for the outright annexation of these territories.52 As described by Art. 22 of the Covenant of the League of Nations, the populations of the mandated territories were 'peoples not yet able to stand by themselves under the strenuous conditions of the modern world', the tutelage of whom would be entrusted to 'advanced nations who by reason of their resources, their experience, or their geographical position can best undertake this responsibility'.53 Administration of the territories was conducted by the designated Mandatory, under the supervision of the League's Permanent Mandates Commission, with a view towards promoting the well-being and development of these peoples, and led in some cases to independent statehood.54 The United Nations inherited the League mandates that remained after the Second World War and incorporated them into its trusteeship system, to which were added territories detached from enemy states as a result of the war (only the former Italian colony of Somaliland in the event) and territories voluntarily placed under the system by states responsible for their administration.55 A key difference from the League system is the further objective of the UN trusteeship system, notably the 'progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the people concerned',56 although some contend that this aim was implicit in the Covenant.57 Similar to the League arrangements, the General Assembly, assisted by the Trusteeship Council, exercises the supervisory functions of the United Nations with regard to trust territories. The activities of the Trusteeship Council have effectively been suspended, however, since the independence of Palau—the last trusteeship territory—in May 1994. Although East Timor, a Portuguese colony, was designated a non-self-governing territory by the UN General Assembly in I960,58 and was thus a candidate for trusteeship, it never became a trusteeship territory. Portugal only recognized the right of the East Timorese people to self-determination after the change 52

Wright, Mandates under the League of Nations, 26-7. Covenant of the League of Nations, Art. 22(1) and 22(2). 54 Dietrich Rauschning, 'International Trusteeship System', in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Munich: C.H. Beck, 55 1995), 934. Charter of the United Nations, Ch. XII, Art. 77.1. 56 Ibid. Art. 76(b). 57 Crawford, The Creation of States in International Law, 335. 58 GA Res 1542 (XV) of 15 December 1960. 53

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of Portugal's political regime in 1974, and Indonesia occupied the territory the following year. Finally, it is also worth noting the relevance to contemporary experience of the Allied occupation and administration of Germany and Austria in the aftermath of the Second World War. The four occupying powers—Britain, France, the United States, and the Soviet Union—operating first singly and then jointly (among the Western powers), faced many of the same challenges with which international administrations have had to contend more recently, notably the maintenance of public order, the resettlement of refugees and displaced persons, infrastructure rehabilitation and economic reconstruction, and the development of local political institutions.59 Japan, too, came under Allied administration although this was essentially a US administration directed by General Douglas MacArthur, who enjoyed exceptional authority.60

Actors and Structures What all contemporary international administrations have in common—and what distinguishes them from some of the earlier experiences of a similar nature—is the multiplicity of actors involved. Under both the League of Nations mandates system and the UN trusteeship system, a state, a group of states, or the world organization itself could be designated to administer a territory, but it was common practice to appoint a single state to play this role. Thus the United Kingdom administered the British Cameroons, Tanganyika, and Togoland; France the French Cameroons and French Togoland; Belgium Rwanda-Urundi; Australia New Guinea; and New Zealand Western Samoa under both the League and UN systems.61 The exceptions, 59

On the Allied administration(s) of Germany and Austria, see Edward N. Peterson, The American Occupation of Germany: Retreat to Victory (Detroit: Wayne State University Press, 1977); Roy F. Willis, The French in Germany, 1945-1949 (Stanford, CA: Stanford University Press, 1962); Ian D. Turner (ed.), Reconstruction in Post-War Germany: British Occupation Policy and the Western Zones, 1945-1955 (Oxford: Berg, 1989); and William Bader, Austria between East and West, 1945-1955 (Stanford, CA: Stanford University Press, 1966). 60 On the US administration of Japan, see John W. Dower, Embracing Defeat: Japan in the Aftermath of World War II (London: Penguin, 2000); Toshio Nishi, Unconditional Democracy: Education and Politics in Occupied Japan, 1945-1952 (Stanford, CA: Hoover Institution Press, 1982); and Edward M. Martin, The Allied Occupation of Japan (Westport, CT: Greenwood Press, 1972). 61 Rauschning, 'International Trusteeship System', 938-9.

34 Forms of International Administration we have seen, have been the Saarland and Leticia, where the League assumed responsibility for administration of the territories, and West New Guinea/West Irian, which the United Nations administered briefly after the Netherlands' withdrawal from the territory in 1962. In Nauru, additionally, the United Kingdom, Australia, and New Zealand were the administering authorities from 1947 to 1968, but with Australia acting for them. Today the situation is different. In a post-colonial age, it would be politically unacceptable to entrust responsibility for the administration of a territory to a single state, even if elaborate accountability mechanisms were established. Moreover, the costs of administration would likely be too great for a single state to bear. As a result this function is often performed by the United Nations or, in the case of BiH, the Peace Implementation Council (PIC)—an ad hoc coalition of states and organizations operating with the backing of the UN Security Council.62 The broad representative character of these administrative or supervisory bodies lends vital legitimacy to operations of this kind although, as one might expect, some states exert much more influence than others in the context of these multilateral arrangements. The USled administration of Iraq, following its war against Saddam Hussein in 2003, is a notable exception to this pattern of events. Although the United States drew in other states to share the responsibility of administering Iraq, precisely in an effort to confer legitimacy on the interim regime, the dominant role played by a major Western power is one reason why it encountered such fierce local resistance. In all past cases, even where the United Nations has been the administrative authority, the number of other actors involved has been relatively few. In Kosovo, by contrast, four organizations function as co-principals. These are: the Organization for Security and Cooperation in Europe (OSCE), the European Union, the NATO-led Kosovo Force (KFOR), and the United Nations—the last involving a large number of its specialized agencies and departments: the UN High Commissioner for Refugees (UNHCR), the World Food 62

The Peace Implementation Council, made up of fifty-five governments and international organizations, was established by the Peace Implementation Conference on 8 and 9 December 1995. SC Res 1031 (1995) of 15 December endorsed the establishment of the PIC. The PIC works through a Steering Board comprising representatives of Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, the United States, the Presidency of the European Union, the European Commission, and the Organization of the Islamic Conference. See 'Conclusions of the Peace Implementation Conference held at Lancaster House', London, 8-9 December 1995, International Legal Materials, 35 (1996), 223.

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Programme (WFP), the UN Children's Fund (UNICEF), the UN Human Rights Office, the UN Development Programme (UNDP), the World Health Organization (WHO), the Department of Peacekeeping Operations (DPKO), and the Office for the Coordination of Humanitarian Affairs (OCHA), among others. Many other international or regional organizations also play important supporting roles: the World Bank, the International Monetary Fund (IMF), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Committee of the Red Cross (ICRC), the Council of Europe, and the International Labour Organisation (ILO). In addition, many states maintain offices in Kosovo and are very influential players, often giving direction to international policy or undertaking initiatives unilaterally. Scores of non-governmental organizations are active on the ground as well. The reasons for this proliferation of actors are threefold. First, there simply are many more international or regional organizations and agencies now than in the past, and, in the European theatre especially, competition among them means that they are under constant pressure to establish new competences and deny opportunities to potential rivals. Second, in some cases—notably Kosovo and East Timor—no other local public administration or authority existed at the time that could provide even the most basic services, and there were also few local individuals qualified to perform many of them. Hence, there has been a need for the wholesale importation of governmental infrastructures and the provision of training for indigenous administrators. Finally, new sensibilities mean that the international community is now expected to deliver more than transitional authorities did in the past. Environmental protection, the promotion of civil society, and democratic policing are but a few of the new priorities, each requiring skill bases that often only specialized agencies possess. The multiplicity of actors creates problems of coordination similar to those that have handicapped complex peacekeeping operations. But it also has implications for the structure of international administrations. BiH is perhaps the most extreme case: differences among so many external actors resulted in a highly atomized and unwieldy administrative framework, with consequences for the effectiveness of the operation. As Marcus Cox observes: Differences in interest among the different international actors during the Bosnian war have been reflected in a cumbersome international structure in the post-war phase. Early proposals for an international presence powerful enough to take control over reconstruction and institution building

36 Forms of International Administration came to nothing. Mistrust between American and European policy-makers made it impossible to bring the intervention within a single institutional structure.63

Consequently, there is no single, integrated body responsible for administration of the international effort in BiH. Rather, numerous institutions operate autonomously under the general direction of the HR. And just as the HR has had little power as against the local national authorities (at least initially), so he has very limited authority over international agencies. The Dayton Agreement is explicit about this: 'The High Representative shall respect their autonomy within their spheres of operation while as necessary giving general guidance to them about the impact of their activities on the implementation of the peace settlement.'6The HR's role is merely to 'coordinate' the activities of the civilian organizations and agencies.65 Donor states, multilateral aid agencies, and non-governmental organizations may thus set their own objectives and pursue their own strategies, advised but not directed by the HR. What this has meant, in the early days especially, is a lack of policy coherence among the major actors, even to the extent of agencies occasionally working at cross-purposes. For instance, disagreements over the appropriateness of political conditionality as an instrument for promoting compliance with the Dayton Accord has sometimes set the World Bank apart from its partner agencies. Constrained by institutional mandates, the Bank has been reluctant to be interventionist in support of what it perceives to be overtly political objectives.66 In Mostar in 1996, for instance, the Bank ignored European Union efforts to make aid conditional on cooperation between the Croats and the Bosniacs and offered the Bosniac authorities assistance for the reconstruction of a hydroelectric plant, prompting the European Union to 63

Marcus Cox, "The Dayton Agreement in Bosnia and Herzegovina: A Study of Implementation Strategies', British Year Book of International Law 1998, 69 (1999), 205. For details of the international deliberations over the role of the HR, see Carl Bildt, Peace Journey: The Struggle for Peace in Bosnia (London: Weidenfeld & Nicolson, 1998), ch. 9. 64 The General Framework Agreement for Peace in Bosnia and Herzegov65 ina, Annex 10, Art. II.l(c). Ibid. 66 Author interviews with World Bank officials. See also Organization for Economic Co-operation and Development, Development Assistance Committee, Informal Task Force on Conflict, Peace and Development Co-Operation, 'The Limits and Scope for the Use of Development Assistance Incentives and Disincentives for Influencing Conflict Situations. Case Study: Bosnia and Herzegovina' (Paris: OECD, September 1999), 31.

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abandon its policy.67 Similarly, when the OHR began to play a more assertive role in pushing for the return of refugees and displaced persons, it faced some resistance from the UNHCR (the lead agency in this area), which had concerns about evicting individuals who were occupying the homes of returnees.68 'There has to be a homogeneous decision-making body to work through such a crisis as Bosnia was and is', Michael Steiner, then the Deputy HR, would argue just before he left office in June 1997.69 Acknowledging the severity of the problem, Robert Barry, the head of the OSCE mission, even suggested in 1999 that the OHR and the OSCE should merge their missions, with the same person becoming the head of both.70 Only in 2002, more than six years after the start of the Bosnian operation, would the coordinating structure of the international community be 'streamlined' in an attempt to eliminate overlapping efforts and responsibilities, leading to the establishment of a Board of Principals meeting once a week under the chairmanship of the HR. The initial permanent members were the OHR, SFOR, OSCE, United Nations Mission in Bosnia and Herzegovina (UNMIBH), UNHCR, and the European Commission, with the World Bank, IMF, and UNDP also participating regularly. The international community has apparently learned from the difficulties of BiH. UNMIK and UNTAET brought the many different actors together under a single umbrella. In the case of Kosovo, a pillared structure was established (see Figure 1.1), with each of the principal agencies or organizations operating under the authority of the Special Representative of the UN Secretary-General (SRSG) who is also the TA—first Bernard Kouchner, followed by Hans Haekkerup, Michael Steiner, Harri Holkeri, and S0ren Jessen-Petersen. The civil administration as originally designed was composed of four main components, each with lead responsibility in a particular area: the United Nations (civil administration), UNHCR (humanitarian issues), OSCE (institution-building), and the EU (reconstruction). The components rely on the capabilities and expertise of the lead organization, as well 67

European Stability Initiative, 'Reshaping International Priorities in Bosnia and Herzegovina. Part II: International Power in Bosnia', 30 March 2000,46. See also International Crisis Group, 'Reunifying Mostar: Opportunities for Progress', ICG Balkans Report No. 90,19 April 2000,46. 68 Author interviews with UNHCR, OSCE, and OHR officials in Bosnia. 69 Michael Steiner, '"Don't Fool Around with Principles'", Transitions, 4/5 (1997), 39. 70 International Crisis Group, 'Kosovo: Let's Learn from Bosnia', ICG Balkans Report No. 66,17 May 1999,16.

Figure 1.1 UNMIK Joint Interim Administrative Structure

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as those of various other international organizations and agencies, but they answer ultimately to the SRSG, the 'highest international civilian official in Kosovo'.7 Yet some of these components serve many masters (the OSCE, for instance, also receives policy and administrative advice from its Permanent Council and Chairperson-in-Office), and UN officials complain that these components have too much autonomy, and that too much time is spent arguing about relative responsibilities or criticizing one another's performance.72 The pillar structure has also proved to be unwieldy when dealing with crosscutting issues that involve more than one organization.73 In the case of East Timor, where the mission was entirely in the hands of the SRSG (Sergio Vieira de Mello), and far fewer regional organizations were involved, a greater degree of integration was achieved. Integration does not always extend to the inclusion of multinational forces, however. In both BiH and Kosovo, the multinational forces have been under the authority of a NATO commander, largely at the insistence of the US government whose soldiers serve there. Prompt and effective enforcement of civil authority has not always been assured as a result. In BiH this was particularly evident in 1996, soon after the Dayton Agreement came into effect, when Carl Bildt, the HR at the time, was powerless to order the deployment of NATO troops to prevent Serb leaders from using intimidation to force a scorched-earth exodus of Bosnian Serbs from the Sarajevo suburbs. As the Dayton Agreement states: 'The High Representative shall have no authority over the IFOR [Implementation Force] and shall not in any way interfere in the conduct of military operations or the IFOR chain of command.'74 (The fragmented nature of the NATO-led operation has only aggravated this problem. For while some troops have lent their support to law enforcement—for instance, in the apprehension of war-crimes suspects—their readiness to engage has been at the discretion of each national command.) By contrast, UNTAES, a contemporaneous operation, combined civil 71

Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/l 999/779,12 July 1999, para. 44. 72 Author interviews with UNMIK officials. Tension flared between Pillar Two (UN) and Pillar Three (OSCE) when the latter published a report, in October 2000, critical of the criminal justice system for which the United Nations had responsibility in the initial period of administration. See William G. O'Neill, Kosovo: An Unfinished Agenda (Boulder, CO: Lynne Rienner, 2002), 92. 73 International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 3 (Kosovo), para. 25. 74 Annex 10, Art. II (9).

40 Forms of International A dministration and military authority in a single person—the TA, Jacques Paul Klein and then William Walker—which clearly enhanced the effectiveness of the operation.75 Not only was the TA able to order the rapid deployment of UN forces, as he did, for instance, when Serb paramilitaries (Scorpions) refused at first to demilitarize, but the civilian and military components of the operation worked closely together, pooling resources to meet the logistical and administrative needs of the mission.76 With UNTAC and UNTAET, similarly, the military component of the mission was placed under the authority of the SRSG. In all of this it needs to be remembered that some of the more contingent aspects of an operation can sometimes also make a critical difference, rendering it difficult to generalize about formulae for success. With UNTAES, for instance, important as the integrated structure was, the fact that the operation was headed by a senior American diplomat who, in the case of Klein was also a major-general in the US Air Force Reserve, contributed significantly to the mission's success in a number of areas. It ensured that the operation would have political and resource support from a very important quarter. It also ensured that the operation would have credibility in the eyes of the local parties.77 Similarly, the fact that the force commander was from a NATO country (Belgium) facilitated the development of strong cooperative relations with the NATO-led Implementation Force (IFOR) based in neighbouring BiH, reflected in the plans that provided for NATO to come to the assistance of UNTAES in the event of an emergency. In addition, regular overflights by NATO fixed-wing aircraft sent a strong signal of NATO/IFOR support to all parties concerned.78 Finally, Klein's 75

Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), UN Doc S/1995/1028,13 December 1995, para. 13. See also SC Res 1037 (1996). 76 United Nations, Department of Peacekeeping Operations, Lessons Learned Unit, The United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES), January 1996-January 1998: Lessons Learned (New York: UN Department of Public Information, 1998), para. 27. 77 Ibid., paras 20-2. 78 Derek Boothby, 'Probing the Successful Application of Leverage in the UNTAES Operation', paper presented for a round-table meeting, 'Applying Leverage: Lessons from the United Nations Operations in Mozambique and Eastern Slavonia', New York University School of Law, New York, 8 October 1999, 7. Boothby is a former deputy transitional administrator of UNTAES (1996-97).

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79

personal qualities—in particular, his leadership capabilities —and the managerial skills of his deputies were also an important factor. These more contingent features of the operation, while not necessarily unique to UNTAES, are not easily replicated for all international administrations. 79

The importance of personal qualities is discussed in 'Special Envoys in the Twenty-First Century: Diplomacy, Leadership and Management', summary of a round-table discussion conducted by the Pearson Peacekeeping Centre, Clementsport, Nova Scotia, 29-30 October 2001, 7-8.

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Parti International Administration in Practice

International administration encompasses a broad range of activities— broader, it has been noted, than complex peacekeeping. Some of these activities relate to immediate needs, such as the establishment of a secure environment and the delivery of humanitarian aid in the aftermath of fighting. Others are directed towards the longer term requirements of peace consolidation, including economic reconstruction and political institution-building. Satisfying these twin imperatives is complicated by the fact that each generates its own set of demands and that these demands may not be entirely compatible with one another. Humanitarian aid, for instance, can strengthen the hands of warlords and thus militate against processes of reconciliation and reintegration. Immediate and longer term requirements can even be in competition with one another if international authorities, eager to achieve demonstrable progress in the short term, fail to attach sufficient importance to ensuring sustainable results beyond the transitional period. The more fundamental challenge for an international administration, however, is the sheer number of functions it must perform, many of them simultaneously and with great urgency. International agencies are increasingly well equipped to respond promptly and effectively to particular aspects of emergencies. Regarding the provision of disaster relief, for example, guidelines have been established for the deployment of military and civil defence assets (the so-called 'Oslo Guidelines') that the United Nations has already used.1 But these agencies are less well equipped to respond to complex emergencies of the kind that 1

United Nations Office for the Coordination of Humanitarian Affairs (OCHA), 'Guidelines on the Use of Military and Civil Defence Assets in Disaster Relief, May 1994, available at www.reliefweb.int/mcdls/mcdu/ Guideiines/Oslo_guidelines/og/oslo_guidelines2.html.

44 International Administration in Practice have given rise recently to the establishment of international territorial administrations. For one thing, these are politically sensitive operations, the early planning of which may sometimes be too delicate an affair for a body like the United Nations to be able to undertake. Contingency planning for the collapse of a sovereign state is difficult if not impossible for the UN Secretariat to conduct. As a result, the United Nations and other intergovernmental bodies must often deploy their assets at very short notice and with little preparation. Once deployed there is the further challenge that derives from a complex operation of this kind being able to identify the priority tasks as the situation on the ground evolves. Of course, not all the functions of international administration will necessarily be carried out by the international authorities themselves. Even in cases of direct governance, international administrators may harness local capacity for that purpose, as the United Nations did in Eastern Slavonia. But where such capacity does not exist, or where it may be considered imprudent to empower local authorities— for instance, where political competition among the local parties threatens to compromise the integrity of service delivery for minority communities—international administrators may prefer not to devolve much responsibility, at least initially. The chief functions of an international administration, which are discussed in the chapters that follow, can be grouped into five broad categories of activity: • Establishment and maintenance of public order and internal security; • Repatriation and reintegration of refugees and internally displaced persons; • Performance of basic civil administrative functions; • Development of local political institutions, including the holding of elections to these institutions, and the building of civil society; • Economic reconstruction and development. Some of these functions represent traditional post-conflict reconstruction efforts, notably the return and reintegration of refugees. Notwithstanding the fact that every crisis generates its own special challenges, the novelty of these functions may lie less in the activities themselves than in the difficulties posed by integrating them into a larger framework of operations. Other functions, or aspects of them, while not necessarily unique to international administrations, represent more recent features of peace operations, and they are discussed in the following chapters in somewhat greater detail.

2 Public Order and Internal Security Public order and internal security are the sine qua non of civil rule and, by extension, of the international administration of a territory. In the absence of civil peace, governance is naturally difficult if not impossible to exercise. Yet in a war-torn society, even if the guns have been silenced, individuals may still live in fear of reprisal or may suffer persecution by a police force or judiciary beholden to factional leaders. Or, in the absence of any local police force at all, anarchy may prevail and organized crime flourish. Establishing and maintaining public order and internal security are thus among the most important functions for international bodies engaged in administering and reconstructing societies emerging from civil conflict. International administrations are responsible for order and security in a territory to a far greater degree than peace support operations have been in the past. With respect to policing, for instance, missions today may have a mandate not only to monitor local law-enforcement activities but also to establish local police forces where none exist; to train local police officers to ensure that their activities are compliant with international standards for democratic policing; to investigate alleged human rights abuses by local law-enforcement personnel; to restructure local police forces so as to rationalize their size and achieve an ethnic composition reflecting the community they serve; to monitor judicial proceedings; and in some cases themselves to carry out the task of policing—what is known as 'executive authority policing'.1 International civilian police (CIVPOL) may be helped to perform these activities by, among others, peacekeeping troops, international judges and prosecutors, penal experts, and human rights officers. 1

For a discussion of the evolution of civilian policing, see Annika S. Hansen, From Congo to Kosovo: Civilian Police in Peace Operations, Adelphi Paper 343 (Oxford: Oxford University Press/International Institute for Strategic Studies, 2002), ch. 1.

46 Public Order and Internal Security Policing, however, is only one aspect of the provision of order and security. Important, too, is the establishment of an independent judiciary and a sound penal system. Where judges are either partial, intimidated, or inexperienced; or where adequate detention centres and practices are not in place, the effects of good policing can easily be undermined. The failure to prosecute war criminals, in particular, militates against the establishment of an atmosphere of confidence that is necessary for the return of refugees and for the process of reconciliation. Absence of the rule of law can also weaken the authority of the international administration as well as discourage foreign investment. All three elements—policing, judicial, and penal activities—are critical, therefore, from the earliest stages of deployment. Yet even then the picture is not complete. The establishment of public order and internal security also depends on effective peacekeeping and will often require the implementation of a wider reform agenda, including arms control and stabilization measures, the demobilization and reintegration of rebel forces, and democratic institution-building— topics that are beyond the purview of this chapter. It is not only the very large number of functions that transitional administrators (TAs) need to perform in relation to security, then, that poses a challenge for territorial administration but also the fact that many of these functions are interdependent.

Policing Like the administrations of which they are a part, police missions can be differentiated on the basis of the executive authority that they possess: in Bosnia and Herzegovina (BiH), international police authority has been limited largely to monitoring, training, and restructuring the local police forces. In Kosovo and East Timor, by contrast, international civilian police have for the first time assumed full responsibility for law enforcement pending the establishment of newly formed local police forces. (Eastern Slavonia represents a hybrid of the two models: the use of a small number of international police by the TA for special operations and reliance otherwise on a local police force reconstituted by the UN Transitional Administration for Eastern Slavonia (UNTAES).)2 2

A fifty-man Polish Special Police Group was available to the TA for any special operations that might be required. This group made the first arrest of any indicted war criminal in the region when it apprehended the former mayor of Vukovar, Slavko Dokmanovic, on 27 June 1997.

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By the terms of the Dayton Agreement, it is the Bosnian parties themselves that have responsibility for maintaining a 'safe and secure environment for all persons in their respective jurisdictions'.3 However, to assist the parties in meeting their obligations, the UN Security Council, on 21 December 1995, established a UN civilian police operation—the International Police Task Force (IPTF), the principal activity of the UN Mission in Bosnia and Herzegovina (UNMIBH)—whose function it was to monitor, observe, and inspect law-enforcement activities and facilities, including judicial organizations, structures, and proceedings; to advise law-enforcement personnel and forces; and to train law-enforcement personnel.4 (The UN mandate expired on 31 December 2002 and the IPTF was replaced by a smaller EU Police Mission with a more limited mandate.) Over time the IPTF would acquire additional responsibilities, which are discussed below, but a fundamental fact remained unchanged: the IPTF was an unarmed force that had neither the authority nor the capacity to enforce local laws and whose effectiveness would therefore depend, in the UN Secretary-General's own estimate, 'on the willingness of the parties to cooperate with it'.5 This relatively weak role for the IPTF was not indicative of any confidence on the part of the international community in the willingness or ability of the local parties to maintain internal security. Rather, it was a casualty of the diplomatic wrangling that occurred between the US State Department and the Pentagon at the time of the Dayton negotiations in November 1995. Richard Holbrooke, the US diplomat and chief negotiator, wanted a strong role for both the peacekeeping force (the Implementation Force—IFOR) and the international police force. The Pentagon, however, balked at such a role for the military: the memories of the UN's peacekeeping humiliation in BiH, and America's own debacle in Somalia in 1993, were too fresh and the Pentagon did not want to expose its own troops to high risk. Similarly, it feared that a strong role for the police force would lead to 'mission creep' because IFOR would inevitably be called upon to assist or rescue the IPTF.6 The United States instead argued for 3

The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 11, Art. 1(1). 4 Ibid., Art. Ill(lXa-g). SC Res 1035 (1995) of 21 December 1995 established the IPTF. 5 Report of the Secretary-General Pursuant to Security Council Resolution 1026 (1995), UN Doc S/l 995/1031, 31 December 1995, para. 27. 6 For Holbrooke's account, see his To End A War (New York: Random House, 1998), 251-2.

48 Public Order and Internal Security a European-constituted gendarmerie but the Europeans were opposed to the idea, in part because they did not want to assume responsibility for the enforcement of laws that did not enjoy popular support, such as those that would later be drafted to facilitate the return of refugees to areas from where they had been expelled.7 So the IPTF remained weak by a mixture of accident and design. Despite IFOR's strength (60,000 well-equipped troops, including 20,000 US soldiers, as against fewer than 20,000 lightly armed 'blue helmets' at the peak of the UN's involvement), the NATO-led force took a dim view initially of performing tasks of a civilian nature, including police-support functions. This attitude, together with a weak role for the IPTF, meant that an 'enforcement gap' very quickly emerged in BiH, first apparent in the incident mentioned in Chapter 1: the failure to prevent the use of intimidation by the Bosnian Serb leadership to force the exodus of Serbs from the Sarajevo suburbs which, under the Dayton Agreement, were to be transferred from the authority of Republika Srpska (RS) to the authority of the Bosniac-Croat Federation. IFOR watched passively—some noteworthy exceptions aside—as gangs of hooligans ran through the streets, inciting thousands of Serbs to take flight from one suburb after the other, then often vandalizing and/or setting fire to the homes. The violence and destruction dealt a serious blow to international efforts to promote peaceful reintegration.8 (For its part, the Bosnian government did little to encourage the Serb residents to stay.) As Michael Dziedzic and Andrew Bair observe, 'The message derived from this experience was that even under the cognizance and apparent protection of international military and police forces, it was not safe for Serbs to remain in Moslem neighborhoods.'9 In Kosovo and East Timor, the situation has been very different. There international military forces were either given explicit responsibility for the maintenance of internal security, notably in the early phase of operations, or they simply assumed such responsibility. UN Security Council Resolution 1244 tasked the Kosovo Force (KFOR) 7

Remarks by Halvor Hartz, former Chief of Staff in UNPROFOR, at 'Assessing the Implementation of the Dayton Agreement 1996-1997', a Centre for Defence Studies workshop, London, 15 December 1997. 8 For Carl Bildt's graphic account of these events, see his Peace Journey: The Struggle for Peace in Bosnia (London: Weidenfeld & Nicolson, 1998), ch. 10. 9 Michael J. Dziedzic and Andrew Bair, 'Bosnia and the International Police Task Force', in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security (Washington, DC: National Defense University, 1997), 283.

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with 'establishing a secure environment... and ensuring public safety and order until the international civil presence can take responsibility for this task'. KFOR took this responsibility seriously, engaging in community patrolling, criminal investigations, and other policing activities, as well as conducting joint security operations with the UN Interim Administration Mission in Kosovo (UNMIK) police, although national contingents interpreted their mandate differently and some contingents, therefore, performed these tasks more robustly than others. Despite its willingness to execute policing functions, KFOR failed to prevent the wave of violence that swept the province as returning Albanian refugees took revenge on the Serb and other minority populations (with KFOR sometimes looking on)10 and failed also to prevent Serb militants from effecting a de facto partition of Kosovo along the Ibar River in the town of Mitrovica. (Some charge French KFOR with responsibility for dividing the town because its soldiers stopped at the river, erected a checkpoint, and would not allow Albanians to cross into the north; others maintain that the French actions helped to forestall a total Serb exodus from Kosovo.)11A King's College London study found that KFOR's combat configuration and focus on the military aspects of its mandate meant that it was poorly equipped to handle many of the challenges to public security. The use of lethal force by KFOR against Kosovo civilians also raised questions about how well prepared the soldiers were for the assumption of policing functions.13 In East Timor, the international military forces also performed important functions relevant to public security. The Australian-led International Force in East Timor (INTERFET) that was deployed following the outbreak of violence in September 1999 was given a mandate 'to restore peace and security' but, concerned lest the Timorese people take justice into their own hands, interpreted that mandate broadly 10 For a first-hand account, see Tim Judah, Kosovo: War and Revenge (New Haven: Yale University Press, 2000). 11 For details of the violence, see Human Rights Watch, Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (New York: Human Rights Watch, August 1999). On the partition of Mitrovica, see David Rohde,'" Serbian Zone" Decreed in Challenge to NATO', International Herald Tribune, 23 June 1999. On French KFOR, see William G. O'Neill, Kosovo: An Unfinished Peace (Boulder, CO: Lynne Rienner, 2002), 45-6. 12 International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 3 (Kosovo), para. 45. 13 Amnesty International, 'Kosovo: Clarification into Police Functions Undertaken by KFOR Crucial', Public Statement, AI Index EUR 70/103/1999, 16 July 1999.

50 Public Order and Internal Security to encompass, inter alia, the arrest of individuals accused of having committed serious offences. INTERFET also assumed responsibility subsequently for crowd control and weapons searches.14 The UN peacekeeping force that replaced INTERFET, in turn, was given a broad mandate to 'maintain a secure environment throughout the territory of East Timor'.15 In both Kosovo and East Timor, then, the peacekeeping mandate or the interpretation of the mandate bore more directly on the establishment of internal security than that of IFOR in BiH, although over time, it is important to note, the Stabilization Force (SFOR)—the successor to IFOR—has come to play more of a role in support of law and order, beginning with its arrest of indicted war criminals in July 1997.16 SFOR would later patrol with the IPTF; conduct weapons inspections in local police facilities; and command the Multinational Specialized Unit (MSU), a small corps of armed police, among other law-enforcement activities.17 While a role for the military in policing has met with some resistance from within troop contributing countries, particularly from more traditional quarters in the United States, it is not the first time that occupying military forces have assumed such responsibility. Allied soldiers, led by the United States, readily accepted a role in policing Germany after the Second World War. A special constabulary force of 30,000 US Army soldiers (USCON), distinguished by their bright yellow scarves and special uniforms, was established in January 1946 to carry out policing and riot control in the Western sectors.18 In Japan, a similar model was introduced after the war.19 These historic experiences have not been lost on some among the 14

SC Res 1264 (1999) of 15 September 1999 authorized the deployment of INTERFET. For a discussion of its role in maintaining law and order, see Simon Chesterman, 'Kosovo in Limbo: State-Building and "Substantial Autonomy"', report of the International Peace Academy, New York, August 2001, 12. See also Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/53,26 January 2000, paras 15-17. 15 Report of the Secretary-General on the Situation in East Timor, UN Doc S/l 999/1024, 4 October 1999, para. 75. 16 John L. Cirafici, 'SFOR in Bosnia in 1997: A Watershed Year', Parameters, 29/1 (1999), 80-91. 17 Letter Dated 18 September 1998 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/l998/897,28 September 1998. 18 Lucius Clay, Decision in Germany (London: William Heineman, 1950), 65. 19 Espen Barth Eide and Tor Tanke Holm, 'Postscript: Towards Executive Authority Policing? The Lessons of Kosovo', International Peacekeeping, 6/4 (1999), 214.

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older generation especially of Western soldiers serving in the Balkan transitional administrations today. A second important difference represented by Kosovo and East Timor has been the role of international CIVPOL. In both cases CIVPOL has, for the first time, assumed full responsibility for law enforcement—extending to the power of arrest and the use of firearms—pending the establishment of internationally trained local police forces. (In East Timor, the UN police were unarmed—with the exception of two rapid-response units—but the Police Commissioner could authorize the use of firearms if he thought it necessary.) The reason for this shift in approach is two fold: it reflects lessons learned from the Bosnian experience but also the objective conditions that prevailed at the conclusion of hostilities. Although Serbia and Indonesia had governed Kosovo and East Timor respectively in a brutal fashion, they had nonetheless been responsible for maintaining order in the two territories, and their precipitous withdrawal meant that there were no longer any local police forces on the ground. The risk was that informal local forces would fill the law-and-order vacuum—as in fact the Kosovo Liberation Army (KLA) had begun to do—if international forces did not.20 Objective conditions were an important factor in another respect: as the populations of Kosovo and East Timor for the most part welcomed the deployment of international forces on their territories, they were more inclined to cooperate with them than to challenge their authority, in contrast to BiH where established police forces were, and to some extent remain, beholden to ethnic parties whose influence the international authorities have been seeking to dilute. The IPTF was indeed handicapped by the fact that its basic function was to reform existing forces rather than to create entirely new forces. The end of the war left the country's police forces divided among, and controlled by, the three nationalist parties. The Serb-dominated RS and the Bosniac-Croat-dominated Federation each maintain their own police forces and, within the Federation, police authority is further devolved to ten ethnically divided cantons—structures and competences that are all constitutionally sanctioned.21 These divisions 20 21

Ibid., 212.

Art. III(2)(c) of the Constitution of Bosnia and Herzegovina establishes civilian law enforcement as entity competences. (The constitution is Annex 4 of the General Framework Agreement for Bosnia and Herzegovina.) Art. III(4)(a) of the Constitution of the Federation of Bosnia and Herzegovina gives the cantons responsibility for establishing and controlling police forces.

52 Public Order and Internal Security among BiH's police forces—a reflection of the ethnic fault lines created by the war and reinforced by the Dayton settlement—only serve to facilitate the exercise of political influence and national bias at the expense of democratic policing.22 Ethno-political influence manifests itself in policing in different ways. First, there has at times been an evident bias in the enforcement of laws. When in May 2001, for instance, rioters in the towns of Trebinje and Banja Luka prevented the laying of foundation stones for the rebuilding of two mosques destroyed during the war—setting fire to cars and buses in the latter case and trapping some 400 Bosniac pilgrims and officials inside the Islamic Community Centre for hours—the police in both instances looked on and did not intervene. The head of criminal investigations in the Trebinje police subsequently refused to mount an investigation while in Banja Luka a serious investigation, arrests, and prosecutions took place only in response to strong pressure from the United Nations.23 The incidents are symptomatic of a general problem that affects all national communities, although it is difficult to know with any precision how widespread the problem is. However, as Jaque Grinberg, the head of UNMIBH Civil Affairs, acknowledged before a meeting of the NATO Policy Coordination Group in November 2001, '[T]here is strong political penetration of police and police organisations.'24 Local police have not only been passive bystanders to politically motivated crimes; they have also been active participants in those crimes. When the High Representative (HR) ordered the seizure of the Hercegovacka Banka in Mostar in April 2001 because of evidence of illicit bank activities linked to Bosnian Croat separatism, a riot ensued, which, it was later discovered, was led by local police officers, among others.25 Indeed in some of the Western Herzegovina cantons, Croat police officers have refused even to wear Federation badges, displaying instead the symbols of the formally defunct Croatian Republic of 'Herceg-Bosna', which Croatian militants have been seeking to revive. Much earlier, in 1996 the United Nations had estimated that as many 22

International Crisis Report, 'Policing the Police in Bosnia: A Further Reform Agenda', ICG Balkans Report No. 130,10 May 2002,11. The following section draws from this and other ICG reports. 23 International Crisis Group, 'The Wages of Sin: Confronting Bosnia's Republika Srpska', ICG Balkans Report No. 118, 8 October 2001, 35. 24 Jaque Grinberg, 'The Future Mission of SFOR: An UNMIBH Perspective', address to the NATO Policy Coordination Group, 16 November 2001, cited in International Crisis Group, 'Policing the Police in Bosnia', 23 (fn. 145). 25 International Crisis Group, 'Policing the Police in Bosnia', 23.

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as 70 per cent of all human rights violations were the work of the police forces of the entities themselves,26 leading the Security Council in December 1996 to authorize the IPTF to carry out investigations of human rights abuses by law-enforcement officers.27 The IPTF, however, was not empowered to dismiss local police officers who committed human rights and other violations; it could only 'decertify' them. (The HR would later be given the authority to dismiss recalcitrant officers.) Although the situation has improved since then, the police continue to be implicated in crimes of an ethnic nature.28 In a manner consistent with the practice under communism, the police are also used by the ruling parties as instruments of political control. Thus when the Party of Democratic Action (SDA), the Bosniac nationalist party, lost the general elections in November 2000, Alija Izetbegovic, the party leader and member of the Bosnian presidency, was able to reassure his supporters that 'the elections may indeed be lost [but] power has not and will not be lost while we keep control over the police, the secret service and the judiciary'.29 Izetbegovic's claim was given credence by an UNMIBH report the following year, which noted, 'The fundamental law enforcement concept that, as law enforcement officials, police officers are servants of the law and not government and therefore personally accountable for its implementation... is completely absent in the culture of the police/30 The UNMIBH report raises fundamental questions about how easily a police culture born of five decades of socialist policing and four years of war can be transformed. Local police also do not always cooperate with police from other cantons, with police at the entity level, with police from the other entity, or with the State Border Service. There is little sharing of 26

Report of the Secretary-General Pursuant to Security Council Resolution 1035 (1995), UN Doc S/1996/1017, 9 December 1996, para. 15. 27 SC Res 1088 (1996) of 12 December 1996, para. 28. 28 The US State Department's 2003 country report on human rights in BiH notes improvements in police accountability, provision of security for returning minority refugees, police investigations into incidents of violence against minorities, and police protection of minorities, although some of these improvements were slight. See US Department of State, 'Country Reports on Human Rights Practices 2003: Bosnia and Herzegovina', 25 February 2004, available at www.state.gov/g/drl/rls/hrrpt/2003/27829.htm. 29 Senad Advic, 'Lagumdzijini vanjski, Izetbegovicevi unutrasnji poslovi!', Slobodna Bosna, 31 May 2001, cited in International Crisis Group, 'Policing the Police in Bosnia', 23. 30 UNMIBH Six Monthly Strategy Paper for the Mostar Region (2001), cited in International Crisis Group, 'Policing the Police in Bosnia', 23 (fn. 145).

54 Public Order and Internal Security information, joint operations are rare, and arrest warrants issued in one jurisdiction are often not implemented in another.31 And yet, given the division of labour—the fact, for instance, that the Federation Ministry of the Interior (MUP) has responsibility for combating organized crime, drug trafficking, inter-cantonal crimes, and terrorism— such cooperation is vital for effective crime fighting. Similarly, police non-cooperation with the judiciary is also a problem. Sometimes police fail to file crime reports, thus providing protection to the perpetrators. They may also fail to conduct an investigation or conduct it so badly that the evidence is either of little value or not admissible in a court. Police have even been known to perjure themselves in an attempt to obstruct justice, an offence for which they are rarely prosecuted.32 Much of this non-cooperation, it is important to bear in mind, has an ethnic basis, motivated in part by an interest in protecting members of one's own ethnic group, especially in the case of ethnically oriented crimes, or in promoting nationalist agendas, including efforts to inhibit the development of effective entity- or state-level institutions. It is against this backdrop of ethnic division and politicization that the IPTF was established—formally at the 'request' of the local parties, as Annex 11 of the Dayton Accord indicates, but clearly without their full support. (The leadership of RS did not even take part in the Dayton negotiations but was represented instead by Serbian President Slobodan Milosevic.) To ensure the compliance of the local police authorities with internationally accepted standards in their daily operations and in their treatment of minorities, the IPTF relied in the first instance on monitoring the performance of the local police. This was to be achieved by co-locating a force of 1,721 IPTF monitors in 109 Bosnian police stations according to a formula of one monitor for every thirty local police officers, although even before the operation began that figure was deemed to be 'operationally unnecessary [and] administratively complicated* and it was reduced to fifty-four police stations.33 Co-location was also practiced by the United Nations in Eastern Slavonia but because of the relatively small size of the territory it was possible to establish a UN presence in all of the local police stations.34 31

International Crisis Group, 'Policing the Police in Bosnia', 11. Ibid., 12-16. 33 Report of the Secretary-General Pursuant to Security Council Resolution 1035 (1995), UN Doc S/l 996/210,29 March 1996, para. 7. For the original concept of operations, see UN Doc S/l995/1031,13 December 1995. 34 Report of the Secretary-General Pursuant to Security Council Resolution 1043 (1996), UN Doc S/1996/472/Add.l, 28 June 1996, para. 30. 32

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By most assessments—the UN's own as well as those of external observers—the vigilance which co-location offers has enhanced the quality of local policing, although experiences have varied widely over time and place.35 What hindered the effectiveness of the United Nations in BiH, however, was its lack of readiness initially—a problem that also manifested itself in Kosovo and East Timor and, for that matter, is endemic to most UN police operations. By the end of March 1996 a mere 400 IPTF officers had arrived in theatre, and seven months after the start of the Bosnian mission IPTF personnel strength was still short of its target size. Yet the first six to twelve weeks after a ceasefire or peace agreement are perhaps the most critical period for establishing a secure environment and the credibility of an international peace force, both civilian and military.36 Slowness to deploy creates opportunities for spoilers to cause serious and sometimes irreparable damage to a mission. Indeed, the transfer of the Serb-held Sarajevo suburbs, originally scheduled to take place fortyfive days after implementation of the Dayton Accord was initiated, had to be postponed because there were too few police monitors on hand, and the delay arguably gave the Bosnian Serb authorities time to prepare the forced evacuation. In Kosovo, too, sluggish police deployment meant that five months into the operation, UNMIK police were totally reliant on KFOR for law enforcement in three out of five regions. Only in Prizren and Pristina did UNMIK police have 'police primacy'.37 In East Timor, similarly, only 400 police had been deployed by January 2000 against a projected total strength of 1,640.38 By contrast, some 2,500 INTERFET forces arrived in Dili within five days of the adoption of the UN Security Council resolution authorizing their deployment. The difficulty, in part, is that many contributing countries do not have police officers readily available for service overseas; unlike soldiers, police officers are likely to be actively engaged at home and most states do not have reserve police capacity. This is true especially of Great Britain and, to a somewhat lesser extent, the United States, which have no national police forces and must seek recruits from what are often small, resource-scarce local police forces or from 35

International Crisis Group, 'Policing the Police in Bosnia', 52. Report of the Panel on United Nations Peace Operations (the 'Brahimi Report'), UN Doc A/55/505-S/2000/809,21 August 2000, para. 87. 37 Assembly of the Western European Union, 'International Policing in South-Eastern Europe', Report of the Political Committee, Forty-Sixth Session, Document C/1721,15 November 2000, para. 40. 38 UN Doc S/2000/53,26 January 2000, para. 50. 36

56 Public Order and Internal Security among retirees.39 Moreover, recruitment for UN police operations cannot begin until an operation has been authorized. Thus, while the need for a police mission in BiH was evident from at least the start of the Dayton negotiations in mid-November 1995, the United Nations could not begin to recruit for the operation until after the adoption of UN Security Council Resolution 1035 on 21 December, which authorized the establishment of the IPTF. In Kosovo, similarly, serious planning for the police mission did not begin until after the military campaign had ended, by which point it was clear that the United Nations, as opposed to the Organization for Security and Co-operation in Europe (OSCE)—also a candidate for the job—was to be given the responsibility for policing.40 A related constraint on the effectiveness of monitoring, as well as other international police functions, is the lack of qualifications among the officers. The requirements to serve on CIVPOL missions are fairly basic, often no more than fluency in English, the ability to drive, and several years of policing experience (eight in the case of the IPTF). While most officers recruited for missions possess the requisite skills, not all of them do. In East Timor, even officers who had passed the UN's Selection Assistance Tests in their native countries were discovered to lack the necessary English-language and driving skills when they arrived in theatre a few months later—a problem known as 'slippage'.41 According to Ross Grimmer, the deputy head of CIVPOL, 600 of the 1,300 international police who had deployed by August 2000 were just 'pairs of boots'.42 Yet because police missions are often short-staffed, commissioners are under pressure not to repatriate officers who do not meet the minimum standards. (When efforts have been made to repatriate them, in some cases, countries have actually refused their return.) There are difficulties, too, 39

Chuck Call and Michael Barnett, 'Looking for a Few Good Cops: Peacekeeping, Peacebuilding and CIVPOL', International Peacekeeping, 6/4 (1999), 51. 40 Author interviews with UNMIK officials in Pristina. The OSCE had begun planning for the establishment of an international police force that could take over from its Kosovo Verification Mission, which operated from October 1998 until March 1999, but leading states appear to have concluded that it was too ambitious a task for the OSCE. See Eide and Holm, 'Postscript: Towards Executive Authority Policing?', 215. 41 Author interview with CIVPOL officials, Dili. 42 Cited in Arthur C. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century (Oxford: Oxford University Press, 2002), 115.

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for police officers who come from autocratic regimes that themselves do not conform to international human rights standards. This creates two kinds of problems: police officers may lack the understanding of human rights necessary to perform their responsibilities, or they may lack credibility—rightly or wrongly—in the eyes of local police officers and citizens. Alongside monitoring, the other major function of the international police operations has been the vetting, training, and restructuring of existing police forces or the establishment of entirely new forces. In BiH, the IPTF was authorized to screen all local police for criminal records and to ensure that they did not figure among the list of indicted war criminals wanted by the International Criminal Tribunal for the former Yugoslavia (ICTY). Police officers were also given training in the principles of democratic policing and human rights as well as in basic police skills. (Many local policemen, drawn from military or paramilitary ranks, had had no prior police training.) The training appears to have been effective, in terms of public perceptions at least: according to an SFOR poll conducted in 2001,45 per cent of the population surveyed felt that the police were better trained now than before the war.43 The restructuring of police forces has proved to be more difficult because of initial unwillingness on the part of RS which finally agreed, in late 1998, to reduce its police force to 8,500 (from an estimated 12,000 at the end of the war) as against 11,500 for the Federation (from 32,750).44 More elusive still has been success in minority recruitment to create police forces that reflect an 'equitable representation' of all three constituent peoples. ('Equitable' in this context is interpreted to mean a reflection of the population according to the pre-war 1991 census for the Federation and, in a major concession to the Serbs, a reflection of minority participation in the 1997 municipal elections for RS.) Minority recruitment is an important achievement if resident minorities or prospective returnees are to feel secure in their environment. Yet by the end of 2003, only 6 per cent of the police in RS and 11 per cent of the police in the Federation were minorities, as against IPTF targets of 20 per cent and 28 per cent respectively.45 By contrast, in the special status territory of Brcko District 43 Internal SFOR survey (2 August 2001) cited in International Crisis Group, 'Policing the Police in Bosnia', 34 (fn. 226). 44 'Agreement on Restructuring the Police of the Federation of Bosnia and Herzegovina' (April 1996) and 'Framework on Police Restructuring Agreement, Reform and Democratization in the Republika Srpska' (December 1998). 45 US Department of State, 'Country Reports on Human Rights Practices 2003: Bosnia and Herzegovina'.

58 Public Order and Internal Security (pop. 87,000), where the internationally appointed Supervisor enjoys sweeping powers, UNMIBH succeeded in establishing a unified multi-ethnic police force made up of 45 per cent Serbs, 37 per cent Bosniacs, 16 per cent Croats, and 2 per cent others nearly three years earlier.46 As the example of Brcko would suggest, TAs have had more success in their efforts to create multi-ethnic police forces ab initio. In Eastern Slavonia, within six months of its start of operations, UNTAES had established and trained the core of a Transitional Police Force (TPF), the composition of which was proposed by the government of Croatia and local Serb representatives. The force would ultimately comprise 815 Croat officers, 811 Serb officers, and 52 officers from other ethnic groups when, on 15 December 1997, one month before the conclusion of the UN mission, responsibility for management and operational control of the force was transferred to the Croatian Ministry of Interior. (Croatia pledged to maintain Serb proportional representation and concluded a memorandum of understanding with UNTAES to that effect in July 1997, which the United Nations subsequently judged to have been honoured.)47 United Nations reports attest to growing professionalism among the police throughout the two-year transitional period, although TPF officers would sometimes show a reluctance to take action against members of their own ethnic community.48 Moreover, local confidence in the TPF was never very high and, indeed, police response to ethnically related incidents after the transition was not always satisfactory. Continued international monitoring helped to ensure, however, that overall police performance did not decline any further: a follow-up UN Police Support Group was established on 16 January 1998, which was then succeeded by an OSCE monitoring mission.49 In Kosovo, where no local police remained after the withdrawal of the Serb authorities, the United Nations also set about to establish 46

Report of the Secretary-General on the United Nations Mission in Bosnia and Herzegovina, UN Doc S/2000/215,15 March 2000, para. 21. 47 UNTAES, 'Compliance with Agreements—Report No. 6', 7 November 1997 (internal memo). 48 Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 997/767,2 October 1997, para. 31. 49 SC Res 1145 (1997) of 19 December 1997 established a support group of 180 civilian police monitors to continue to monitor the performance of the local police in the UNTAES-administered region. For a discussion of security in the region and Croatian police performance, see Report of the Secretary-General on the United Nations Police Support Group, UN Doc S/l 998/500,11 June 1998.

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a new police force, the Kosovo Police Service (KPS), trained by the OSCE. Nearly three years after the opening of the KPS School in September 1999, the school had produced one of the better integrated institutions in the region, with 16 per cent of the force made up of women and 15 per cent from minority communities, including 8 per cent from the Kosovo Serb community (who constituted approximately 10 per cent of the population before Belgrade's withdrawal).50 KPS officers had by then begun to outnumber UNMIK police (4,770 to 4,524), whom they would eventually replace altogether. And in contrast to the initial surge in violent crime in the wake of the KFOR deployment, by July 2002 there had been a significant decrease in the numbers of serious crimes, including attacks and intimidation on minority communities, although the remaining Kosovo Serbs were largely confined to enclaves and while sometimes able to drive unescorted through Kosovo Albanian areas, still felt very insecure.51 In March 2004, moreover, Kosovo saw the worst inter-ethnic violence since the end of the war when riots led by Albanian extremists erupted throughout the province—evidence of the underlying fragility of the security situation.52 Is the creation of a new police force, then, superior to efforts to reform an existing one? Clearly there are advantages to being able to train a force from scratch and to placing that force under international control as opposed to international supervision. Among other advantages, it is easier to minimize the influence of local political forces, at least initially. However, it can take several years to train new personnel adequately, and international or regional agencies must be prepared to assume responsibility for policing in the meantime. Moreover, the establishment of a new police force may require large-scale dismissals of existing forces, the economic and social consequences of which can be far reaching. Contextual factors are also relevant to success 50 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2002/779,17 July 2002, para. 28. 51 Ibid., para. 23. For a less sanguine assessment of the security situation for Kosovo Serbs, see Council of Europe, Office of the Commissioner for Human Rights, 'Kosovo: The Human Rights Situation and the Fate of Persons Displaced from their Homes', Document No. CommDH(2002)ll, Strasbourg, 16 October 2002, para. 45. 52 'Violence Shakes Kosova', RFE/RL Balkan Report, 19 March 2004, available atwww.rferl.org/reports/balkan-report/2004/03/ll-190304.asp. Attacks on KPS officers, during the riots and at other times, arguably testify to their professional conduct. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2004/71,26 January 2004, para. 19.

60 Public Order and Internal Security in building new law-enforcement capacity. The climate of uncertainty that prevailed in Eastern Slavonia during and after the transition— a function, in part, of insufficient confidence-building by the Croatian authorities—inhibited the development of mutual trust among police officers that, in the case of Kosovo, has made it possible for officers of different ethnicities to work together. In either case, success in the longer term depends on broader societal changes, including changes in identity and loyalties, that lead ultimately to the de-coupling of public service delivery from ethno-nationalist politics.53

Judicial and Penal Institutions The establishment of effective judicial and penal institutions is an early and urgent requirement for territorial administrations. Judges in a war-torn society, if any exist at all, are often poorly trained and inexperienced, many of them having been called to the bench to fill vacancies created by the flight or murder of more skilled judges. Moreover, political influence over the judiciary is rife in countries with limited democratic experience and polarized by civil war. Yet because of a lack of resources and qualified personnel, more than two-and-a-half years would elapse before UNMIBH was able to initiate a court-monitoring programme, the Judicial System Assessment Programme (JSAP), which, however, had no mandate to implement reform.54 (IPTF had conducted some trial monitoring previously but only on an ad hoc basis.) And it would not be until July 2000 that a comprehensive review of the suitability of all sitting judges and prosecutors—an initiative of the Office of the High Representative (OHR)—would commence.55 But conducted as they were by Bosnian commissions and councils, albeit under international supervision, these reviews led in 2001 to the removal from office of only three judges and no prosecutors, despite the fact that some 700 complaints 53

International Peace Academy, 'Managing Security Challenges in PostConflict Peacebuilding', report of an IPA workshop held in Ottawa on 22-23 June 2001,10. 54 SC Res 1184 (1998) of 16 July 1998 approved the establishment by UNMIBH of JSAP. The programme was discontinued in November 2000 when US Congressional funding for it was cut. See Elizabeth M. Cousens and Charles K. Cater, Towards Peace in Bosnia: Implementing the Dayton Accords (Boulder, CO: Lynne Rienner, 2001), 70 (fn. 60). 55 18th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 12 March 2001, para. 47.

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56

against judges and prosecutors had been received. Although the HR is empowered to dismiss judicial officials, and has on several occasions done so, excessive use of his authority for this purpose risks undermining the 'ownership' and integrity of a domestic institution. This difficulty raises questions about the appropriate use of international executive authority that are examined in Chapter 8. In Kosovo and East Timor, the challenge was compounded by the fact that the collapse of the administrative structures, combined with a history of politically or ethnically motivated appointments by the Serb and Indonesian authorities, meant that there were very few judges and prosecutors remaining in Kosovo after the war and none at all in East Timor. Moreover, many courtrooms in Kosovo had either been mined or booby-trapped by the departing Serb forces, records dislocated or destroyed, and all valuable office equipment stolen, while in East Timor the situation was even worse: an estimated 70 per cent of all administrative buildings had been destroyed in the violence of September 1999, with most court buildings having been torched and looted, and all court equipment, registers, records, and archives dislocated or burned.57 So thorough was the destruction in East Timor that even law books and other legal educational resources were destroyed, and UNTAET had to seek donations of materials from private law firms and law schools in Indonesia and Australia. Unlike in Bosnia and Herzegovina, therefore, the United Nations in Kosovo and East Timor was assigned the task of building a judiciary from the ground up—literally. At the same time that both territories were without adequate resources, there was a pressing need for immediate judicial action. In Kosovo, the surge in violent crime in the wake of the withdrawal of the Serb and Yugoslav authorities prompted KFOR to conduct large-scale arrests to restore public order, and within two weeks it had more than 200 detainees in its custody.58 In East Timor, similarly, INTERFET arrested more than twenty-five individuals on charges 56 Several judges and prosecutors, however, resigned from their posts as a consequence of the review process. See Independent Judicial Commission, 'Progress Report April-June 2001', 15 June 2001, available at www.hjpc.ba. 57 Hansjorg Strohmeyer, 'Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor', American Journal of International Law, 95/1 (2001), 50; O'Neill, Kosovo, 75; World Bank, 'Report of the Joint Assessment Mission to East Timor', 17 December 1999, Summary Paper, available at www.worldbank.org/html/extdr/offrep/eap/etimor/donorsmtg99/ j amsummarytablefinal.pdf. 58 Strohmeyer, 'Collapse and Reconstruction of a Judicial System', 49.

62 Public Order and Internal Security of serious violations of international humanitarian and human rights law committed during the post-ballot violence. However, there were no indigenous judicial structures in place to deal with detainees and KFOR, in particular, was not prepared to carry out the necessary judicial functions. (INTERFET improvised and quickly established detention procedures that were noteworthy for their respect for due process.)59 Military lawyers might have assisted with the execution of judicial functions, pending the establishment of appropriate civilian offices, but they were not deployed as part of the multinational forces. Faced with a judicial vacuum, TAs have three choices: they can seek to appoint local judges and prosecutors as quickly as possible; they can bring in international professionals as an interim measure; or they can employ some combination of the two options. In the event, the TAs in both Kosovo and East Timor relied principally on local capacity, weak though it was, in the first instance. On 28 June 1999, fifteen days after his arrival in Kosovo, Sergio Vieira de Mello, the TA ad interim^ established a Joint Advisory Council on Provisional Judicial Appointments (comprising two Kosovo Albanians, one Muslim Slav, one Serb, and three internationals), who in turn nominated nine judges and prosecutors—five Albanians, three Serbs, and one ethnic Turk.60 The judges and prosecutors served as a mobile unit which, by mid-July, had conducted hearings on 249 detainees, resulting in the release of 112 of them.61 Members of the judiciary came under intense pressure—in the form of threats, intimidation, and violent attacks—not to pursue investigations against certain suspects despite compelling incriminating evidence. The UN Secretary-General, in his December 1999 report to the Security Council, expressed concern as a result about 'impunity... emerging as a problem that undermines the substantial efforts to build an independent legal system and a police force that respects human rights'.62 UNMIK decided that same month, therefore, to appoint international judges and prosecutors alongside their local counterparts, and in December 2000, in a further effort to curb bias, authorized the establishment of majority panels of international judges, at the discretion of the TA.63 In East Timor, too, local 59

Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004), 60 117-18. UNMIK Emergency Decree 1999/1,28 June 1999. 61 Strohmeyer, 'Collapse and Reconstruction of a Judicial System', 53. 62 Report of Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/l999/1250,23 December 1999, para. 84. 63 UNMIK Regulation No. 2000/64, On Assignment of International Judges/Prosecutors and/or Change of Venue, 15 December 2000.

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judges and prosecutors were complemented by international judges and prosecutors, to deal in particular with 'serious criminal offences' associated with the atrocities committed in 1999.64 In both cases international judicial officials have come to play a critical supporting role but their use raises important questions about how much and how quickly to devolve responsibility to local officials. On the one hand, international judges and prosecutors, assuming that they are available, can offer immediate legal expertise which may otherwise be in short supply. In addition, they are less susceptible to local pressures that will inevitably arise in dealing with cases of war crimes, ethnically motivated crimes, organized crime, and other sensitive charges. On the other hand, as with other aspects of international administration, the use of international judges and prosecutors hampers the development of autonomous capacity. Although in principle the presence of these professionals creates opportunities for the transfer of knowledge, the experience in Kosovo suggests that international judges and prosecutors, unless they are deployed in large enough numbers, will be too busy with the preparation of their own cases to be able to provide training or assistance to others. Or their efforts to perform a mentoring function may be hampered by language problems or a lack of ability to transfer their skills, as was the case in East Timor.65 There is also the related matter of local knowledge. International judges and prosecutors will usually not be acquainted with the local laws of a given territory, yet both UNMIK and UNTAET had decided that the applicable law in Kosovo and East Timor respectively should be the laws that had been in effect in each territory prior to the establishment of the UN administrations, insofar as these laws did not conflict with internationally recognized human rights standards, the fulfilment of the UN mandate, and any regulations issued by the TA.66 (Kosovo Albanians objected vigorously to the application of Yugoslav laws that they saw as an instrument of repression, and on 12 December 1999 UNMIK acquiesced in their demands that the applicable law should be the law in force before the revocation of Kosovo's autonomy 64

UNTAET Regulation No. 2000/11, On the Organization of Courts in East Timor, 6 March 2000. 65 Author interview with former member of the Constituent Assembly of East Timor, New York, 20 October 2002. 66 UNMIK Regulation No. 1999/1, On the Authority of the Interim Administration in Kosovo, 25 July 1999, and UNTAET Regulation No. 1999/1, On the Authority of the Transitional Administration in East Timor, 27 November 1999.

64 Public Order and Internal Security by Belgrade on 22 March 1989.)67 Had there existed for this purpose an international interim legal code in which mission personnel could be pre-trained—as the Brahimi report on peace operations would later recommend68—international officials would have been better able to operate competently in an alien environment. Alternatively, some have advocated the use of martial law in the early 'emergency' phase of international administration.69 As it was, in both cases local skilled professionals were in short supply and often had insufficient knowledge of the relevant international human rights standards, while considerable confusion reigned among the internationals—from the military forces who relied on their own, and hence different, legal standards in the early phase of the operations to the judges and prosecutors eventually brought in who, because they were unfamiliar with the local laws, were not always aware of provisions of them that were incompatible with international standards. In the case of East Timor, in particular, this led to the persistence of dubious local practices of Indonesian origin, such as court-ordered detentions on the grounds of defamation—in contravention of human rights standards on freedom of expression—that were not remedied for some time.70 The United Nations itself has come under strong criticism for its use of executive orders to detain criminal suspects without the authorization of, or review by, any court and indeed sometimes in spite of court orders to release the suspects.71 In one case Hans Haekkerup ordered the detention of four Kosovo Albanians implicated in the bombing of a KFOR-escorted bus, on 16 February 2001, that killed ten Serb civilians and wounded forty others. Although the Pristina District Court—made up of international judges—ordered their release, the suspects remained in detention as a result of successive executive orders. Defending the transitional administration's right to extend pretrial detention through executive orders, UNMIK argued in June 2001 that Kosovo 'still ranks as an internationally-recognized emergency' 67

UNMIK Regulation No. 1999/24, On the Law Applicable in Kosovo, and UNMIK Regulation No. 1999/25, Amending UNMIK Regulation No. 1999/1 on the Authority of the Interim Administration in Kosovo. 68 Report of the Panel on United Nations Peace Operations, para. 81. The report is known as the 'Brahimi Report' after the panel chair Lakhdar Brahimi. 69 O'Neill, Kosovo, 75. 70 Amnesty International, 'East Timor: Justice Past, Present and Future', AI Report No. ASA 57/001/2001, July 2001,23-6. 71 'Detention Review Commission Supports Detention of Bus Bombing Suspects', UNMIK Press Release 21 September 2001 (UNMIK/PR/649). See also Amnesty International, Report 2002 (London: Amnesty International, 2002), 270.

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and that under such circumstances 'international human rights standards accept the need for special measures that, in the wider interests of security, and under prescribed legal conditions, allow authorities to respond to the findings of intelligence that are not able to be presented to the court system'.72 In response to criticism by the Ombudsperson for Kosovo, Amnesty International, and other international observers, Haekkerup in August 2001 established a Detention Review Commission, comprising three international judges, to review extra-judicial detentions based on executive orders.73 The commission, whose legitimacy has been challenged by the Ombudsperson, upheld the SRSG's continued detention of the suspects until December, at which time they were released by order of the Kosovo Supreme Court. Detention can also be a problem for transitional administrations for a very different reason: a lack of detention facilities. In both Kosovo and East Timor, the withdrawal of security forces rendered many if not all of the prison facilities unusable. Initially, as a result, individuals detained by the multinational forces had to be held in makeshift military facilities, sometimes consisting of nothing more than tents guarded by military officers. So limited were the detention facilities that the UN civil police inherited from both KFOR and INTERFET that they had to restrict the number of arrests and, in some cases, release suspects arrested for criminal offences so that they could make space for individuals implicated in more serious crimes.74 The problem is compounded by the fact that donors are often reluctant to earmark their assistance for the construction of detention centres in contrast to what they regard as more 'positive' projects. And while the international administrations appear largely to have respected humanitarian law in the treatment of detainees under their charge, the abuse of prisoners by US forces in Iraq and the implications it has had for the legitimacy of the military occupation there highlights the importance of ensuring that the highest standards of conduct are maintained. One major challenge for transitional authorities that cuts across all three aspects of order and security is that of war criminals. The importance of apprehending, prosecuting, and incarcerating war criminals 72

UNMIK News No. 98, 25 June 2001, available at www.unmikonline.org/ pub/news/nl98.html. Kouchner also made recourse to detention on executive order. 73 UNMIK Regulation No. 2001/18, On the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders, 25 August 2001. 74 Strohmeyer, 'Collapse and Reconstruction of a Judicial System', 57-8; author interviews with UNMIK justice officials.

66 Public Order and Internal Security is difficult to overstate. In Jacques Paul Klein's estimate, it is 'the single most important action to consolidate post-conflict peace implementation'.75 War criminals at large not only represent a continuing threat to individuals and communities but they also can inhibit inter-ethnic reconciliation, undermine the rule of law, distort local politics and economics, and prevent the achievement of psychological closure so that a nation can move beyond the traumas of its past. In view of the nefarious and pervasive influence that war criminals at large can exert locally, international authorities need to adopt robust measures from the outset to weaken and eventually remove these individuals from society. International tribunals, where they have even existed for this purpose, have only had finite resources at their disposal, which means that they have had to concentrate on the major criminals. War crimes are often too politically charged, however, for local courts to be able to prosecute them fairly. For that reason UNMIK had proposed the creation of a Kosovo War and Ethnic Crimes Court, comprising international and local judges, in December 1999, but the UN's Advisory Committee on Administrative and Budgetary Questions rejected the proposal on budgetary grounds.76 UNTAET was somewhat more successful: in June 2000 it established a Serious Crimes Unit to prosecute war crimes and other major offences before mixed panels of international and local judges.77 However, a lack of resources and personnel as well as management problems have led to disappointing results.78 Moreover, those under indictment include senior Indonesian officials and Jakarta has been generally unwilling to assist in their prosecution. Formal reconciliation processes, where they exist, can reinforce judicial processes. In East Timor, the United Nations established a Commission for Reception, Trust and Reconciliation (CAVR) in July 2001, at the suggestion of the National Council of Timorese Resistance (CNRT), with a mandate to investigate and analyse the 75

Jacques Paul Klein, 'Why We Must Enforce Judgement Day on Balkans War Criminals', Jane's Defence Weekly, 8 March 2000, 30. 76 'Why pour money into a mini-ICTY that will cost a fortune?', one UN official is reported to have said. Cited in Mark Baskin, 'Lessons Learned on UNMIK Judiciary', report commissioned by the Department of Foreign Affairs and International Trade, Government of Canada, 5 June 2001, paras 45-8. 77 UNTAET Regulation No. 2000/11 and UNTAET Regulation No. 2000/15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000. 78 Amnesty International, 'East Timor: Justice Past, Present and Future', 2; Chesterman, You, The People, 173.

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human rights violations that occurred between 25 April 1974 and 25 October 1999 and to facilitate reconciliation between the perpetrators of lesser crimes and their victims.79 (The Office of the General Prosecutor reviews all cases and transfers any seemingly serious crimes to the courts.) As of November 2003, some 5,900 witnesses had given testimony while more than 1,100 perpetrators of minor crimes had come forward to enter into a 'community reconciliation agreement', which typically entails an admission of the crime, a request of forgiveness, and the levying of a fine (an apology, community service, or an act of 'restorative justice' such as rebuilding the house that the perpetrator has burned down).80 Reconciliation is highly valued in East Timorese society and its absence from the Western models of justice employed by UNTAET further underscores the importance of international sensitivity to local culture.81 In all of these war-torn territories, the newly established police, justice, and penal systems remain fragile and deficient. Where, however, international administrations have been able to constitute these systems from scratch—selecting and training police, judicial, and correctional officers—and where they have also exercised executive authority over these institutions, the results have generally been more positive than where efforts have been made simply to reform existing institutions. The use of international police and judges in the early stages of an operation has also helped to assure the integrity of the security regime. Whether ultimately international administrators will have established sustainable institutions and practices that are able to maintain order and security in a manner consistent with international standards remains to be seen. Continued training, mentoring, oversight, and the provision of resources by the international community will be necessary. But so too will be commitment on the part of the indigenous populations to the rule of law as opposed to partial and capricious rule.

79

UNTAET Regulation No. 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, 13 July 2001. 80 La'o Hamutuk, The La'o Hamutuk Bulletin (Dili), 4/5 (2003), available at www. etan. org/lh/bulletins/bulletinv4n5 .html. 81 Tanja Hohe, 'Justice without Judiciary in East Timor', Conflict, Security and Development, 3/3 (2003), 335-57.

3

Refugees and Internally Displaced Persons

Public security is intimately related to the return of refugees and internally displaced persons (IDPs), particularly in the context of intra-state conflicts where the migration of civilians is often not an accident but a deliberate aim of combatants who are seeking to achieve ethnic homogeneity on the territory that they control. Political opponents can also be the targets of forced migration (or, more accurately perhaps, terrorization), as they were in Kosovo and East Timor. Where ethnic minorities or political opponents are not reasonably free from the threat of harassment or physical attack, and where the perpetrators of the original crimes against them remain at large, they are unlikely to be willing to risk life and property to return to their regions of origin. The removal of mines and unexploded ordnance (such as cluster bombs) may also be necessary for the assurance of physical security. Other factors that can have an impact on the return of refugees and displaced persons include employment opportunities, the availability of housing and social services (such as schools and health care), and a legal infrastructure that ensures the restoration of property, citizenship, and other fundamental rights that an individual may have lost. Although the return and reintegration of refugees and IDPs is an integral part of post-conflict peacebuilding operations generally, it is arguably not a distinctive feature of international administration in particular. Yet it is one of the principal benchmarks by which the success of transitional administrations is frequently measured.1 This is not only because forcible displacement is often a prominent characteristic of these conflicts but also because, until resolved, 1

See, for instance, International Crisis Group, Is Dayton Failing? Bosnia Four Years after the Peace Agreement (Brussels: ICG, 1999), 83.

Refugees and Internally Displaced Persons 69 displacement can be a destabilizing factor in a conflict zone. Refugees, in particular, are frequently fodder for political radicalization.2 Having lost everything, refugees may be unwilling to accept concessions and may thus seek to block a negotiated settlement. Their plight can also be exploited by nationalist politicians in neighbouring states or regions. The frustration and resentment that refugees feel may also incline some among them towards acts of extremism while refugee camps can serve as a recruitment source and breeding ground for militancy. For transitional administrators (TAs), then, the return and reintegration of refugees and IDPs can be both a pressing security need as well as a humanitarian one.

The Scope of the Problem Just as large numbers of civilian casualties are a defining characteristic of the 'new wars' of the post-Cold War period, so is the forcible displacement of civilian populations a common feature of these conflicts. In Bosnia and Herzegovina (BiH), as many as 2.2 million people out of a total pre-war population of 4.3 million were forcibly displaced during the war, 1 million to locations within the country and 1.2 million abroad.3 By the time of the establishment of the UN Transitional Administration for Eastern Slavonia (UNTAES) in January 1996, meanwhile, approximately 90,000 Croats had been displaced from Eastern Slavonia to other parts of Croatia and 70,000 Serbs displaced to the region in relation to a total pre-war population of 201,OOO.4 In Kosovo, at least 860,000 Albanians out of a population of 2 million Kosovars were expelled from the territory by Serb and Yugoslav forces before and during the NATO campaign,5 whereas some 280,000 non-Albanians—among whom much of the Serb community—were displaced from or within Kosovo after the 2 Arthur C. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century (Oxford: Oxford University Press, 2002), 72. 3 Amnesty International, 'Bosnia-Herzegovina: The International Community's Responsibility to Ensure Human Rights', 31 May 1996, 84. 4 Jelena Smoljan, 'Socio-economic Aspects of Peacebuilding: UNTAES and the Organization of Employment in Eastern Slavonia', International Peacekeeping, 10/2 (2003), 49 (fn. 57). An estimated 22,000 Serbs, while registered as domiciled in Eastern Slavonia at the time, actually lived in the Federal Republic of Yugoslavia. 5 Organization for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights, Kosovo/Kosova: As Seen, As Told, Part I (Warsaw: OSCE, 1999), ch. 14, available at www.osce.org/kosovo/ documents/reports/hr/partl/chl4.htm#numbers.

70 Refugees and Internally Displaced Persons Kosovo Force (KFOR) deployed in June 1999.6 Finally, in East Timor, nearly the entire population of 890,000 was uprooted following the 'popular consultation' in August 1999: approximately half a million fled to the interior of the territory to escape the violence of the proIndonesia militias while another 250,000 fled or were forcibly displaced to refugee camps in West Timor.7 These statistics are staggering when put into broader perspective: they indicate that from 50 per cent to nearly 85 per cent of the territorial populations in question were displaced as a consequence of violence or the threat of violence. Even these statistics, dramatic though they are, mask the human reality of forced displacement. Consider, for instance, what the Organization for Security and Co-operation in Europe (OSCE) calls the 'typical' pattern of expulsion of ethnic Albanians from Kosovo in the period from March to June 1999: Typically, Serbian forces would shell a village for some hours, with the result that Kosovo Albanians hid in basements or fled to the hills. Then, when the shelling stopped, Serb forces including police, VJ [Yugoslav Army] and/or paramilitaries would enter the village, shooting into the air. They would break down doors to enter Kosovo Albanian houses, threaten everyone who had not already fled and order them to leave, either instantly, within a few minutes, or sometimes within some hours. Sometimes village elders or religious leaders are described as negotiating the implementation of the Serb demands; sometimes certain local Serbs were selected to spread the word that the Kosovo Albanians had to leave; sometimes the first house to which the forces came simply served as an example to other villagers.8

If the pattern of events responsible for such massive displacements have in many respects been similar in each case, the challenges confronting international administrators in the aftermath have not been. The UN Interim Administration Mission in Kosovo (UNMIK) and UN Transitional Administration in East Timor (UNTAET) were both established in the midst of emergencies and thus had to respond 6

US Committee for Refugees, 'Country Report: Yugoslavia (2002)', available at www.refugees.org/world/countryrpt/europe/yugoslavia.htm. These figures are disputed. European Stability Initiative (ESI) estimates that two-thirds of the Kosovo Serb pre-war population remain in Kosovo. See ESI, "The Lausanne Principle: Multiethnicity, Territory and the Future of Kosovo's Serbs', 7 June 2004, 7, available at www.esiweb.org. 7 US Committee for Refugees, 'Indonesia: Situation in East/West Timor, Sectarian Violence Elsewhere', 22 February 1999, available at www.refugees.org/ news/crisis/indonesia/indonesia.htm. 8 OSCE, Kosovo/Kosova: As Seen, As Told, Part I, ch. 14.

Refugees and Internally Displaced Persons 71 to displacements that had occurred fairly recently or, with respect to the 'reverse ethnic cleansing' of Serbs from Kosovo, were actually taking place on KFOR's and UNMIK's watch. UNTAES and the international administration of BiH, by contrast, had to deal largely (though not entirely) with displacement problems of longer standing; as a result many of the displaced had re-settled, at least temporarily, and thus would need to be uprooted again as part of a stable and, it was to be hoped, just solution. In the cases of Eastern Slavonia and BiH, moreover, the displaced faced continued resistance to their return from ethnic majorities, while in Kosovo and East Timor, the opposing authorities—and the populations that supported them— had largely withdrawn, eliminating what might otherwise have been a serious obstacle to return. (This was true, of course, for Kosovo Albanians but not for Kosovo Serbs, many of whom could not return in safety.) In many respects, Eastern Slavonia and BiH represent the most ambitious return agendas. There the international community established the highest benchmark of success: not merely to return more than 2 million refugees and displaced persons—itself an extraordinarily difficult task—but to return them to their 'homes of origin'.9 Similarly high objectives had been established earlier for Cyprus (1974), Armenia and Azerbaijan (1993), Abkhazia and Georgia (1993), and Tajikistan (1995).10 As Elizabeth Cousens and Charles Cater observe, this was 'a level of specificity that could be said to extend beyond existing standards or practices for the rights of the displaced'.11 As such it is evidence, arguably, of a normative shift occurring in international 9

Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, 12 November 1995, para. 4; The General Framework Agreement for Peace in Bosnia and Herzegovina^ Annex 7, Art. 1(1). This right is also enshrined in Art. 11(5) of the Constitution of Bosnia and Herzegovina. SC Res 1244 (1999) also refers to the 'right of all refugees and displaced persons to return to their homes in safety' but subsequent UNMIK documents refer instead to 'places of origin'. 10 SC Res 361 (1974) on Cyprus urges the parties 'to permit persons who wish to do so to return to their homes in safety' (para. 4); SC Res 853 (1993) on Armenia and Azerbaijan requests the Secretary-General and relevant international agencies 'to assist displaced persons to return to their homes' (para. 12); SC Res 876 (1993) on Abkhazia and Georgia 'affirms the right of refugees and displaced persons to return to their homes' (para. 5); and SC Res 999 (1995) on Tajikistan refers to the obligations of the parties to 'cooperate in ensuring the voluntary return, in dignity and safety, of all refugees and displaced persons to their homes' (para. 8). 11 Elizabeth M. Cousens and Charles K. Cater, Toward Peace in Bosnia: Implementing the Dayton Accords (Boulder, CO: Lynne Rienner, 2001), 72.

72 Refugees and Internally Displaced Persons human rights law that is tending towards the establishment of a principle of post-conflict restitution of property.12 Where their properties could not be restored to them, refugees and displaced persons in Eastern Slavonia and BiH were entitled to compensation but funds have generally not been available for this purpose: donors have not been interested in paying for destroyed homes (as opposed to constructing new ones) and, in the case of BiH, the two entities have not had any interest in providing funds for this purpose either.13 Indeed, one of the chief obstacles to return in BiH—as we have also seen with respect to policing—is that the process as originally conceived was dependent on the good will and cooperation of the local authorities. Dayton mandated the authorities to 'take all necessary steps to prevent activities within their territories which would hinder or impede the safe and voluntary return of refugees and displaced persons',14 including the repeal of discriminatory legislation, the prevention and suppression of incitements to ethnic hostility, the protection of ethnic minority populations, and the prosecution of human rights violations against ethnic minority groups by persons in the military, paramilitary, and police forces and other public servants. The authorities, however, have had little interest in measures that would dilute the ethnic homogeneity of the territories that they control, either by allowing minorities to return or by encouraging members of their own ethnic group to return to the other entity. They have generally been unwilling, therefore, to cooperate with international agencies. To the contrary, in one of their earliest moves the parliaments of both the Federation and Republika Srpska (RS) passed legislation that gave the current (illegal) occupants of property the legal right to remain. Reliance on the cooperation and good will of the local parties to facilitate returns in the first few years after Dayton yielded 12

See UN Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 'Economic, Social and Cultural Rights: The Return of Refugees' or Displaced Persons' Property', UN Doc E/CN.4/Sub.2/2002/17, 12 June 2002, esp. paras 29-41. 13 The Basic Agreement refers in general terms to the 'right...to receive compensation for property that cannot be returned' (para. 9) whereas The General Framework Agreement for Peace in Bosnia and Herzegovina contains a more specific provision: Annex 7, Art. 1(1) mandates the establishment of a Commission for Displaced Persons and Refugees to receive and decide any claims for real property, including compensation awards (Art. VII). 14 The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, Art. 1(3).

Refugees and Internally Displaced Persons 73 predictable results. Whereas the United Nations High Commissioner for Refugees (UNHCR), the lead agency for the purpose of orchestrating returns, had anticipated the repatriation of as many as 400,000 refugees in 1996—the first year of international supervision—only 88,039 returned. Refugee returns in subsequent years were scarcely any different: 120,280 in 1997; 110,000 in 1998; and a mere 31,650 in 1999 for a total of 349,969—against a post-war refugee pool of 1.2 million—over four years.15 The figures for returns of internally displaced persons were much the same: 295,991, or less than one-third of the total, by the end of 1999.16 The vast majority of these returns, moreover, were not to homes of origin but to areas where the returnee's ethnic group was dominant. The return of minorities to majority areas—what is known as 'minority returns'—was only 128,767 by the end of 1999 or little more than 5 per cent of all refugees and displaced persons.17 A variety of strategies were employed to promote return—including the use of incentives to municipalities, the creation of administrative mechanisms, and targeted campaigns18—but it was not until late 1999 that minority returns began to increase steadily, including to towns that had experienced some of the fiercest fighting and most thorough ethnic cleansing during the war, such as 2epce, Kiseljak, and Vitez in Central Bosnia, and Bijeljina, Prijedor, and Srebrenica in RS.19 More than 92,000 minority returns were registered in 2001, representing 93 per cent of all returns that year and a 36 per cent increase over returns in 2000 which, in turn, had witnessed a 63 per cent increase over 1999.20 In reality the number of returns was even greater, as not all 15

UNHCR figures cited in Cousens and Cater, Toward Peace in Bosnia, 73. Additionally, some refugees had been granted citizenship or permanent residence in other countries. Carl Bildt, the former HR, estimates that as many as 350,000 refugees had either returned or resettled in 1996. See his Peace Journey: The Struggle for Peace in Bosnia (London: Weidenfeld & Nicolson, 1998), 314. 16 Cousens and Cater, Toward Peace in Bosnia, 75. 17 Ibid., 79; International Crisis Group, Is Dayton Failing?, 84-5. 18 For a discussion of the various strategies employed prior to 1999, see Marcus Cox, 'The Dayton Agreement in Bosnia and Herzegovina: A Study of Implementation Strategies', British Year Book of International Law 1998,69 (1999), 231-5. 19 'Refugees in Bosnia and Herzegovina: Prospects for Reintegration', IISS Strategic Comments, 6/8 (October 2000). 20 See US Committee for Refugees, 'Country Report: Bosnia and Herzegovina (2002)' available at www.refugees.org/world/countryrpt/europe/2002/bosnia_ and_hercegovina.cfm, and 22nd Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 14 May 2002, para. 30.

74 Refugees and Internally Displaced Persons returnees would register so that they might continue to draw benefits from the other entity. (By the same token, not all returnees remained: some returned only to repossess and then sell off their homes.21 And the fact is that despite these returns, the country remains basically divided into three ethnic zones.) Several reasons explain this positive trend, uneven though it has been, but one reason in particular has been the exercise of the 'Bonn powers' by High Representative (HR) Wolfgang Petritsch. In an effort to enhance the powers of the HR, the Peace Implementation Council (PIC), at its meeting in Bonn in December 1997, conferred on the HR the authority to impose binding 'interim' measures to take effect when the local parties were unable to reach agreement, and to remove from public office individuals who violated their legal commitments under the Dayton Accord or obstructed its implementation. (So as not to appear to be creating additional powers for the HR other than those to which the signatories had agreed in the Dayton Accord, the Bonn PIC merely endorsed the HR's 'intention to use his final authority in theatre regarding interpretation' of Annex 10 of the Dayton Accord 'in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary... '.)22 On the basis of these sweeping powers, Petritsch, starting in October 1999, imposed a series of changes to property-related laws in both entities, aiming to remove legal obstacles to return, and to dismiss local officials who failed to implement them: twenty-two public and housing officials were dismissed in November 1999 and another fifteen the following year. The property-law strategy proved to be effective for several reasons. First, it relied on the self-interest of individuals who were encouraged to seek repossession of their property by pressing their claims through the Dayton-instituted Commission for Displaced Persons and Refugees, later renamed the Commission for Real Property Claims (CRPC). Second, it subordinated refugee/displaced person return to 21

The high water mark was reached in 2002, with 102,111 minority returns recorded that year. The following year the number decreased to 44,868. UNHCR, 'Total Minority Returns in/to BiH from 1996 to 31 January 2004', available at www.unhcr.ba/return/index.htm. In Kosovo, similarly, nearly all of the displaced ethnic Serbs who managed to recover their homes as of August 2003 sold them, often to the families occupying them. See Anneke Rachel Smit, 'Pushing Restitution, Not Reconciliation', Balkan Reconstruction Report/Transitions Online, 7 August 2003, available at www.tol.cz. 22 Peace Implementation Conference, 'Bosnia and Herzegovina 1998: Selfsustaining Structures', Bonn, 10 December 1997, Art. XI, available at www.ohr.int/pic/default.asp ?content_id=5182.

Refugees and Internally Displaced Persons 75 the rule of (property) law and, as the International Crisis Group observes, thus 'succeeded in turning what was formerly a highly politicized issue into a simple question of adherence to the law'.23 For instance, the OSCE Provisional Election Commission ruled in 1999 that elected officials with CRPC decisions against them would not be able to keep their positions. (Out of 4,000 elected officials in late 1999, some 1,200 were found to be in violation of property laws.)24 However, without the HR's Bonn powers, self-interest and prioritization of the rule of law would hardly have been sufficient to counter local obstruction, which in some areas continues to be an impediment to returns. As this experience suggests, a TA in possession of full executive authority is better equipped than is an administrator with weaker authority to meet the challenges posed by local opposition—an issue to which we return later in this volume. Other factors also account for these positive trends. Although Annex 7 of the Dayton Accord establishes the rights of all displaced individuals to return to their homes of origin and requires the parties to the agreement to ensure that these individuals are permitted to return in safety and 'without risk of harassment, intimidation, persecution, or discrimination', the impunity that war criminals have long enjoyed on the territory has sometimes resulted in a subversion of these guarantees. In mid-1997, however, Stabilization Force (SFOR) troops began to arrest indicted war criminals and, with the International Police Task Force (IPTF), to dismantle para-state intelligence structures.25 Then, in November 1998, SFOR for the first time started also to provide security for minority returns.26 As a result, minorities began to feel secure enough to return to their homes. The flipside of this problem, for Eastern Slavonia, was to be able to provide sufficient assurances to displaced Serbs who might wish to return to their homes elsewhere in Croatia that they would be secure in governmentcontrolled territory—assurances that UNTAES could not and Zagreb did not provide. To the contrary, ambiguities in the implementation of Croatia's Amnesty Law and the questionable legal standards applied by some Croatian courts when dealing with war crimes allegedly 23

International Crisis Group, 'Bosnia's Refugee Logjam Breaks: Is the International Community Ready?' ICG Balkans Report No. 95, 30 May 2000,6. 24 Author interview with OSCE official, Sarajevo. 25 European Stability Initiative, 'Reshaping International Priorities in Bosnia and Herzegovina. Part III: The End of the Nationalist Regimes and the Future of the Bosnian State', 22 March 2001,10-12. 26 Author interview with OHR official, Sarajevo.

76 Refugees and Internally Displaced Persons committed by Serbs left Eastern Slavonian Serbs in doubt as to whether they would be subject to fair treatment should they choose to return to their homes.27 UNTAES could only petition Zagreb, as it did with limited success, to alter its policies. Regional developments have also been relevant to the return of refugees and displaced persons. The advent in January 2000 of a new Croatian government unwilling to continue the Tudjman government's policy of supporting the militancy of Bosnian Croats, left the latter more dependent on international aid and thus more responsive to international demands—notwithstanding moves by the Bosnian Croats in March 2001 to challenge the Dayton framework and establish a 'temporary Croat self-government'. Tudjman had even threatened to withdraw support from Bosnian Croat refugees in Croatia who wished to return to BiH unless they returned to areas where Croats maintained majority control.28 Similarly, Indonesia's tolerance of antiindependence militia operating in West Timor inhibited the return of refugees to East Timor, many of whom were effectively prisoners in camps that the militia controlled.29 And, finally, the forcible repatriation of refugees by host states—a practice made easier by the fact that increasing numbers of refugees today are granted only 'temporary protection' rather than asylum—has also affected the flow of returns. Thus Germany, which had accepted some 345,000 refugees from throughout the former Yugoslavia in the 1990s, chose to ignore the advice of the UNHCR and began to repatriate refugees to BiH only ten months after the war ended and before the necessary economic and security conditions were in place.30 The degree of influence that TAs— and the broader international community they represent—can exert on regional actors in such cases will, of course, vary. Two additional factors have had a significant bearing on the incidence of returns. The first is the availability of economic resources and social services. In order to attract and maintain returnees, it is necessary to provide them with adequate jobs, education, health care, and 27

Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 997/767,2 October 1997, paras 28-9. 28 See International Crisis Group, Is Dayton Failing*, 83 (fn. 208). 29 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/738, 26 July 2000, paras 16, 17, and 67. 30 Matthew J. Gibney, 'Between Control and Humanitarianism: Temporary Protection in Contemporary Europe', Georgetown Immigration Law Journal, 14/3 (2000), 694 and 701.

Refugees and Internally Displaced Persons 77 other social services at the local level.31 It was in part the failure of the Tudjman government to furnish such resources—for instance, the reluctance of the government to provide adequate economic support for Eastern Slavonia—that discouraged Serbs from remaining in the region.32 (The estimated number of Serb refugees who left the territory while under UN control ranges from approximately 13,000 (United Nations) to more than 47,000 (UNHCR Office in FRY).)33 The region had experienced a steep economic decline as a consequence of the war. Yet, as the UN Secretary-General observed in October 1997, the Tudjman government neglected to develop a 'consolidated economic policy' to address the reintegration of Eastern Slavonia34—a failing, some critics charge, that was aimed at actively discouraging Serbs from remaining in the region.35 In its defence, the Croatian government maintained that it required international assistance for this purpose (Croatia's post-war economic needs were indeed considerable) but such assistance was not forthcoming, in part because of Zagreb's poor human rights record, including its treatment of its Serb population— policies that tended, rightly or wrongly, to confirm the critics' views.36 The second further factor affecting returns is a comprehensive political and legal framework, properly enforced, that allows displaced persons to exercise fully their right to return. We have already noted the importance of such a framework in relation to the restitution of 31

4th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 10 December 1996, para. 51. 3 ^ Author interview with a former UNTAES official. For UN complaints about Zagreb's withholding of payment for public service (police) salaries, see Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 996/883,28 October 1996, para. 14. 33 Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l997/953, 4 December 1997, para. 6; FRY figures cited in Jelena Smoljan, 'Socio-Economic Aspects of Peacebuilding: UNTAES and the Process of Peaceful Reintegration of Eastern Slavonia' (D.Phil thesis, International Relations, University of Oxford, 2004), ch. 8. The Federal Republic of Yugoslavia (FRY) figure includes domiciled and internally displaced Serbs. 34 Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 997/767,2 October 1997, para. 17. 35 Author interviews with Croatian Serb politicians, Zagreb. 36 The US government, for instance, vetoed a proposed World Bank loan to Croatia in June 1997, citing Zagreb's failure to facilitate the return of Serb refugees to Croatia, among other objectionable policies.

78 Refugees and Internally Displaced Persons property to its legitimate owners (or to its prior occupants, since a clear determination of ownership may be difficult to establish where property records have been destroyed, where there are rival property claims, or in the case of socially owned property). However, more than property legislation may be required for this purpose. For many years in Croatia citizenship laws discriminated against former Serb residents who had fled during the war, many of them to BiH. (Their presence in RS—some 20,000 of them as of March 2004—has been a serious obstacle to Bosniac and Croat minority returns to that entity, demonstrating the importance of a coordinated approach for the entire region.)37 Of course, even with the proper legislation in place organized resistance by political elites at the local level may obstruct returns, with delays in the processing of documents, requests for unauthorized fees, or the failure to implement laws altogether. Continuous international monitoring and pressure are thus essential to ensure the integrity of the minority returns process—a role the OSCE plays in the former Yugoslavia although it is now accepted that hundreds of thousands of refugees and internally displaced persons throughout the region may never return, having established new lives for themselves elsewhere.38 As of November 2002, for instance, an estimated 128,000 Bosnian Croats were still living in Croatia, the overwhelming majority of whom (120,000) had obtained Croatian citizenship and expressed no desire to return to BiH.39 How successful, then, have international efforts been on balance? Here and elsewhere the answer depends, rather tautologically, on the criteria that are employed to measure success. If one is concerned with the sheer number of returns as a percentage of total registered refugees and IDPs, then UNMIK has been the most successful. But this is misleading as the vast majority of returns, in the case of Kosovo, were spontaneous Albanian returns for which UNMIK cannot claim any credit. Moreover, if one takes minority returns into account, then UNMIK has not been very successful at all: only 3.4 per cent of Serb and other minorities had returned by the end of 2003.40 Similarly, if one's time horizon is fairly short, then UNTAES can be considered 37

25th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 3 March 2004, 38 para. 54. Author interviews with OHR officials, Sarajevo. 39 Organization for Security and Co-operation in Europe, Mission to Croatia, 'Status Report No. 11', 18 November 2002,13. 40 UNHCR OCM Pristina, 'Minority Returns by Municipality of Return', 26 November 2002; and Report of the Secretary-General on the United Nations Interim Mission in Kosovo, UN Doc S/2004/71, 26 January 2004, para. 31.

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Figure 3.1 Refugee and IDP Returns Notes: ^Includes Croat IDPs returning to Eastern Slavonia and Serb IDPs returning from Eastern Slavonia to homes elsewhere in Croatia. **Includes Serbs and other minorities who relocated to Serbia or Montenegro, and does not include 600,000 ethnic Albanians displaced within Kosovo because of lack of data on return patterns. Sources: UNHCR; US Committee on Refugees; Norwegian Refugee Council; Reports of the UN Secretary-General; Croatian government Office for Displaced Persons, Refugees and Returnees; Kings College London, A Review of Peace Operations.

a qualified success and the administration of BiH much less so: in the latter case, as we have seen, minority returns were either negligible or extremely slow in the first three years (see Figure 3.1). A longer time horizon, however, is more favourable to the administration of BiH and less so to UNTAES: by January 2004 the number of registered returns to and within BiH had risen to 1 million (out of a total of 2.2 million displaced),41 whereas Croatia's 2001 census revealed that the Serb minority represented only 4.5 per cent of the total population, marking a two- thirds decline since 1991 —the result, in part, of the exodus of thousands of Serbs from the area formerly under UN control following its reintegration with Croatia.42 ESI estimates the number of Serb refugees and displaced persons to have been significantly fewer. See ESI, 'The Lausanne Principle', 6-10. 41 25th Report by the High Representative for Implementation of the Peace Agreement to the Secretary- General of the United Nations, 3 March 2004, para. 53. 42 Norwegian Refugee Council, 'Profile of Internal Displacement: Croatia', a report of the Global IDP Project, 13 August 2002, 19, available at

80 Refugees and Internally Displaced Persons How much responsibility, if any, does the United Nations bear for the failure to retain more Serbs in the region, and more generally, how long after a mission's expiry does responsibility extend? In evaluating these return efforts, moreover, one also needs to ask, whose success or failure? In the case of Eastern Slavonia, the United Nations negotiated a series of guarantees with the government of Croatia in an attempt to provide reassurances to the Serb population to encourage it to remain.43 However, implementation of these guarantees depended largely on the political will of the Croatian government and even if the government had been fully compliant, which it was not, in the absence of an economic redevelopment scheme the guarantees by themselves might not have been sufficient inducement. Where does responsibility lie, then—with the United Nations, Zagreb, or, for that matter, member states of the United Nations with both influence over Croatia and economic resources that might have been used to assist Croatia? Moreover, some Serbs were determined to leave Croatia regardless. The criteria for success are often a contested issue for peace operations—and no less so for the international administration of war-torn territories.

Contested Methods and Aims Alongside the operational challenges of facilitating the return of refugees and displaced persons, there are a number of normative issues that arise. The first concerns how and under what conditions returns are to be achieved—a question compounded by the fact that in contemporary international administrations several different www.idpproject.org. The OSCE reported on 26 January 1999: One year after the completion of the UNTAES mandate on 15 January 1998, the integration of infrastructure and institutions in the Danube Region has been successful. However, the social and political atmosphere in the Region is not yet conducive to the integration of its Serb residents. The Mission's September 1998 Progress Report stated that: 'the integration of citizens of Serb nationality both as individuals and as a community has not yet succeeded—as evinced by the continuing departure of such citizens for the FRY and other countries.' Events since then have only confirmed the accuracy of this assessment. There has been no significant progress. ([3rd] Report of the OSCE Mission to the Republic of Croatia on Croatia's progress in meeting international commitments since September 1998, 26 January 1999, para. 21.) 43

See Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 997/953,4 December 1997, para. 7 and Annex I.

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agencies are likely to be engaged in the process, each with its own institutional bias or orientation. In BiH, there was a fundamental difference between the UNHCR and the OSCE with respect to the enforcement of property legislation that was put in place to facilitate returns. The legislation allowed for eviction in the case of unlawful occupation of property. The UNHCR, however, maintained that there might be compelling humanitarian reasons that would make it unacceptable to evict individuals, while the OSCE has tended to favour strict adherence to the law without exceptions.44 (Even the unavailability of alternative accommodation, to which qualifying individuals are legally entitled, was not to stand in the way of repossession.)45 Sometimes tensions may even emerge within the same organization. In Kosovo, in 2001, UNHCR headquarters was advising against the return of Serb refugees, fearful that their safety could not be assured, while at the same time the UN humanitarian coordinator for Kosovo was pressing UNMIK to assist these returns as a matter of priority.46 These differences underscore the political complexion of these operations, for international administrators are motivated not only by the gravity of the humanitarian situation but also by the fact that returns are a key measure in assessing the success of a transitional administration. They also highlight what by now is axiomatic with regard to complex peace operations: the greater the number of players, the more difficult it is to achieve coordination. It is precisely such difficulty that led the Office of the High Representative (OHR) to establish the Reconstruction and Return Task Force (RRTF) in early 1997, which allowed for a much more coordinated approach to the promotion of returns. Another area of contestation are the aims of transitional administrations associated with refugee and IDP returns. International authorities sometimes express their aspirations for returns in terms of restoring the status quo ante—that is, re-establishing, where appropriate, the mixed communities that existed prior to the war. Thus the UN Secretary-General, in laying out the purposes of UNTAES to the 44

Author interviews with UNHCR and OSCE officials, Sarajevo. Alternative accommodation was available to those 'who fall below a certain income threshold, have no assets, including allocated land, and have demonstrably made... every effort in their power to gain repossession of their pre-war property'. OHR Press Release, TLIP Agencies Reiterate Alternative Accommodation Criteria', 11 April 2002, available at www.ohr.int/ohr-dept/ presso/pressr/default.asp ?content_id=7371. 46 Helton, The Price of Indifference, 63. 45

82 Refugees and Internally Displaced Persons Security Council, specified that at the end of the transitional period Eastern Slavonia 'should...be multi-ethnic in character'.47 And US Ambassador Robert Gelbard, commenting on the efforts of international authorities in BiH, explained to a US Congressional committee in 1997: 'Our fundamental policy is predicated on the idea of restoring a multi-ethnic society.'48 This is not to suggest that refugee and IDP return is seen principally in instrumental terms—that is, as a means of restoring multi-ethnicity. The drive to promote returns is rooted fundamentally in respect for basic human rights, including protection against forced displacement and the right to return, and multi-ethnicity is the outcome of a policy that seeks to implement those rights. However, multi-ethnicity is also seen to be important for other reasons. The Bonn PIC (December 1997), for instance, identified a multi-ethnic Sarajevo as 'central to the implementation of the Peace Agreement' and stressed the importance of developing a Sarajevo return strategy as a result.49 Why? In part because of the symbolic nature of Sarajevo. A largely mono-ethnic capital city, the PIC concluded, would 'impair' Sarajevo's position as the capital city of a multi-ethnic state. Multi-ethnicity matters for yet other reasons. The establishment of multi-ethnic police forces is critical to instilling a sense of security among ethnic minorities, especially in regions where they have been the targets of hostility in the past. And ethnic representation on public bodies is important for their legitimacy and effectiveness. The question that does not arise, however, is whether the restoration of multi-ethnic societies is necessarily a proper and fitting objective, and even if it is, how far should efforts extend to realize that objective? Concerns about multi-ethnicity are largely contemporary concerns. The expulsion of some 2.5 million ethnic Germans from Czechoslovakia, Poland, Hungary, and Yugoslavia at the end of the Second World War did not, at the time, arouse much opposition abroad—and not only because there was little sympathy for the plight of Germans after the war. Even today the issue, which was revived in the context of the Czech Republic's accession to the European 47

Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), UN Doc S/l 995/1028,13 December 1995, para. 12. 48 Testimony of Ambassador Robert S. Gelbard, Bosnia: The U.S. Role, Hearing Before the Committee on International Relations, House of Representatives, 150th Congress, First Session, 7 November 1997, Document No. Y 4.IN 8/16:B 65/8 (Washington, DC: Government Printing Office, 1998), 46. 49 Peace Implementation Council, 'Bosnia and Herzegovina 1998: Selfsustaining Structures', Art. 111(1 )(g).

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Union in 2004, has been framed almost exclusively in terms of human rights rather than the loss of multi-ethnicity.50 Similarly, and consistent with earlier nation-building experiences elsewhere in Western Europe, the story of the twentieth-century development of Greece is in part the story of the suppression of minority culture and the homogenization of Greek society. As Adamantia Pollis observes, as a consequence of this experience, '[t]he multicultural and multi-religious legacy of Greece has been effaced from its history, its symbols, and its monuments'.51 This, too, has never aroused any significant opposition, and there has been no attempt to reconstitute the multi-ethnicity of, for instance, Salonica which, until the Second World War, was a cosmopolitan centre much like Sarajevo, where Greeks were a distinct minority. In Eastern Slavonia, BiH, and Kosovo, however, the restoration of multi-ethnicity is a fundamental goal that extends beyond an interest in ensuring respect for the right of refugees and displaced persons to return. (In East Timor, a largely mono-ethnic society, these broader considerations did not arise.) A few have questioned the importance of this goal, although they have been in the minority. Some have argued in favour of partition, suggesting that a more complete de-mixing of diverse populations would eliminate a source of conflict.52 Of course, the further separation of populations that would be required to achieve this outcome today would constitute a violation of human rights with which international authorities would now be complicit. And while there are precedents for measures of this kind—notably the 'population transfers' effected in the Balkans with the 1919 Treaty of Neuilly-sur-Seine and the 1923 Lausanne Convention—such displacements today would be incompatible with international human rights law.53 Others argue that the effort to achieve multi-ethnicity can be costly and, moreover, that it favours—or appears to favour—the 50

'A Spectre over Central Europe', The Economist, 15 August 2002. Adamantia Pollis, 'Strangers in a Strange Land', Balkan War Report, 25 (1994), 12. 52 A leading proponent of this strategy is Chaim Kaufmann. See his 'Possible and Impossible Solutions to Ethnic Civil Wars', International Security, 20/2 (1996), 136-75. 53 For instance, Art. 12 of the International Covenant on Civil and Political Rights establishes that everyone shall have 'the right to liberty of movement and freedom to choose his residence', which is commonly interpreted to include the right not to be moved. See Patrick McFadden, 'The Right to Stay', Vanderbilt Journal of Transnational Law, 29/1 (1996), 36. Involuntary resettlement is not strictly prohibited by international law, however; it may be conducted for purposes of economic development, although this view is not uncontested. 51

84 Refugees and Internally Displaced Persons local parties who stand to gain most from such an arrangement (for instance, the Muslims in BiH or the Serbs in Croatia and Kosovo), thus alienating the other ethnic communities. For this reason Susan Woodward has argued instead for a strategy of 'staged reintegration', by which she means that areas should be encouraged to evolve over time from 'nationally controlled parastates1 to 'regions of democracy with open borders'.54 Whether 'cross-ethnic alliances' and 'non-ethnically based cooperation' would arise naturally from such conditions is an open question; nevertheless, how realistic it is to expect to be able to restore multi-ethnicity is a valid question to pose. There has been partial recognition of this difficulty in the case of Kosovo. There, prior to the 1999 war, integration was much less widespread among the ethnic Serb and Albanian communities (in addition to others) than had been the case in Eastern Slavonia and BiH. The NATO campaign and Albanian revenge attacks that followed only exacerbated polarization. While international authorities emphasized their commitment to a multi-ethnic Kosovo initially, they came to the conclusion gradually that such a goal was not achievable, in the short- to medium term at least, and began instead to speak about 'peaceful coexistence' between the largely separate communities. 'The time of illusions is over', KFOR spokesperson Lieutenant Colonel Henning Philipps declared on 21 March 2000. 'Our aim has been scaled down to peaceful coexistence and this we think we can achieve. People will live alongside their neighbors and not harm them.'55 Although Special Representative of the Secretary-General (SRSG) Michael Steiner would later speak about a multi-ethnic Kosovo, his was a more modest goal: 'to encourage the smaller communities to stay in Kosovo'.56 If a multi-ethnic Sarajevo seemed necessary for peace in BiH, the same did not seem to be true for Pristina in relation to Kosovo. The difficulty of achieving re-integration raises an issue of a related nature: should international authorities tolerate or even promote returns to locations other than places or homes of origin? In the case 54

Susan L. Woodward, 'America's Bosnia Policy: The Work Ahead', Policy Brief No. 2, The Brookings Institution, July 1996, available at www.brook.edu/ comm/policybriefs/pb02.htm. 55 Cited in 'No More Hopes Pinned on Multi-Ethnic Society in Kosovo', UN Wire, 21 March 2000, available at www.unwire.org/UNWire/20000321/ 7841_story.asp. 56 'Address to the Security Council by Michael Steiner', UNMIK Press Release No. UNMIK/PR719, 24 April 2002, available at www.unmikonline.org/press/ 2002/pressr/pr719.htm.

Refugees and Internally Displaced Persons 85 of Kosovo, financial support has been available (from Belgrade) to re-settle displaced Serbs in northern Kosovo, and many displaced Serbs apparently would like to avail themselves of that option. UNMIK, however, is clearly opposed to the idea. Although UNMIK has acknowledged that its role, and that of any other government authority, 'is neither to mandate return locations nor to dictate to IDPs and refugees how and when they may return', it maintains that any 'approach that consists of aiding the returns of IDPs to locations other than their places of origin goes against UNMIK's policies and responsibilities. It is detrimental to the returns process.'57 The reasons would appear to be as much, if not more, political than humanitarian, as there is palpable concern among UNMIK officials about internationally assisted demographic shifts that—with Kosovo Serbs concentrated in the north—might facilitate a later partition of Kosovo. 'Returns are not a politically driven process', UNMIK maintains, and yet the political dimension of this and other aspects of international administration are hard to deny. 57

UNMIK Concept Paper, cited in Council of Europe, Office of the Commissioner for Human Rights, 'Kosovo: The Human Rights Situation and the Fate of Persons Displaced from their Homes', Doc CommDH(2002)ll, 16 October 2002, fn. 112 and para. 167.

4

Civil Administration

Perhaps the most distinctive feature of an international territorial administration is the establishment of interim structures with broad responsibility for the management of public assets and the provision of public services—some of the core functions of a modern government. While only in Kosovo and East Timor was it deemed necessary to create and maintain such structures more or less from scratch, all international administrations exercise at least extensive oversight of indigenous administrative bodies—although sometimes, as in Eastern Slavonia, oversight is more nominal than real. International civil administration is not entirely without precedent. As we have seen, the League of Nations administered the German Saarland for fifteen years (1920-35) and the United Nations administered Dutch West Guinea (West Irian) in 1962-63. However, only rarely in the past have collective organizations, in contrast to colonial powers or military occupation forces, assumed such wide-ranging responsibilities.1 Civil administration is closely related to two other functions of the international administration of war-torn territories: local capacity-building and political institution-building. As a provisional arrangement, an interim international administration—whether supervisory or executive in nature—has as its ultimate objective the establishment of effective public administrative bodies and practices and the training of local individuals capable of sustaining them following the withdrawal of the international authorities. 'We should ... seek to be the victims of a constitutional coup as soon as possible', Sergio Vieira de Mello suggested rather provocatively while still serving as 1

For other earlier experiments in international civil administration, see Sally Morphet, 'Organizing Civil Administration in Peace-Maintenance', in Jarat Chopra (ed.), The Politics of Peace-Maintenance (Boulder, CO: Lynne Rienner, 1998),ch.3.

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2

transitional administrator (TA) of East Timor. Yet despite recognition of the importance of building local capacity, international authorities often rely principally, if not entirely, on international agencies and personnel for the execution of their mandate, especially in the early days of an operation when emergency conditions prevail and local actors are either inexperienced or not known to be both capable and trustworthy. As a result, international authorities may be insufficiently receptive to local input and tend to favour their own agencies and service-providers to the detriment of the development of local capacity.3 The dilemma that international authorities confront is a very real one. Sensitive to the donors' ticking clocks and to the sting of public opinion, international organizations are under great pressure to achieve demonstrable results very quickly and thus will often prefer to take matters into their own hands rather than to lose time in consultation, negotiation, and 'trial by error'. In the absence of local, qualified individuals to perform civil administrative functions, moreover, there may be little alternative to international self-reliance. Or, where local administrative bodies do exist, there may not always be sufficient checks and balances to justify simple budgetary support of them by international authorities. Such concerns, however, can be and sometimes are exaggerated. In many cases it is possible to devolve responsibility to the local population, insist on transparency, and, as a safeguard, maintain control over the public purse, as was done in the case of the UN Transitional Administration in East Timor's (UNTAET's) Division of Health Services: the only administrative division to be headed by an East Timorese nearly one year after the start of the UN operation.4 This chapter examines the structures and practices that have been adopted for the purpose of performing the civil administrative functions of international territorial administrations. It deals principally with modes of civil administration rather than with specific policies (except for illustrative purposes), as the latter are too numerous to analyse in any detail. The chapter explores the relationship between 2 Sergio Vieira de Mello, 'UNTAET: Lessons to Learn for Future United Nations Peace Operations', text of speech delivered before the Oxford University European Affairs Society, Oxford, 26 October 2001. Similarly, Paddy Ashdown has favoured what he calls a 'white dot mentality': planning for one's own extinction as an international administration. 3 Shepard Forman, Stewart Patrick, and Dirk Salomons, 'Recovering from Conflict: Strategy for an International Response' (New York: Center on International Cooperation, 2000), 17-18. 4 Author interviews with UNTAET officials, Dili.

8 8 Civil A dministration civil administration and local capacity-building but reserves for the following chapter a discussion of political institution-building, thus distinguishing matters of administration from matters of politics— a somewhat artificial distinction, admittedly, since many aspects of civil administration have significant political impact which, in the absence of well developed political institutions, preclude the possibility for meaningful debate involving the relevant stakeholders. A better balance, it is argued here, needs to be struck between the requirements for effective and efficient administration in the short term and the strengthening of local capacity in the longer term if international administrations are to reduce the risk of establishing weak states or territories as a part of their legacy. Indeed, because capacity-building is a developmental process that cannot be achieved overnight, international authorities need to make an early, serious commitment to building local capacity— through greater local participation in planning, co-administration arrangements, and extensive training programmes.

Structures and Practices Although international administrations can be differentiated on the basis of the degree of executive authority that they possess (see Chapter 1), control does not always entail the actual assumption of responsibility for service provision. The UN Transitional Administration for Eastern Slavonia (UNTAES), for instance, possessed full executive authority but it did not administer Eastern Slavonia directly. With the exception of the police, which UNTAES reconstituted and placed under the authority of the TA, UN officials relied largely on existing governmental bodies and personnel of the Republika Srpska Krajina for the provision of basic services—from water, sanitation, energy, and public transport to communications, waste disposal, and health and educational services. UNTAES was unusual among international administrations, however, insofar as its primary purpose was to facilitate the extension of Croatian sovereign authority over the territory. The mission's emphasis, therefore, was on the reintegration of public services rather than on the running of those services, for which purpose, in any event, it would have lacked both the expertise and the financial wherewithal.5 Moreover, UN officials felt that 5

Derek Boothby, 'The Political Challenges of Administering Eastern Slavonia', Global Governance, 10/1 (2004), 41.

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direct administration would have demoralized the Serbs and discouraged them from cooperating with UNTAES.6 But even as indirect administrator, UNTAES had to address a wide range of practical problems in relation to public utilities, property records, education, health care, refugees, and agriculture, among numerous other issues, long before the transition was achieved. For instance, how were farmers, who had relied on loans from Serbia, now going to purchase their fertilizer? Which curriculum was to be taught in the schools? How were Krajina Serbs to be issued Croatian documents, without which they would be non-persons? These and other administrative matters required the TA to make executive decisions, many of them entailing significant political consequences. For the purpose of advising him broadly on a range of matters, political and administrative, the TA established a Transitional Council made up of one representative each of the government of Croatia, the local Serb population, the local Croat population, and other local minorities. The Council, however, was strictly advisory in nature. The TA was not obliged to obtain the consent of either the Council or the parties for his decisions, which it was feared would have given the parties a veto over the TA's actions and would thus likely have stymied him.7 To administer specific sectoral areas and to manage the process of transition within those areas, the TA also established thirteen Joint Implementation Committees (JICs), with numerous sub-committees, each made up of Serb and Croat representatives and chaired by the TA or his representative.8 The JICs were meant additionally to build up trust between the parties that had been severely weakened by the war. The effectiveness of the JICs varied depending on the issue area—and for reasons not unlike those that pertain to the success of peace operations generally. Some JICs (such as the JIC on Returns and Displaced Persons) lacked clarity about their strategic purposes and were thus consumed with the details of specific cases. Others (such as the JIC on Education and Culture) suffered from a lack of political guidance or authority, which meant that proposals frequently had to be referred upwards to either Zagreb or the Serbs' Regional Executive Council. Sometimes personality mattered: the presence on the Health JIC of the former director of Vukovar Hospital, who was regarded by Croats 6

Christine Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes: Legacy of the United Nations in Eastern Slavonia and Transitional Missions (Clementsport, Nova Scotia: Canadian Peacekeeping Press Publications, 7 2002), 85. Author interview with former UNTAES official. 8 Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), UN Doc S/l 995/1028,13 December 1995, paras 14-16.

90 Civil Administration as a hero, antagonized the Serb delegation and made negotiations very difficult.9 But overall the JIG process was a valuable one for dealing with civil administration issues and reintegration of the region into Croatia. However, again like many peace operations, its success depended ultimately on the willingness of the parties to cooperate, and such cooperation was not always forthcoming. For instance, the failure of the Croatian government to provide funding for the local Serb administration and public services, following the closure of the Djeletovci oil field in April 1996, meant that the local administration was unable to pay the salaries of some 3,600 civil servants—a move that undermined public service provision and heightened apprehension among the Serbs. ° The Serbs, for their part—many of them beholden to hardliners among their leadership—sometimes blocked practical progress in the JICs pending resolution of larger questions, such as the future status of Serb political institutions.11 Many Serbs also did not want to facilitate the withdrawal of the United Nations from the region in the vain hope that the United Nations would remain longer.12 In Bosnia and Herzegovina (BiH), international authorities have also relied chiefly on Bosnian governmental bodies for the performance of administrative functions, and difficulties have arisen, too, because the local authorities have frequently been more concerned with the pursuit of partisan gains (personal and political) than with general welfare. For instance, so determined were some militant nationalists to forestall integration of the two entities that in the early period of the international administration they even sought to constrain freedom of movement across the Inter-Entity Boundary Line (IEBL) (more aptly 9

Details of the functioning of the JICs are drawn from Robert J. A. R. Gravelle, 'The United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES): A Successful United Nations Mission', unpublished manuscript. ™ Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l996/622, 5 August 1996, para. 4. The oil field, with a total of 74 wells producing approximately 10,000 tonnes of crude oil a month, was the single most important source of revenue for the region. Most of the oil was being sent to Yugoslavia to be refined and Croatia demanded an end to this outflow as a condition for the opening of the Adriatic pipeline to Yugoslavia. See Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 996/472,26 June 1996, paras 27-9. 11 Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/1996/821,10 October 1996, paras 4,17. 12 Author interview with former UNTAES official.

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called by some the Inter-Ethnic Boundary Line as a result), which it was easy enough to do by issuing distinctive number plates for automobiles in each entity.13 Were it not for the decision of the High Representative (HR) in 1998 to require adoption of a common number plate for all of BiH—one that did not betray the vehicle owner's ethnicity or place of residence—individuals today might still be too fearful to move beyond the relative safety of their entities.14 While the performance of indigenous administrative bodies has clearly improved over time, many of them are still influenced unduly by ethnic politics. As a consequence of these illiberal tendencies, there have been periodic calls—within the region and internationally—for purging the administrative (and political) structures of BiH of its militant nationalist elements, as was done in Germany after the Second World War.15 The Allies believed then that the best way to assure a peaceful Germany was to create 'a free democratic society in which political and economic power rests upon a broad popular base, undominated by fascist or militaristic elements'. They set out, therefore, to 'denazify' the territory under their control.16 But while the Bosnian constitution bars from public office (appointive or elective) any individual indicted by the International Criminal Tribunal for the former Yugoslavia, and while the HR may remove from office any individual who violates his or her legal commitments under the Dayton Accord or obstructs its implementation,17 nationalism itself is not a crime and therefore has not been challenged in the same way as Nazism was. For that matter, the problem is not nationalism per se, which can in fact be a constructive force, but a particular breed of nationalism—chauvinistic and 13

The IEBL marked the boundary between the Federation and Republika Srpska (RS) with the exception of the disputed Brcko area, the allocation of which was to be decided by binding arbitration. See The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 2. *4 10th Report of the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 14 July 1998, para. 81. *5 See, for instance, the interview with Sejfudin Tokic, vice-president of the Steering Committee of the Social Democratic Party of BosniaHerzegovina: 'Apologies and Reconciliation in Bosnia? Part P, RFE/RL South Slavic Report, 2/34 (21 September 2000), available at www.rferl.org/reports/ southslavic/2000/09/34-210900.asp. 16 Report of the Denazification Policy Board, 15 January 1946, cited in John Gimbel, The American Occupation of Germany: Politics and the Military, 1945-1949 (Stanford, CA: Stanford University Press, 1968), 103. 17 The General Framework Agreement for Peace in Bosnia and Herzegovina Annex 4, Art. IX(1); Peace Implementation Conference, 'Bosnia and Herzegovina 1998: Self-sustaining Structures', Bonn, 10 December 1997.

92 Civil Administration exclusivist—that contributes to keeping the state fragmented and thus weak.18 The few administrative bodies in BiH that have performed competently from the start are deserving of closer consideration. These include the Independent Media Commission (later to become the Communications Regulatory Agency), the Central Bank, and the Human Rights Ombudsman. They are all distinguished by the fact that they are neither international nor local bodies but, rather, hybrid institutions run by internationals (at least initially) with the participation of members of the local community selected by the transitional authorities for their ability to perform their duties impartially.19 These institutions have thus become de-linked from nationalist politics. (In contrast to the Independent Media Commission, the Telecommunications Regulatory Authority was headed by three governors, one from each ethnic group, and it took one year just to get them to agree to sit at the same table.)20 Another strategy that has been successful has been that employed by the EU-funded Customs and Fiscal Assistance Office (CAFAO) to establish effective customs enforcement capability. CAFAO created internal structures to mirror those of the entity organizations responsible for the enforcement of customs revenue. Although CAFAO units were not physically co-located alongside their entity counterparts, in the same way as International Police Task Force (IPTF) officers were, these parallel structures have made it easier to monitor entity activity and to transfer skills.21 Smuggling and tax evasion remain serious problems but the amount of customs revenue collected tripled in the three years since the process was launched in 1999.22 Some have suggested that the Office of the High Representative (OHR) would be more effective if it, too, had 18

On varieties of nationalism, see Richard Caplan and John Feffer (eds.), Europe's New Nationalism: States and Minorities in Conflict (New York: Oxford University Press, 1996). 19 For a discussion of the effectiveness of some of these institutions, see European Stability Initiative, 'Reshaping International Priorities in Bosnia and Herzegovina. Part II: International Power in Bosnia', 30 March 2000. 20 Author interview with IMC official, Sarajevo. 21 Customs and Fiscal Assistance Office to Bosnia and Herzegovina (CAFAO), 'Briefing Note: Combating Organised Crime in the Balkans: Customs Enforcement in Bosnia and Herzegovina' (mimeo), Sarajevo, 18 October 1999. 22 House of Lords, European Union Committee, Responding to the Balkan Challenge: The Role ofEUAid, Session 2001-2002, Twentieth Report, HL 107 (London: HMSO, 2002), para. 224.

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a 'shadow government' structure rather than departments organized along functional lines. Kosovo and East Timor, in contrast to Eastern Slavonia and BiH, have seen the wholesale assumption of responsibility for civil administration by international authorities, at least in the initial phases of the operations. The UN Interim Administration Mission in Kosovo (UNMIK) and UNTAET were established following military conflicts that produced acute administrative vacuums in their wake.23 But while in both cases the precipitous withdrawal of the ruling authorities left no formal administration standing, in the case of Kosovo informal political and administrative structures began to emerge as the war ended or immediately after the cessation of hostilities, more often than not under the control of the Kosovo Liberation Army (KLA)24 or, in the northern municipalities (such as Mitrovica and Zvecan), under the control of local Serbs backed by Belgrade. The international administrative arrangements for Kosovo, therefore, were born of both practical and perceived political necessity. For although UNMIK had as one of its chief responsibilities to promote the establishment of autonomy and self-government in Kosovo,25 it neither wished to face a challenge to its authority from local officials, as the international community has in BiH, nor did it want to facilitate the consolidation of power by any one political faction in particular. UNMIK and UNTAET adopted similar structures and practices for the administration of their respective territories. Indeed, a number of senior international officials serving in East Timor had served previously in Kosovo and imported many elements from the other mission. Both operations took a phased approach, starting with direct administration, then moving to co-administration, and finally achieving a transfer of responsibility—partial, in the case of Kosovo, total in the case of East Timor, which on 20 May 2002 gained its independence. But while the logic was straightforward enough, progress has been anything but linear. 23 Of East Timor, Joel C. Beauvais observes: "The population that emerged from the conflagration of August 1999 ... included only about sixty lawyers, thirty-five doctors, and a handful of engineers. Most of the top echelons of the occupying Indonesian administration had fled, leaving the territory virtually bereft of an administrative class.' See his 'Benevolent Despotism: A Critique of U.N. State-Building in East Timor', New York University Journal of International Law and Politics, 33/4 (2001), 1137. 24 'The KLA's Future', transcript of PBS NewsHour television programme, 23 June 1999, available atwww.pbs.org/newshour/bb/europe/jan-june99/ 25 kla_6-23.html. SC Res 1244 (1999), ll(a).

94 Civil Administration As with UNTAES, the TAs established consultative bodies in both territories from the outset: the Kosovo Transitional Council (KTC), made up initially of twelve representatives of the principal ethnic and political groups in Kosovo, and the National Consultative Council (NCC) of East Timor, composed initially of fifteen members, including four UNTAET representatives—all members appointed in each case by the TA, who served as the chair.26 Consultative councils were also established at the municipal and district-levels in Kosovo and East Timor respectively. (The councils ceased to exist with the establishment of provisional self-government in Kosovo in 2001 and an independent East Timor in 2002.) No such consultative body, it is worth noting, was established for the international administration of BiH. Given that there existed a sovereign Bosnian government from the start of the operation and that the HR did not possess the supreme authority of the TAs, a formal consultative body would not have seemed appropriate. The absence of such a body notwithstanding, the HRs have often consulted extensively with local officials on an ad hoc basis before making decisions. The KTC and NCC were not only meant to ensure local participation in international decision-making but, by virtue of their representative character, the councils also helped to confer legitimacy on the two territorial administrations, although members have not always been willing to participate because they did not support particular policies of the administration. For instance, Serb members of the KTC withdrew temporarily from the Council in September 1999 in reaction to the decision by Bernard Kouchner, the first TA, to create a Kosovo Protection Corps (KPC)—a civil emergency corps made up largely of demobilized KLA members, which many Serbs (and Albanians) 26

The KTC comprised two Albanian representatives from the Kosovo Liberation Army (UCK), two from the Democratic League of Kosovo (LDK), two from the United Democratic Movement (LBD), and two independents; one Kosovo Serb representative from the Serbian Orthodox Church and one from the Serbian Resistance Movement (SPO); one Bosniac from the Party of Democratic Action (SDA); and one Turk from Turkish People's Party (TPP). See 'UNMIK Convenes First Meeting of Kosovo Transitional Council', UNMIK Press Release UNMIK/PR/12, 16 July 1999. The NCC comprised seven representatives of the National Council of Timorese Resistance (CNRT); one from the Catholic Church; three from pro-autonomy groups: the Forces of the East Timorese People (BRIT), the Timorese Nationalist Party (PNT), and the Forum for Unity, Democracy and Justice (FPDK); and four UNTAET representatives. See UNTAET Regulation No. 1999/2, On the Establishment of a National Consultative Council, 2 December 1999.

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regard as a Kosovo Albanian army-in-waiting. Likewise, the National Forum for Unity, Democracy and Justice (FPDK), one of the three East Timorese pro-Indonesian groups with representation on the NCC, never took up its seat at all. With respect to specific aspects of civil administration, UNMIK and UNTAET also established joint commissions initially, similar to the JICs in Eastern Slavonia, to provide the missions with local input. Known as Joint Civilian Commissions in Kosovo and Joint Sectoral Committees in East Timor, they were ad hoc emergency bodies created to deal with, among other things, matters of health, education and culture, the judiciary, agriculture, infrastructure, municipalities and local administration, post and telecommunications, energy, the civil service, and macroeconomics and finance.27 Local input, however, was often minimal and what input there was came mainly from the capitals, Pristina and Dili.

The Politics of Consultation How widely to consult is a crucial question for a territorial administration. For just as consultation confers legitimacy on international administration, so can it validate the importance of the interlocutors themselves, some of whom may have agendas inimical to the requirements for peace in the territory (as perceived by the international authorities at least) or may simply have different priorities. Conversely, there may be one party that is so manifestly representative of the local population as a whole that consultation in equal measure with all other parties would seem to be a subversion of the popular will. In the event, international authorities have generally been ecumenical in their approach, discriminating with respect to particular individuals but not always in relation to the larger parties or movements of which they are a part. The discrimination has been both negative and positive. In the case of BiH, for instance, Carl Bildt, the first HR, pursued a policy that sought to marginalize the influence of the Bosnian Serb leader Radovan Karadzic and other hardliners. Bildt was facilitated in this regard by the Hague tribunal's indictment of Karadzic in 1995 for genocide, 27

See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/1999/779,12 July 1999, para. 19; and Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/53, 26 January 2000, para. 4.

96 Civil Administration crimes against humanity, and violations of the laws of war.28 Yet Bildt did not seek necessarily to sideline Karadzic's SDS party, which enjoyed considerable popular support. Rather, he set out to strengthen elements within the SDS that were willing to cooperate with the international authorities.29 By contrast, Sergio Vieira de Mello established a special consultative relationship with Xanana Gusmao and the National Council of Timorese Resistance (CNRT), thus privileging both the man and the organization of which he was the head. Although this might have seemed reasonable given the enormous popularity of Gusmao and the CNRT, there were many within the United Nations who cautioned that UNTAET had to be impartial and that to give the CNRT a formal role as interlocutor would prejudice the outcome of the political process that UNTAET was tasked with managing.30 Others, notably Major-General Peter Cosgrove, the Australian commander of the International Force in East Timor (INTERFET), dealt with the CNRT as he felt necessary given that it was the only organized political entity on the ground.31 One sees evidence here of an institutional allergy to political engagement that is perhaps more appropriate for a UN peacekeeping operation than for a UN territorial administration. For while the CNRT may not have had formal recognition as the sole, legitimate representative of the East Timorese people, it clearly enjoyed the overwhelming support of the population, especially with so few prointegrationists remaining in East Timor in the aftermath of the August 1999 'popular consultation*. Under the circumstances, it seems, evenhandedness would have been inappropriate. And yet, as many within the United Nations argued, the August ballot was a referendum on the future status of East Timor and not a contest to decide who should represent the people of East Timor.32 The selection of members to the Transitional Administration Cabinet provides some evidence to support the concerns behind this more cautious view. The four East Timorese members whom UNTAET selected for inclusion in the Cabinet in August 2000 were, in effect, chosen by Gusmao and 28 International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-5-I, Indictment, 24 July 1995, available at www.un.org/icty/ indictment/english/kar-ii950724e.htm. 29 For a discussion of Bildt's 'Karadzic strategy', see Carl Bildt, Peace Journey: The Struggle for Peace in Bosnia (London: Weidenfeld & Nicolson, 1998), ch. 12. 30 International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 4 (East Timor), para. 26. 31 Jarat Chopra, 'Building State Failure in East Timor', Development 32 and Change, 33/5 (2002), 997. Ibid., 996.

Civil Administration 97 were said by some to reflect his own political allegiances rather than to represent the broader interests of the East Timorese.33 Of course, this begs the question of how one determines these 'broader interests'. The issue of consultation thus poses certain unique challenges for an international administration, and unless one is prepared to hold elections for local representatives early in an administration, the choice of interlocutors will not always be an obvious one. However, elections are often not possible and may not even be desirable in the context of emergency or immediate post-emergency conditions. Despite the importance of the issue, TAs are given very little if any guidance in their choice of interlocutors. (At a minimum, the basis for selection must be innocence of war crimes and demonstrated support for the international mandate.)34 And yet, consultation matters not only for purposes of civil administration but also in relation to planning and to political institution-building, as we will see in Chapter 5. Although UNMIK and UNTAET chose to administer the territories directly, in reality their writ did not extend very much beyond the capital cities of Pristina and Dili, at least initially. As the World Bank observed: 'UNMIK municipal administrators arriving in the summer of 1999 to displace the self-proclaimed mayors had no resources (offices, staff, or money) and few clear instructions from UNMIK headquarters in Pristina/Prishtine; and in fact needed to rely on those mayors and other Kosovars in the area to get established.'35 In East Timor the situation was even worse. There the decision had been taken to establish District Administrations in each of the thirteen districts in an effort to achieve a decentralized form of administration that was more responsive to local needs. In a striking departure from previous UN experience, District Administrators were to have 'full executive powers', with district-level personnel reporting directly to the District Administrator rather than to their department superiors in the central administration.36 However, the model was 33

Simon Chesterman, 'East Timor in Transition: From Conflict Prevention to State Building', International Peace Academy Report, May 2001, 21-2, available at www.ipacademy.org/Publications/Repom/Research/PublRepoEastTimor_ body .htm. 34 Mark Baskin, 'Between Exit and Engagement: On the Division of Authority Between International and Domestic Institutions in Transitional Administrations', Global Governance, 10/1 (2004), 130-2. 35 Gloria La Cava etal., 'Conflict and Change in Kosovo: Impact on Institutions and Society', draft, (Washington, DC: World Bank, 2000), 19. 36 Memorandum from Jarat Chopra, UNTAET head of District Administration, to Sergio Vieira de Mello, UNTAET Transitional Administrator,

98 Civil Administration never fully implemented. Despite a stated commitment to decentralization, the United Nations continued to operate a centre-oriented mission. As of January 2000, 192 UNTAET international administrative personnel had been deployed to Dili but only seventeen were serving in the districts.37 Moreover, District Administrators complained that decisions affecting them were being taken in Dili without adequate consultation with them. In March 2000, as a result, the head of the Office of District Administration, Jarat Chopra, resigned and, one month later, all thirteen District Administrators signed a memorandum of protest in reaction to these centralizing tendencies.38 The centre-district tension is a common problem among territorial administrations, especially in the early phases of an operation. (After more than six years of international administration in BiH, however, regional offices were still complaining that the centre was out of touch with the region, which may be what led Paddy Ashdown, at the start of his tenure as HR, to signal his determination to spend more time than his predecessors outside the capital.) From the standpoint of the local population and regionally deployed international officials, moreover, the centre often seems to be favoured at the expense of the districts in terms of resources, even though much if not most of the population may be rural. In East Timor, for instance, many of the district-level international personnel lacked relevant experience, prompting Jose Ramos-Horta, the soon-to-be appointed foreign minister, to complain publicly in May 2000: 'I know many of them have no experience, no expertise, no academic qualifications at all. I asked one of them— an American lady—what her qualifications were, and she said only that she had worked in Yosemite National Park.'39 The speech was symptomatic of growing Timorese frustration with the inadequate provision of public services, the slow pace of United Nations devolution of authority to the local population, and a lack of confidence in the abilities of some international personnel. The speech was followed by a request by Ramos-Horta to Kofi Annan that the United Nations remove all of its district administrators by August and replace them with local leaders. 17 November 1999, 2 (copy on file with author). For a fuller discussion of district administration, see Chopra, 'Building State Failure in East Timor', 985-9. 37 Beauvais, 'Benevolent Despotism', 1142. 38 Ibid.; author interview with Chopra. 39 Ramos Horta cited in Mark Riley, 'Time for UN to Go: Timor Leaders', Sydney Morning Herald, 24 May 2000.

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Capacity-building While consultative mechanisms are a useful sounding board for international authorities, effective territorial administration requires the development or enhancement of local administrative capacity and, in cases of direct governance, the eventual transfer of administrative responsibility to local actors. Kosovo and East Timor, it was noted above, envisaged a phased approach leading from UN administration to co-administration and finally to self-administration, with the TA retaining certain 'reserved* powers in Kosovo, a nonsovereign entity.40 (A phased political process paralleled the administrative one and is discussed in Chapter 5.) However, no specific timeline was established for these processes and, in the case of East Timor at least, the decision to 'Timorize' the civil administration seems to have owed as much if not more to the local pressures for change, noted earlier, than to demonstrable evidence of indigenous capacity. In Kosovo, after an initial six-month period in which UN authorities continued to compete with local parallel structures, UNMIK established the Joint Interim Administrative Structure (JIAS). A key component of the JIAS were twenty administrative units responsible for the management and delivery of public services organized on the basis of a 'dual desk' model.41 Each administrative department, along with four independent agencies, was to be co-directed by a Kosovar and a senior UNMIK international staff member, all selected by the TA, with the Kosovars being drawn from the principal ethnic groups and political parties. In addition, an eight-member advisory group—the Interim Administrative Council (LAC)—made up of four UNMIK officials and four Kosovars (three Albanian political leaders and a representative of the Kosovo Serb community) was established to propose policy guidelines for the twenty administrative units, among other functions. Similar arrangements were devised for East Timor, where the United Nations in August 2000 converted its Governance and Public Administration (GPA) pillar into the East Timor Transitional Administration (ETTA) 40

The phased strategy is outlined in Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/l 999/779, 12 July 1999 and Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/53,26 January 2000. 41 UNMIK Regulation No. 2000/1, On the Kosovo Joint Interim Administrative Structure, 14 January 2000.

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under the direction of an eight-member (four internationals and four locals) Transitional Administration Cabinet.42 (The Cabinet was expanded in October 2000 to include a new East Timorese portfolio: foreign affairs.) East Timorese were selected to fill positions in both the central administration in Dili and in the thirteen districts, with the expectation that they would gradually replace the internationals at the helm. In both Kosovo and East Timor, however, ultimate administrative authority resided with the TA (see Figure 4.1). The idea behind co-administration is a sound one. In principle, it gives local individuals an opportunity to gain valuable experience under the tutelage of internationals. It also gives local individuals and the parties they represent a stake in policy-making, thus distributing responsibility for the outcomes. Internationals, meanwhile, develop a better understanding of local problems and issues while at the same time ensuring that they are able to exercise continued oversight. In practice, however, co-administration has not been without its problems. In the case of Kosovo, fierce ethnic and political competition meant that the various parties competed for influence over the number and importance of the departments that they would head. Administrative competence sometimes suffered as a consequence, for most if not all of the department co-heads were selected by the local leadership largely on the basis of loyalty and other partisan considerations. 43 Moreover, in both Kosovo and East Timor the internationals were not always in a position to mentor their counterparts. Either the internationals lacked the requisite expertise themselves,44 or they were dealing with pressing immediate needs for which they were often under-resourced and therefore did not have the time to transfer skills. 'An inadequate number of UN personnel with inadequate means work long hours at fire-fighting and improvising', is how Vieira de Mello described conditions.45 To function as a means of building capacity, co-administration requires a commitment to recruit and train local personnel and to delegate authority to them. Yet while the United Nations hired 42

UNTAET Regulation No. 2000/23, On the Establishment of the Cabinet of the Transitional Government in East Timor, 14 July 2000. 43 Author interviews with UNMIK officials. 44 Ruth Wedgwood and Harold K. Jacobson, 'Symposium: State Reconstruction after Civil Conflict: Foreword', American Journal of International Law, 95/1 (2001), 2. 45 Sergio Vieira de Mello, 'How Not to Run a Country: Lessons for the UN from Kosovo and East Timor', unpublished manuscript (2000), 4.

Figure 4.1 East Timor Transitional Administration (as of October 2000)

102 Civil Administration large numbers of East Timorese for the ETTA within its first five months, East Timorese occupied less than 10 per cent of all senior positions by December 2000.46 And in some cases, UN personnel balked at the idea of working under East Timorese officials, arguing that as they were employed by the United Nations they were accountable to the United Nations and would not take direction from nonUN officials. (Similar complaints have been voiced in Kosovo.) The problem was serious enough that Vieira de Mello was forced to intervene to 'clarify* to international staff that although East Timorese would take charge increasingly, the United Nations retained overall responsibility, in accordance with Security Council Resolution 1272 (1999), and that Vieira de Mello—the head of mission—thus exercised ultimate authority.47 The incident is indicative of a more fundamental problem for UN-run transitional regimes: the confusion—and tension—that may exist in such situations between the UN's dual role as both a mission and an embryonic government.48 For instance, UNTAET's GPA pillar was a component of the UN mission that had responsibility for the delivery of essential services and for the establishment of a separate indigenous entity, the ETTA, which was to assume responsibility eventually for the delivery of public services. Yet while the GPA enjoyed the resources available to it as a component of a UN mission, the ETTA was resource-starved. International members of the Transitional Administration Cabinet, which oversaw the work of the ETTA, thus had various infrastructural support—staff, computers, and communications facilities—which, however insufficient, far exceeded the resources available to the East Timorese members of the same Cabinet, who were also paid in accordance with local rather than international salary levels. Moreover, UN procurement rules meant that the mission could not finance the activities of the ETTA, for which purpose a separate donor-financed trust fund had to be established. As Vieira de Mello observed: The UN mission in East Timor had over 500 vehicles for its staff, but it was only by breaking rules that a meager dozen vehicles could be released for Timorese political leaders. The UN spent millions of dollars on offices and accommodation for staff, but the rules had to be bent again to allow us to do up a limited number of public buildings which were not for use by staff. 46

Beauvais, 'Benevolent Despotism', 1144. Author interview with UNTAET official, Dili. 48 This issue is discussed in International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor). 47

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The rules also do not allow one to give lifts. In a country where transport is lacking, such rules (luckily often broken!) make the UN appear arrogant and egotistical in the eyes of those whom we are meant to help.49 The price paid for this dual role was resentment and compromised effectiveness on the part of East Timorese administrators, who were already executing their responsibilities with serious handicaps. Despite these problems, co-administration can work well, as demonstrated by the administration of health care services in East Timor.50 One critical difference in this particular case was the availability of qualified nationals and their readiness to organize themselves. Even before UNTAET had established its civil administration, East Timorese health professionals had formed a working group that drafted recommendations for a national health system, which together with World Bank recommendations would form the basis for UN policy-making later. It helped, too, that senior UN health officials were highly experienced and appreciated the importance of working in partnership with their local counterparts. The Interim Health Authority, which they established in February 2000, was unusual among UNTAET bodies for the large number of East Timorese on its staff: sixteen in Dili and one in each district, as against a total of six internationals. As noted earlier, UNTAET's Division of Health Services was the only administrative division within ETTA to be headed by an East Timorese nearly one year after the start of the UN operation. Indeed, as the experience of administering health care suggests, it is not only partnership that matters for capacity-building but also the time frame for building that capacity. The focus on short-term needs and the outsourcing of civil administrative services, although arguably necessary as long as emergency conditions prevail, tend to crowd out initiatives for indigenous development, including capacitybuilding through co-administration. Yet the longer capacity-building is delayed, the less well-equipped a people is to administer its own affairs. As the World Bank warned in a November 2000 memorandum on its transitional support strategy for East Timor: '[T]he reconstruction program offers an opportunity for capacity-building and strengthening of accountability in the public sector. Failure to do 49

50

Vieira de Mello, 'How Not to Run a Country', 8.

Details about the health sector are drawn from International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), paras 183-9, and author interviews.

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so may result in long-term imbalance with a weak state as a counterpart to strong international NGOs and agencies.'51 And when East Timor gained independence, it was a very weak state indeed. With a longer time frame in mind, many international administrations have sought to establish and/or train local civil servants in an effort to develop professional, accountable, and inclusive public administrations. (UNTAES concerned itself only with the police in this regard.) Towards that end, the Organization for Security and Co-operation in Europe (OSCE) established the Institute for Civil Administration (ICA) in February 2000 to provide training for members of Kosovo's emerging civil service. Some 4,000 municipal and central government civil servants would be trained by the ICA before its replacement by an indigenous Kosovo Institute for Public Administration as part of UNMIK's strategy to establish institutions of self-administration. Additionally, in December 2001 TA Hans Haekkerup promulgated principles to govern the functioning of the Kosovo civil service as well as a 'code of conduct' for its civil servants.52 How effective these efforts will be in the long run is an open question. While there can be no doubt that Kosovo's civil servants are professionalizing, bureaucracies in Kosovo remain politicized and minority recruitment has been difficult to achieve. By October 2002, a fair proportion of minorities had been employed in only eight out of twenty-four ethnically mixed municipalities, the most serious obstacles being security concerns, inter-ethnic tension in the workplace, and a limited number of qualified minorities willing to accept civil service positions.53 One year later, the Secretary-General reported, minority employment in the civil service at the central and municipal levels remained unsatisfactory.54 In the long term, it is the quality of political leadership that is likely to be the single most important factor regarding the professionalism of the civil service, as evidenced by the experience in BiH. 51

World Bank, 'Memorandum of the President of the International Development Association to the Executive Directors on a Transitional Support Strategy of the World Bank for East Timor', Report No. 21184-TP, 3 November 2000,16. 52 UNMIK Regulation No. 2001/36, On the Kosovo Civil Service, 22 December 2001. 53 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2002/1126, 9 October 2002, para. 10. 54 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2003/996, 15 October 2003, para. 13.

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A state-level civil service already existed in BiH when the international administration was established but one that was highly politicized.55 Under the communist system, appointments were often made on a political basis, and that practice continued during and after the war at every level of public administration—state, entity, canton, and municipality. To compound the problem, there was no law on administrative procedure to regulate the work of civil servants at the state level. As Dominik Zaum observes, after eighteen months of supervision, international authorities concluded that the state-level civil service was almost entirely dysfunctional and lacked the capacity to support the work of the government and implement the provisions of the Dayton Agreement.56 As a result, the Peace Implementation Council (PIC), meeting in Madrid on 15-16 December 1998, identified the creation of a professional, apolitical civil service as a priority objective.57 The HR thus set out to draft, in consultation with the local authorities, a civil service law, which it was hoped the Bosnian government would adopt, that would provide for 'the selection, management, career progression, compensation and social benefits of public employees in such a way to foster professionalism and political independence'.58 In the event, HR Wolfgang Petritsch was forced to impose the law on 23 May 2002, despite the adoption of relevant legislation by the Council of Ministers and by both Houses of the Parliamentary Assembly, because the two Houses could not agree on a consolidated version of the law.59 This episode raises important questions about 'ownership' of the transitional process that are addressed in Chapter 8. From co-administration, international authorities have moved to put into place structures and practices of self-administration (or reintegration in the case of Eastern Slavonia) while maintaining international oversight to varying degrees. In May 2001, UNMIK promulgated the Constitutional Framework for Provisional Self-Government in Kosovo, which envisaged a transfer of political and administrative responsibilities to local authorities following elections for a Kosovowide Assembly in November 2001, leading in turn to the establishment of Provisional Institutions of Self-Government (PISG) in March 55

Dominik Zaum, "The Paradox of Sovereignty: International Involvement in Civil Service Reform in Bosnia and Herzegovina', International Peacekeeping, 56 10/3 (2003), 102-20. Ibid., 105. 57 'Declaration of the Peace Implementation Council', Madrid, 16 December 58 1998. Ibid., Annex, 111(3). 59 Office of the High Representative, 'Decision Imposing the Law on Civil Service in the Institutions of Bosnia and Herzegovina', 23 May 2002.

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2002. (A transfer of responsibilities to authorities at the municipal level has also been under way.) The devolved responsibilities are extensive but they are not unlimited. Certain powers are reserved to the TA either because they are too sensitive (for instance, final authority over law enforcement institutions, the Kosovo Consolidated Budget, and the appointment and removal of judges) or because their exercise could prejudice determination of Kosovo's final status (such as powers of an international nature, including external relations and agreements with states and international organizations).61 As part of this process, the UN's own administrative departments—constituent components of the JIAS—were streamlined and transformed into ten ministries of the provisional self-government.62 In a similar fashion, UNTAET in September 2001 established an all-Timorese Second Transitional Government and, as part of it, the East Timor Public Administration—a further and final provisional structure of self-administration prior to independence.63 To an even greater extent than in Kosovo, the civil administration in East Timor was now controlled by local authorities, albeit still under the overall authority of the TA. How capable a public administration the United Nations had built by this time is another question. UNTAET had recruited some 9,500 East Timorese civil servants—about 90 per cent of the target figure of 10,500—as of October 2001. Yet with seven months to go before independence, the civil administration remained highly dependent on the expertise and advice of international personnel, as the UN Secretary-General acknowledged in his 18 October 2001 report to the Security Council: 'The professional bureaucratic skills and capacity of many civil servants remain limited, particularly in the areas of senior management and in highly technical and professional areas of government administration. Of particular concern are the areas of public finances, the judiciary, senior management and the development of and maintenance of central administrative systems 60

The Constitutional Framework was promulgated as UNMIK Regulation No. 2001/9, On the Executive Branch of the Provisional Institutions of SelfGovernment in Kosovo, 15 May 2001. 61 The transferred and reserved powers are specified in Chapter 5 and Chapter 8 of the Constitutional Framework respectively. 62 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2001/926, 2 October 2001, para. 15. 63 UNTAET Regulation No. 2001/28, On the Establishment of the Council of Ministers, 19 September 2001.

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64

of government/ While it was always anticipated that East Timor's administrative capacity would initially be weak, the failure of the United Nations to take capacity-building seriously enough, some critics have charged, only compounded the problem. As one senior official of the new East Timorese government would later observe: 'Capacitybuilding was never actually done. The United Nations did not want to develop policies or work with the CNRT until [May 2000]. Even then there was no clear policy for capacity-building. This has become a country of consultants with no real development of civil service cadres.'6* Capacity-building must go hand-in-hand with international civil administration. Yet while the importance of capacity-building is widely recognized, in practice it is too often paid only lip service—not for malign reasons but largely out of concern on the part of international authorities to ensure that the delivery of public services and the management of public assets is conducted competently and in conformity with the requirements of the mission, even if in some cases (for instance, electricity production in Kosovo) international personnel have not proved to be particularly capable themselves. As a 2003 King's College London study of four peace operations observed, 'A balance must therefore be struck between the mission's efforts to re-establish a public administration, maintain some control, and monitor quality and progress, on the one hand, and its ultimate responsibility to facilitate local ownership and effect eventual handover on the other.'66 Capacity-building is a developmental process that cannot be achieved in a short period of time. How much and how quickly administrative responsibilities should be devolved to local authorities, however, will depend in part on the time frame of an operation, which, in turn, is related to the amount of international political will and resources at an operation's disposal. Ideally donors and international organizations will take the long view that may be required but where donor and other pressures mean that international authorities must operate within limited time constraints, international authorities may also have to rely on robust follow-up arrangements. Whether 64 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2001/983, 18 October 2001, para. 12. 65 Cited in International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 179. 66 International Policy Institute, A Review of Peace Operations, Synthesis Report, para. 69.

108 Civil Administration the transfer of responsibility is gradual or rapid, it is important to lay the foundations for self-administration very early on. There will always be the temptation to defer the transfer of responsibility. For transitional authorities, the day of reckoning invariably comes too soon.

5 Political Institution-Building

The distinction between matters of civil administration and matters of politics, in the context of international territorial administration, is in many respects an artificial one, as we noted in Chapter 4. In reality, the two spheres represent inextricably related areas of activity. Civil administration inevitably entails policy decisions, many of them political in nature, which require choices to be made that may reflect fundamentally different or even competing goals and values. Indeed, some decisions may be so political—for instance, the adjudication of rival property claims (in East Timor) or the teaching of recent history (in Eastern Slavonia)—that international administrators may choose to defer them to a future domestic authority.1 Moreover, international administrations, as interim arrangements, envisage the eventual transfer of responsibility for all aspects of governance—political as well as administrative—to local authorities. Effective international management thus perforce entails the development of local political institutions where such institutions are either lacking or deemed by international authorities for various reasons to be inadequate. As with civil administration, there may be a trade-off between the presumed efficiency of international governance, on the one hand, and local capacity-building—now in respect of political matters—on the other. Where international authorities exercise complete control, formally or informally, slowness either to transfer or to yield responsibility for governance may leave the local population insufficiently prepared for the challenges of self-rule when an administration folds 1

In East Timor, title to the same property exists from pre-colonial, Portuguese, and Indonesian times, a problem compounded by the fact that many property records were destroyed amidst militia violence in 1999. In Croatia, recent history (1989-97) is mired in such controversy for Serbs and Croats alike that the United Nations negotiated a five-year moratorium with the government on the teaching of the period in the Danube region.

110 Political Institution-Building up tent. Moreover, the failure to devolve responsibility can generate frustration and resentment on the part of the local population, threatening to jeopardize the cooperation between the local population and international authorities that is vital to the effective working of an international administration. Indeed, given the salience today of self-determination norms, the development of domestic political institutions is critical for the legitimacy of continued international administration of a territory beyond the initial emergency phase of an operation. And, yet, too rapid a transfer of authority carries its own risks: among other things, it can overwhelm a people emerging from the trauma of violent conflict as well as reinforce divisions that lie at the heart of the conflict as former warring parties compete for political power. Here, as with other aspects of international administration, we are reminded that there are no templates for transitional rule. Political institution-building raises a host of fundamental questions. Which structures, practices, and powers does a transitional administrator (TA) devise for a territorial entity? What are the principles and values that should underpin these institutions? How should the new political institutions relate, if at all, to previous structures and traditions? What is the appropriate pace and timing of institutional development? And, most critically perhaps, what are the processes by which these and related issues are to be decided? These challenges, some have argued, are akin to the challenges of colonial administration but new sensibilities today—many of them, in fact, the legacy of colonial rule—mean that in several important respects international administrators are navigating in uncharted waters.

Political Architecture International authorities have encountered very different political circumstances in their administration of war-torn territories. In both Kosovo and East Timor, where the erstwhile ruling powers had withdrawn completely from the territory, no formal political structures remained although parallel, clandestine, and (in the case of East Timor) traditional structures existed to varying degrees. In Eastern Slavonia, by contrast, political institutions remained intact—those constructed by the Republika Srpska Krajina—and international administrators worked with them pending reintegration of the territory into Croatia. In Bosnia and Herzegovina (BiH), finally, the political structures were largely (but not entirely) of international making, as the Bosnian Constitution is Annex 4 of the Dayton Accord.

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The development of political institutions in BiH anticipates many comparable efforts in other territorial administrations and has sometimes served as a point of reference—rightly and wrongly—for these other administrations. As such it provides a useful starting point for the analysis of political institution-building. In BiH, however, while international authorities possessed considerable discretion to design a new polity in the context of the Dayton peace negotiations, they were also constrained by the presence of two already existing political structures: the Serb Republic (Republika Srpska—RS) and the Federation of Bosnia and Herzegovina, the latter itself an international construct by which the United States and other third parties sought to unite Croats and Bosniacs (Muslims) into a single entity in 1994.2 The constitutional architects at Dayton chose to preserve the two entities and, in an effort to accommodate the opposing separatist tendencies of the Bosnian Serb leadership on the one hand, and the integrationist aspirations of the Federation (in particular, Bosniac) leadership on the other, established an integral state with a weak centre.3 As a result, the two entities that constitute BiH enjoy many of the prerogatives of a state—to the extent of possessing distinct citizenship, separate administrations, and even their own armies—while the functions and institutions of the central government are very few.4 Within the Federation, moreover, authority is devolved to ten self-contained cantons, further diluting 2

The Confederation Agreement Between the Bosnian Government and Bosnian Croats (the 'Washington Agreement') of 1 March 1994 sought to end the righting between Bosnian Croats and Muslims, which had begun in the spring of 1993, and to create a counterweight to the Bosnian Serbs by establishing a Muslim-Croat federation. See Ivo H. Daalder, Getting to Dayton (Washington, DC: Brookings Institution Press, 2000), 27. Text of agreement available at www.ecmi.de/cps/documents_bosnia_washington.html. 3 A third political unit is the District of Brcko, contested territory held in 'condominium' by RS and the Federation and administered by an OHRappointed Supervisor. See The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 2, Art. V; 'Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area Award' of 14 February 1997; and 'Final Award' of 5 March 1999, the latter two documents available at www.ohr.int/ ohr-offices/brcko under 'Brcko Arbitration'. 4 The original functions of the central state were limited to: foreign policy; foreign trade policy; customs policy; monetary policy; financing of the institutions and for the international obligations of BiH; immigration, refugee, and asylum policy; international and inter-Entity criminal law enforcement; establishing and operating common and international communications facilities; regulating inter-Entity transportation; and air traffic control. See Constitution of Bosnia and Herzegovina, Art. 111(1). Additional competences have been established subsequently.

112 Political Institution-Building the concentration of power. Not only are the competences of the central state limited but the state also lacks enforcement mechanisms and powers of taxation to enable it to finance its activities. These decentralizing features are complemented by a number of institutional arrangements that are designed to ensure that power is shared among the three principal national groups. Thus, as originally conceived by the Dayton Accord, the presidency consists of three members —one Bosniac and one Croat elected from the Federation, and one Serb elected from RS— each occupying the chair on a rotating basis and each able to veto a presidency decision that he or she may deem to threaten a Vital interest' of his or her entity (subject to confirmation by parliamentary representatives of the corresponding national group). Similar ethnic balancing was adopted for the upper house of the bicameral Parliamentary Assembly: the fifteen-member House of Peoples gives equal representation to all three national groups, with at least three members from each group required to be present to constitute a quorum.6 Moreover, each national group within the Parliamentary Assembly has the same right as presidency members to veto 'vital interest' legislation.7 In addition, an ethnic calculus is employed for the appointment of ministers and their deputies, who cannot be of the same nationality. These and other constitutional features —whose chief and perhaps only virtue is to deny political control to any one national group— have entrenched the fissures of the war and have thus inhibited BiH from functioning as an effective state. Joint institutions have been weakened by the regular rotation of chairs; the threatened use of the Vital interests' veto has blocked decision-making; and the many levels of autonomous government (entity, canton, and municipality) have resulted in the adoption of different laws, tax codes, and administrative procedures that have impeded cooperation among governmental bodies and prevented firms from operating easily throughout the territory. Moreover, these constitutional provisions maintain the salience of ethnic difference for participation in political life by establishing national criteria as the basis for election and appointment to numerous public offices.8 While at the time of Dayton these 5

Constitution of Bosnia and Herzegovina, Art. V(2)(d). Constitution of Bosnia and Herzegovina, Art. IV(1). 7 Constitution of Bosnia and Herzegovina, Art. IV(1), Art. IV(2), and Art. IV(3)M ). 8 BiH is not unique among democratic states in this regard. See Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977). 6

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arrangements may have appeared necessary to gain the agreement of all three warring parties, it soon became evident that they were crippling BiH and reinforcing the very ethnic divisions that had helped to fuel the violent conflict. It is doubtful, however, whether more integrative constitutional designs could have been realized at Dayton. Unlike in Germany and Japan in 1945, none of the three Bosnian forces had been defeated in war and the establishment of a more integrated state would have required the imposition of alternative arrangements on any dissenting parties, a task that no outside party was willing to undertake at the time. Instead, the High Representative (HR) has sought to strengthen joint institutions by executive fiat (i.e. through the exercise of his 'Bonn powers'), thus imposing legislation and establishing new state institutions, notably a Bosnian State Court, a State Border Service, and a Defence Reform Commission, among other bodies.9 There have also been periodic calls for 'rewriting Dayton'— replacing the constitution with one that emphasizes civic principles over ethnic categories—but these proposals have been outweighed by concerns that any Dayton II would re-open very basic questions about the nature of the Bosnian state and thus upset a fragile peace.10 A re-writing of sorts was achieved, however, by the Constitutional Court of Bosnia and Herzegovina, which, in a landmark decision in July 2000 (the 'Constituent Peoples' decision), found the privileged status accorded to Serbs in RS and to Croats and Bosniacs in the Federation to be unconstitutional because it violated the 9 The Brussels 2000 Peace Implementation Council (PIC) attached particular importance to the need for strengthening state institutions:

Effectively functioning State institutions are a prerequisite for a modern European State and for progress towards BiH's entry into European and Euro-Atlantic structures. Ensuring that BiH has such institutions remains a key strategic priority for the Council. Many public institutions at all levels, but in particular State institutions, continue to fail the citizens of BiH, due to lack of political will on the part of the ruling political parties and the continued existence of parallel institutions. (Declaration of the Peace Implementation Council, Brussels, 24 May 2000) 10

See Bosnia Report, new series 11/12 (August-November 1999), for a very interesting debate about revising Dayton. A proposal for turning BiH into a federal state with central, regional, and municipal governments was put forward by the European Stability Initiative (ESI) in January 2004. See ESI, 'Making Federalism Work—A Radical Proposal for Practical Reform', 8 January 2004, available at www.esiweb.org/pdf/esi_document_id_48.pdf.

114 Political Institution-Building fundamental equality of all citizens.11 (The constitutions of both entities fail to give due acknowledgement of all three 'constituent peoples', with consequences for their representation on official bodies in each entity.) The decision has far-reaching implications, many of which are still being played out, that may help to erode the ethnic bases of the two entities and thus enable BiH eventually to become a functional multinational state.12 (Other provisions of the entity and state constitutions, meanwhile, may be in violation of the European Convention on Human Rights or at least incompatible with the requirements for membership in various European institutions, which may bring further pressure to bear in the future in favour of constitutional reform.) The Constitutional Court, it is worth noting, is a mixed institution comprising three international judges and six national judges, and the 5 to 4 ruling in the Constituent Peoples' decision was only possible because of the affirmative votes cast by all three international judges (along with the two Bosniac judges)— a factor that again raises important questions about local 'ownership' of the reform process. If political institution-building in BiH has been a process of design and reform, in Kosovo and East Timor it has been a more gradual one of staged development from consultation to co-government and finally to self-government, paralleling the evolution of the two territories' civil administrations as discussed in Chapter 4. The UN Interim Administration Mission in Kosovo (UNMIK) and the UN Transitional Administration in East Timor (UNTAET) were both given mandates to establish local political institutions and to transfer authority to them—without much guidance, however, as to how this was to be done, although in the case of Kosovo the Security Council instructed the TA to take 'full account' of the provisions of the Interim Agreement for Peace and Self-Government in Kosovo that had been negotiated between Serbia/Federal Republic of Yugoslavia (FRY) and Kosovo Albanians in Rambouillet, France in February 1999.13 In the case of Kosovo, moreover, political institution-building has had to be 11

Constitutional Court of Bosnia and Herzegovina, 'Request for evaluation of certain provisions of the Constitution of Republika Srpska and the Constitution of the Federation of Bosnia and Herzegovina', Case No. U 5/98 (I-IV), 1 July 2000. 12 International Crisis Group, 'Implementing Equality: the "Constituent Peoples" Decision in Bosnia & Herzegovina', ICG Balkans Report No. 128, 16 April 2002. 13 SC Res 1244 (1999), 11 (a). The Albanian delegation at Rambouillet signed the accord; the Serb delegation rejected it. See Marc Weller, "The Rambouillet Conference on Kosovo', International Affairs, 75/2 (1999), 211-51.

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conducted in such a way as not to prejudice the determination of the final status of the territory. Both UNMIK and UNTAET moved quickly if somewhat cautiously at first: the initial political institutions that they established— the Kosovo Transitional Council (KTC) and the East Timor National Consultative Council (NCC) respectively—were setup very soon after the international administrations themselves were installed but, as we observed earlier, their members were appointed, not elected, and these were strictly consultative bodies. The second stage of development— co-government—was marked by the creation of proto-executive bodies. In Kosovo, the eight-member Interim Administrative Council (IAC), established as part of UNMIK's Joint Interim Administrative Structure (JIAS) in December 1999, was authorized not only to propose policy guidelines for the twenty 'dual desk' administrative departments, as noted in Chapter 4, but also to make recommendations to the TA for new regulations and amendments to the applicable law.14 Although the I AC dealt largely with procedural and administrative questions at first, it became involved increasingly in issues of a more substantive nature, such as management of the Mitrovica problem—the northern city divided between Serbs and Albanians— and preparation for the municipal elections held in October 2000.15 As Kouchner explains: I wanted to implicate the Kosovars, all the ethnic groups—Albanians and Serbs, Bosniacs and Roma, Ashkali, Turks, and the others—in the ensemble of decisions that concerned them or that had a bearing on the future of Kosovo ... The sharing of competences would allow them to become players but also responsible actors—that is, equally accountable with the international community: partners in success as well as in failure. Another advantage of this co-piloting was to permit the Kosovars to familiarize themselves with the administrative responsibilities from which they had been distanced for ten years during Milosevic's reign. From the perspective of the 'substantial autonomy' anticipated by Resolution 1244, this apprenticeship was indispensable.16

In East Timor, similarly, an eight-member Cabinet of the Transitional Government was established in July 2000 that had 'executive authority' over the offices and departments associated with its respective 14 UNMIK Regulation No. 2000/1, On the Kosovo Joint Interim Administrative Structure, 14 January 2000. 15 Report of the Secretary-General on the United Nations Interim Administration in Kosovo, UN Doc S/2000/177, 3 March 2000, para. 6. 16 Bernard Kouchner, Les guerriers de lapaix (Paris: Grasset, 2004), 326-7 (my translation).

116 Political Institution-Building portfolios but it could also make recommendations to the TA, and, enjoying even more authority than the I AC, could recommend regulations for consideration by the National Council (NC).17 The NC, which succeeded the NCC, in turn had the authority to initiate, modify, and recommend draft regulations.18 Both the I AC and the Cabinet comprised equal numbers of nationals and internationals initially (four plus four), and while efforts were made to take decisions jointly, any decisions—whether those of the I AC, the Cabinet, the NCC, or the NC—were subject ultimately to the approval of the TA.19 Consensus was generally easier to achieve in East Timor, where divisions within the local population did not run as deep as the Serb-Albanian split in Kosovo. All UNTAET regulations, as a result, were endorsed by the NCC, and the TA issued only one draft regulation that the NC had refused to approve: a regulation to set up commissions to survey public opinion on constitutional issues.20 Consensus, in the case of East Timor, did not necessarily signify total satisfaction with the governing arrangements, however. In December 2000, the East Timorese members of the Cabinet threatened to resign in protest over what they claimed to be UNTAETs failure to share decision-making authority with them or to provide them with adequate resources to carry out their responsibilities. 'The East Timorese Cabinet members are caricatures of ministers in a government of a banana republic. They have no power, no duties, nor resources to function adequately', they wrote in a letter to Vieira de Mello.21 This incident and other expressions of frustration spurred the United Nations to put East Timor independence on a more accelerated track. Similarly, Kosovar frustration with the slow pace 17

UNTAET Regulation No. 2000/23, On the Establishment of the Cabinet of the Transitional Government in East Timor, 14 July 2000. 18 UNTAET Regulation No. 2000/24, On the Establishment of a National Council, 14 July 2000. 19 The Rambouillet accord contained a similar provision: decisions were to be adopted on a consensual basis but in the event that consensus could not be achieved, the decision of the Chief of the Implementation Mission would be final. Interim Agreement for Peace and Self-Government in Kosovo, Ch. 5, Art. 1(3). 20 Anthony Goldstone, 'UNTAET with Hindsight: The Peculiarities of Politics in an Incomplete State', Global Governance, 10/1 (2004), 94. The National Council, Goldstone argues, was concerned that the constitutional commissions would undermine the autonomy of the Constituent Assembly. Vieira de Mello later issued the regulation as a directive. 21 Cited in Joel C. Beauvais, 'Benevolent Despotism: A Critique of U.N. State-Building in East Timor', New York University Journal of International Law and Politics, 33/4 (2001), 1130 (fn. 111).

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of devolution prompted the United Nations in 2001 to accelerate progress towards the establishment of institutions of self-government.22 The third stage of development—self-government—can be said to have commenced in Kosovo with UNMIK's elections for municipal assemblies in October 2000, although the watershed event was the TA's promulgation of a Constitutional Framework for Provisional SelfGovernment in Kosovo on 15 May 2001.23 The Constitutional Framework anticipated the transfer of authority to provisional institutions in the executive, legislative, and judicial fields that were to be established following elections for a Kosovo-wide assembly, held in November 2001. These institutions included, in addition to the Assembly, a presidency, a government, courts, and an ombudsperson. Although the powers that the Kosovars now possessed were extensive, they were not unlimited: the Constitutional Framework reserved specified powers and responsibilities to the TA, notably in the areas of monetary policy, external relations, customs and the cross-border/boundary transit of goods, the administration of socially owned property, and key aspects of law enforcement institutions and the judiciary. These were deemed to be either too sensitive to transfer to local authorities or to have implications for the status of Kosovo. Despite the prospect of very significant gains in autonomy, the Albanians at first rejected the Constitutional Framework because it did not contain a provision for a referendum on Kosovo independence. Here we find another illustration of how the uncertainty surrounding Kosovo's future status has had bearing on the politics of the international administration.24 In East Timor, the movement towards self-government was more complete, culminating ultimately in independent statehood. In March 2001—three months after the East Timorese Cabinet members had threatened to resign—Sergio Vieira de Mello announced that elections for a Constituent Assembly would be held the following August. Subsequent to the elections, an all-East Timorese Council of Ministers was established—still subject ultimately to the authority of the TA, however—to succeed the Transitional Cabinet.25 22

On Kosovar frustrations, see Veton Surroi, 'The Future of Kosovo', Internationale Politik, Transatlantic edn., 2/2 (2001), 43-6. 23 UNMIK Regulation No. 2001/9, On a Constitutional Framework for Provisional Self-Government in Kosovo. 24 Alexandras Yannis, "The UN as Government in Kosovo', Global Governance, 10/1 (2004), 76. 25 UNTAET Regulation No. 2001/28, On the Establishment of the Council of Ministers, 19 September 2001.

118 Political Institution-Building With its approval of East Timor's Constitution, the Constituent Assembly in turn transformed itself into East Timor's first legislature on 24 January 2002. A presidential election was held soon after, on 14 April, with Xanana Gusmao emerging as the winner, having captured 82.7 per cent of the popular vote. East Timor became a sovereign independent state one month later on 20 May 2002. Although in both Kosovo and East Timor the progressive transfer of authority can be said to have been part of a conscious design to shift responsibility for governance to the local population, it is also true that international authorities often found themselves responding reactively rather than pro-actively. As noted above, frustration on the part of East Timorese appears to have propelled the process forward at critical stages.26 Vieira de Mello would later acknowledge the failure of the United Nations to share power more readily: 'We should have moved more briskly in bringing national partners onboard from the very beginning in a more truly substantive fashion. While our consultation (and desire to do so) in those early days was genuine, our approach towards achieving that failed truly to bring in the Timorese on all aspects of policy formulation and development/27 It is hardly surprising, however, that a local population may become impatient with the pace of devolution, particularly when independence is the intended outcome. Nor is frustration necessarily a bad thing if it concentrates minds on the assumption of responsibility—a disposition that has been lacking in BiH, by contrast, in part because a culture of dependency has developed there. Yet for all its shortcomings, the United Nations was generally responsive to the frustrations of the East Timorese (and, to a lesser extent, the Kosovars) as they arose, in both cases designing new structures and procedures in an effort to accommodate the demands of the local population and its leadership. Whether the United Nations and other international organizations have prepared East Timor or Kosovo adequately for the rigours of self-rule, as discussed in Chapter 4, is another matter. One of the factors that accounts for the slowness in devolving authority more quickly to the East Timorese arguably was the 26

Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004), 135-40. 27 Sergio Vieira de Mello, 'UNTAET: Debriefing and Lessons', message to the UNITAR-IPS-JIIA conference, United Nations University, Tokyo, 16-18 September 2002, cited in International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 4 (East Timor), para. 295.

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tendency to apply the wrong lessons from the UN's operations in the Balkans. Many of UNTAET's initial core personnel were drawn from UNMIK, including Vieira de Mello, and a key lesson that some of them derived from their earlier experiences was the need to establish unchallenged control over a territory from the outset.28 But whereas in Kosovo there had been local forces that rivalled the United Nations (notably the Kosovo Liberation Army (KLA) and Belgrade's surrogates among the Serbs), in East Timor the local leadership was entirely supportive of the UN's aims and might have been entrusted with more responsibility sooner. Here and elsewhere it is apparent that one must be careful about generalizing on the basis of particular cases, valuable though 'lessons learned' exercises may be. Frustrations may arise not only in relation to the transfer of responsibility but also when international authorities are ignorant of or indifferent to local structures and traditions as they administer a territory and set about to establish new political institutions. While in Kosovo and East Timor, and to a lesser extent in BiH, formal political institutions either did not exist at the time of the establishment of the international administration or were deemed by international authorities to be inadequate, these territories were by no means terrae nulli. In East Timor, there was a clandestine system for resistance that ran parallel to the Indonesian governmental system, and the clandestine system itself was built on traditional socio-political structures.29 The United Nations was largely unaware of these structures, however. Its notion of the state—an entity made up of citizens who enjoy equal rights and of state bodies organized along executive, legislative, and judicial lines—was not necessarily compatible with traditional concepts of legitimacy in East Timor, which are predicated in part on ideas of sacred and ancestral authority. How sustainable internationally designed structures may be under these circumstances is an open question. As Tanja Hohe has observed in relation to the UN administration in East Timor, it is 'impossible to create instant trust in [non-traditional] state bodies ... The population's trust in state 28

Author interviews with UNTAET officials, Dili and London. See also Jarat Chopra, 'The UN's Kingdom of East Timor', Survival, 42/3 (2000), 33-4; and Simon Chesterman, 'East Timor in Transition: From Conflict Prevention to State Building', International Peace Academy Report, May 2001,13-14, available at www.ipacademy.org/Publications/Reports/Research/PublRepoEastTimor_ body.htm. 29 Tanja Hohe, 'The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor', Contemporary Southeast Asia, 24/3 (2002), 569-89.

120 Political Institution-Building bodies has to be fostered and the puzzle of how to overcome paradigmatic differences in terms of local governance has to be solved.'30 This observation serves to underscore the importance of local knowledge, which is too often lacking among international officials, who may be parachuted into an unfamiliar land and have little time or inclination to overcome their lack of knowledge.31

Elections One of the key mechanisms for the building of political institutions is elections. Elections facilitate the selection of local interlocutors and their participation in both international and domestic structures of territorial governance. They are particularly important because they confer legitimacy—local and international—on individuals in whom considerable authority and responsibility will consequently reside.32 However, the effectiveness of elections in this regard assumes not only that they are perceived to be free and fair but also that they are broadly accepted as a valid process for the acquisition of political power among competing parties. In societies with little or no democratic experience or in fiercely divided societies, these assumptions may not pertain. In such cases, elections may not contribute to national reconciliation and can even exacerbate tensions. In the past elections have often been viewed as an exit strategy, the final act that allows a third party to relinquish its responsibilities in respect of a particular territory—whether as a colonial administrator, a military occupier, or a peacekeeping force—through the transfer of authority to (democratically) elected local officials.33 And often, for this reason, elections have become the principal focal point of third party involvement, especially at the stage when the costs of 30

Tanja Hohe, 'The Clash of Paradigms: International Administration and Local Political Legitimacy in East Timor', Contemporary Southeast Asia, 24/3 (2002), 585, 586. 31 In contrast with the UN officials, many of the World Bank officials in East Timor had been working in the region for many years. 32 As Sergio Vieira de Mello observed, '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 in the absence of elections, on what basis are leaders to be chosen?' 'How Not to Run a Country: Lessons for the UN from Kosovo and East Timor', unpublished manuscript (2000), 4. 33 Charles T. Call and Susan E. Cook, 'On Democratization and Peacebuilding', Global Governance, 9/2 (2003), 237.

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administering a territory may be thought to be too great. Elections have thus sometimes been arranged too soon from the standpoint of the ability of a fragile peace to withstand the competitive pressures of the electoral process. In such cases, as a result, there may be a relapse into civil war, as occurred in Angola in 1992, or an illegal seizure of power, as took place in Cambodia in 1993, following the UN-supervised elections in those two countries. If elections are to be effective, therefore, as part of a strategy for building local political institutions and fostering, where necessary, a political culture conducive to democratic governance, they must not be arranged hastily. Yet in the case of BiH, the architects of the Dayton Agreement chose to put elections on the 'fast track'. Dayton mandated elections for state, entity, and municipal offices to be held six to nine months after the agreement came into force.34 The commitment to early deadlines arguably undermined the very goals that this policy was intended to support. The importance attached to prompt elections reflected the Clinton administration's interest in being able to point to demonstrable progress in BiH on the eve of the 1996 US presidential election. In fact, the Organization for Security and Co-operation in Europe (OSCE), which was mandated to supervise the Bosnian elections, was known locally as the Organization to Save Clinton's Election.35 But there were other less parochial reasons that recommended the accelerated pace to policy-makers. First, the Western powers wanted the local parties to accept responsibility for their own futures sooner rather than later, and hoped that, in the face of an impending Western withdrawal (IFOR was slated to redeploy twelve months after Dayton came into force), the local parties would appreciate the need to work together. Second, it was thought that the elections would serve as an instrument to blunt the forces of militant nationalism, since candidates opposed to reconciliation and integration might be seen now to be impediments to peace. As refugees and internally displaced persons (IDPs)—many of them the targets of aggressive nationalism—were expected to vote in those municipalities where they had been registered before the war, it was thought that their votes would also dilute the influence of militant nationalists.36 34

The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 3, Art. II.4. 35 Patrick Moore, 'A Royal Mess', Transition, 18 October 1996, 77. 36 Refugees and IDPs were required to vote in the municipality where they resided in 1991, from which many of them had been 'ethnically cleansed', although

122 Political Institution-Building The tight and inflexible deadline set by the Dayton Accord, however, could and did have the opposite effect—a consequence that many analysts had anticipated. Six to eight months allowed too little time for much new thinking to emerge that might produce a realignment of political forces. The knowledge that peacekeeping forces would depart in twelve months (another decision driven by the Clinton administration's concerns about re-election) only compounded the problem even if Clinton later decided not to withdraw US troops. Bosnian voters uncertain about their future were inclined to choose the safe option and to vote for the same nationalist parties that had 'protected' their interests during the war.37 As a result, the exercise was in many respects more of an ethnic census than an election, with Serbs voting primarily for the Serbian Democratic Party (SDS), Croats for the Croatian Democratic Union (HDZ), and Bosniacs for the Party of Democratic Action (SDA). Moreover, because the elections were internationally sanctioned, they conferred on political leaders—among them presumed war criminals38—a greater degree of legitimacy than many of them had ever enjoyed before. Even Richard Holbrooke, the chief architect of Dayton, would worry aloud about the implications of this process on the eve of the September 1996 ballot: 'Suppose the elections were declared free and fair [and those elected] were racists, fascists, and separatists who are publicly opposed to [peace and reintegration] ? That is the dilemma.'39 Partly in reaction to the Bosnian experience, a more gradual approach was taken to elections in Kosovo and East Timor. In Kosovo, elections were not held until October 2000, sixteen months after the establishment of the operation, and then only at the municipal level. The later elections arguably gave time for more moderate political forces to gain ground lost to the KLA and, because they were held at the municipal level, shifted attention away from some of the they could apply to the Provisional Election Commission to vote elsewhere. The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 3, Art. IV. 37 Of course, it cannot be assumed that these parties would have lost the elections had they been held later. For analysis of why voters may choose not to replace a leader even after a costly war loss, see Michael Colaresi, 'Aftershocks: Rivalry, Regime Dynamics and Post-War Leadership Tenure', International Studies quarterly, 48/4 (2004), 717-27. 38 Art. IX of the Bosnian Constitution, however, bars indicted or convicted war criminals from standing for or holding public office. 39 Holbrooke cited in Farced Zakaria, "The Rise of Illiberal Democracy', Foreign Affairs, 76/6 (1997), 22.

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larger contentious issues, notably that of Kosovo independence.40 (Kouchner, concerned about the legitimacy of administering the territory without elected interlocutors, had actually sought to hold elections earlier, in June 2000, but the OSCE feared that early elections would benefit the more radical parties.)41 It was not until November 2001 that the first province-level elections were held—for the presidency and the Assembly of Kosovo—by which point there was less pressure on the Kosovo Albanian leadership to make any grand gestures in support of independence, which would certainly have aggravated relations with the Serbs and driven a wedge between the Albanians and the international community.42 In East Timor, the first elections were not held until 30 August 2001, nearly two years after the establishment of the transitional administration, for the purpose of electing eighty-eight members to a Constituent Assembly. Gradualism in this case was abetted by the local population's own wariness about elections, notwithstanding the frustration of the local leadership with the slow pace of devolution discussed above. The East Timorese had had very limited prior experience with balloting, and none of it especially positive: the 1999 referendum on independence and the elections held after Portugal's withdrawal in 1975 were both marred by massive violence. As a consequence, many East Timorese now preferred to defer elections; some even expressed a preference for non-party politics—that is, a coalition of national unity, which, in effect, the National Council of Timorese Resistance (CNRT) became after the exodus of pro-Indonesian factions from the territory.43 UNTAET thus decided to launch a civic education programme in an effort to allay concerns and prepare the population for the Constituent Assembly elections. But having failed first to consult and then to include local non-governmental organizations (NGOs) and the CNRT sufficiently, the UN's initial programme (proposed in September 2000) met with such strong opposition that the start of 40

Surroi, 'The Future of Kosovo', 44. Author interview with Kouchner, New York, October 2002. 42 Similarly, in post-war Germany elections were held first for local governments in the US zone, in January 1946, and throughout the rest of the year for constituent assemblies to write the constitutions of the three Lander that the United States controlled. Elections for the Bundestag were not held until September 1949. See Tony Smith, America's Mission: The United States and the Worldwide Struggle for Democracy in the Twentieth Century (Princeton, NJ: Princeton University Press, 1994), 158. 43 Author interviews with local political leaders in Dili and the districts. See also 'It's Worrying, This Democracy', The Economist, 28 June 2001. 41

124 Political Institution-Building the programme had to be delayed until March 2001, just five months before the elections.44 Earlier elections of a kind had in fact been held in East Timor, from March 2000, for the establishment of village and sub-district councils as part of the Asian Development Bank's Community Empowerment and Local Governance Project (CEP). The CEP provided small block grants to these democratically elected councils, of which some 450 were created in the first year of the programme, that then decided on development projects based on proposals submitted by the villages.45 The broader political purpose of the CEP was to promote grass-roots participation in development activities and the exercise of democratic governance. UNTAET initially resisted the initiative out of fear, Bank officials say, of relinquishing control to popular bodies, but it backed down in the face of combined Bank and East Timorese pressure.46 The UNTAET regulation authorizing the establishment of the councils, however, specifies that the councils 'shall not exercise legislative, executive or judicial power of government' and 'shall not prejudice any constitutional or institutional development to be provided by UNTAET in East Timor'.47 In Eastern Slavonia the timetable for elections was constrained, like UNTAES itself, by the mandated limits on the duration of the transitional administration (twelve months renewable). The Basic Agreement called for the administration to organize 'not later than 30 days before the end of the transitional period, elections for all local government bodies, including for municipalities, districts, and counties, as well as the right of the Serbian community to appoint a joint Council of municipalities'. The Tudjman government was eager for early elections and proposed that they be held in December 1996, following which the government was prepared to argue that the UN mission had served its purpose and could now be terminated. But at the same time the government was very slow to issue citizenship and other Croatian documents to the Serbs, which the Serbs required before 44

Goldstone, 'UNTAET with Hindsight', 95. World Bank, 'Memorandum of the President of the International Development Association to the Executive Directors on a Transitional Support Strategy of the World Bank for East Timor', Report No. 21184-TP, 3 November 2000, Annex D, xvii. 46 Author interviews with Asian Development Bank officials, Dili. See also Chopra, 'The UN's Kingdom of East Timor', 30-1. 47 UNTAET Regulation No. 2000/13, On the Establishment of Village and Sub-District Development Councils for the Disbursement of Funds for Development Activities, 10 March 2000. 45

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Figure 5.1 Timing of Elections Sources: Cousens and Cater, Toward Peace in Bosnia; King's College London, A Review of Peace Operations; Vesna Skare-Ozbolt and Ivica Vrkic, Olujnimir (Zagreb: Narodne novine, 1998).

they could register to vote. The delays, it seems, were intentional; the government calculated that if it could limit the number of Serbs to whom were issued Croatian documents, it would have implications not only for the elections but also for any Serb claims to the repossession of property.48 Transitional Administrator Jacques Klein was able to use Tudjman's impatience to expedite the issuing of documents by making it clear that the United Nations would not hold elections until the Serbs were in possession of the necessary documents. The Croatian government became more cooperative—although individual Croat officials were not always—and elections were scheduled for 13-14 April 1997, chosen in part because the dates coincided with those of the national elections (see Figure 5.1). The elections in Eastern Slavonia offer a good illustration of how blurred the boundaries can be between administrative and political matters. Almost every aspect of the UN's electoral responsibilities had political implications: establishing the criteria for the eligibility of candidates and voters; determining the system of representation and the institutions to which representatives would be elected; delimiting the boundaries of municipalities, districts, and counties; deciding upon 48

Christine Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes: Legacy of the United Nations in Eastern Slavonia and Transitional Missions (Clementsport, Nova Scotia: Canadian Peacekeeping Press Publications, 2002), 115.

126 Political Institution-Building the legal framework to be used for the elections; developing criteria for equitable access to the media and public finances; and, as we just saw, establishing a timetable and procedures for elections. A Joint Implementation Committee on Elections was created to negotiate differences between the parties on these and other issues but agreement was often difficult to achieve and sometimes possible only after the direct intervention of the TA.49 However, no party contested either the election procedures or the election results: the leading Serb party, the Independent Democratic Serb Party (SDSS), won an absolute majority in eleven out of twenty-eight municipalities, while in the city of Vukovar the SDSS and Tudjman's HDZ each won twelve out of twenty-six seats, prompting the two parties to agree to power-sharing arrangements. A welcome development, because it necessitated cooperation between the parties, the power-sharing agreement, however, was not fully implemented.50 Electoral rules and procedures can have a significant impact on political outcomes, and the choice of arrangements, therefore, may be anything but neutral.51 For instance, electoral arrangements that help to ensure political stability, as 'first past the post' arrangements do, may also favour one group disproportionately. Such arrangements may thus exacerbate differences in societies that are already strongly divided. Proportional representation may be fairer but it can lead to the chronic instability characteristic of governments lacking strong majorities. And fairness may not always be the issue: a group may simply wish to be in possession of power at almost any cost—even to the extent of reneging on agreements that it had pledged to respect. While there is no consensus among scholars as to the most appropriate system for divided societies, there is widespread agreement that some form of power-sharing involving all major groups is essential to sustain peaceful relations.52 49

Christine Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes: Legacy of the United Nations in Eastern Slavonia and Transitional Missions (Clementsport, Nova Scotia: Canadian Peacekeeping Press Publications, 2002), 114. 50 Derek Boothby, "The Political Challenges of Administering Eastern Slavonia', Global Governance, 10/1 (2004), 50. 51 For a discussion of electoral procedures and institutional design in postconflict societies, see Samuel H. Barnes, 'The Contribution of Democracy to Rebuilding Postconflict Societies', American Journal of International Law, 95/1 (2001), 86-101. 52 Arend Lijphart, 'The Power-Sharing Approach', in Joseph V. Montville (ed.), Conflict and Peacemaking in Multiethnic Societies (New York: Lexington Books, 1991), 491-509. Some scholars argue instead that power-sharing only reinforces

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Given the potential implications of electoral outcomes for the political development of a state or territory, TAs and other third parties have sometimes attempted various forms of 'electoral engineering' in an effort to influence these outcomes—most notably in BiH, where internationals have viewed the emergence of a new (non-nationalist) leadership as necessary to bring stability to the country.53 In the September 1998 elections, for instance, the international community offered strong backing of 'moderate' candidates—including pledges of additional financial assistance if they were to win—to enhance their popularity with the public. International backing, however, seems to have contributed instead to their defeat, as some voters resented the intervention.54 International officials were less overt but no less determined in the support they lent the reformist Alliance for Change coalition in the 2002 elections. The Office of the High Representative (OHR) sought to make re-election of the Alliance more attractive to voters by providing the Alliance with an economic reform programme for presentation at the PIC Steering Board on 30 July 2002 and announced subsequently that the PIC's acceptance of the programme constituted a 'contract of sorts between BiH and the international community'. HR Paddy Ashdown then wrote to 1.3 million Bosnian households urging them to vote 'for reform'—a clear allusion to the Alliance.55 Here again international intervention failed to achieve its desired outcome and may even have been a factor contributing to the Alliance's defeat. International authorities have also sought to devise electoral rules that would favour particular outcomes. For instance, in 2000 ethnic divisions and that it is better to mitigate division through the use of electoral systems that encourage cooperation and accommodation among rival groups and thus break down the salience of ethnicity. See, for instance, Benjamin Reilly, Democracy in Divided Societies: Electoral Engineering for Conflict Management (Cambridge: Cambridge University Press, 2001). 53 As the US Commission on Security and Cooperation in Europe noted in its report on the September 1998 elections: 'continuous elections ... have been viewed by the international community as a means to bring stability and recovery to a country divided by extreme nationalist political leaders, particularly among the Serb population, many of whom remain in positions of power or influence*. Cited in Carrie Manning and Miljenko Antic, 'The Limits of Electoral Engineering', Journal of Democracy, 14/3 (2003), 48. 54 International Crisis Group, 'State of the Balkans', ICG Balkans Report No. 47, 4 November 1998,13. 55 International Crisis Group, 'Bosnia's Nationalist Governments: Paddy Ashdown and the Paradoxes of State Building', ICG Balkans Report No. 146, 22 July 2003,10.

128 Political Institution-Building the OSCE-led Provisional Election Commission (PEC) changed the way in which votes are cast for members of the Federation of Bosnia and Herzegovina's upper chamber (House of Peoples), who are elected indirectly by the cantonal assemblies. The PEC decided to allow each cantonal elector a say in the selection of all deputies, with the expectation that this would increase the likelihood of more moderate delegates emerging because they would need to appeal to both Croats and Bosniacs rather than to their own ethnic group alone.56 The idea behind the regulation was consistent with conflictmanagement approaches that advocate the use of electoral rules to promote inter-ethnic cooperation. But the timing—just one month before the election—played into the hands of Croatian nationalists who exploited the apparent attempts at manipulation and organized a referendum on the rights of Croats, which was held on the same day as the elections.57 While other measures have also been adopted to limit the influence of nationalists—for instance, rules prohibiting candidates from occupying illegally the property of refugees and displaced persons or rules requiring that candidates not serve on public companies—these have provoked less fierce reaction from local leaders perhaps because they are not so obviously intended to achieve specific electoral outcomes and, moreover, can be seen to be in line with European standards. The PEC regulation was later repealed and the PEC itself replaced by an all-Bosnian Election Commission of Bosnia and Herzegovina whose members are appointed by the HR. Electoral engineering is not necessarily a bad thing. Established democracies also engage in it to maintain peaceful relations in divided societies when, for instance, they set aside seats for minorities or redraw district lines to ensure better representation or require candidates to draw votes from across ethnic and other lines.58 However, when electoral engineering is designed to achieve a particular result in a particular election—as it seemed in the aforementioned Federation election—it raises fundamental questions about the legitimate and effective exercise of executive authority on the part of a TA. These practices, moreover, are indicative of some of the unique political challenges that transitional administrations face. For unlike other peace operations, where international authorities are mandated to play little more than a supporting role, international administrations are often 56

Manning and Antic, "The Limits of Electoral Engineering', 53. For details, see International Crisis Group, 'Bosnia's November Elections: Dayton Stumbles', ICG Balkans Report No. 104,18 December 2000. 58 Lijphart, Democracy in Plural Societies. 57

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burdened with a much greater responsibility: to transform a society and put it on a liberal democratic footing. In other words, it is not only the process that matters in these cases—for instance, the holding of free and fair elections—but often also the outcome.

Democratization The goal of democratization is one of the hallmark characteristics of political institution-building within international administrations, though it is not of course a goal unique to international administrations. Democracy, many would argue, has become a 'settled norm' in the post-Cold War period. As UN Secretary-General Boutros Boutros-Ghali observed in An Agenda for Democratization, '[T]he practice of democracy is increasingly regarded as essential to progress on a wide range of human concerns and to the protection of human rights.'59 Democracy is not without its detractors and legitimate questions have been raised about the prioritization and timing of democratization—particularly in relation to war-torn and 'transitional' societies, where free expression and the exercise of other civil and political liberties may sometimes help to fuel conflict.60 But there is a growing international consensus that democratic governance is a human right and a requirement for human development and peaceful relations within and between societies.61 This consensus is reflected in various constitutive international instruments—many of which enjoy very wide if not universal support—as well as in the aid programmes of major donor states that aim to promote 'good governance' and in the cooperative efforts of new or restored democracies themselves.62 This same consensus in support of democratization informs political institution-building efforts in the context of international administrations. While democracy may be a settled norm, the definition and content of democracy certainly are not. Ostensibly the United Nations does not prescribe any particular model of democracy. As An Agenda for Democratization states, 'it is not for the United Nations to offer 59

An Agenda for Democratization, UN Doc A/51/761, 20 December 1996, para. 3 (emphasis added). 60 Edward D. Mansfield and Jack Snyder, 'Democratization and the Danger of War', International Security, 20/1 (1995), 5-38. 61 Thomas M. Franck, "The Emerging Right to Democratic Governance', American Journal of International Law, 86/1 (1992), 46-91. 62 See Roland Rich, 'Bringing Democracy into International Law', Journal of Democracy, 12/3 (2001), 20-34.

130 Political Institution-Building a model of democratization or democracy or to promote democracy in a specific case. Indeed, to do so would be counter-productive to the process of democratization which, in order to take root and to flourish, must derive from the society itself.'63 And yet in their capacity as TAs, both the United Nations and the OHR—together with the many associated multilateral organizations and donor states—have clearly sought to promote particular forms of democracy to the extent, for instance, that they have endeavoured to defeat particular political parties which, although legally established, have been considered to have political programmes at odds with the aims of the international authorities. Other features of internationally led democratization initiatives, such as the promotion of women in politics and minority rights guarantees, would also appear to betray a liberal bias that may not always be shared by the local population, even if these measures are underpinned by socio-economic, political, or other considerations quite independent of any liberal designs. In this regard, current efforts to democratize war-torn territories are not unlike those of the United States, Britain, and France in Germany and Japan after the Second World War.64 Although these too were to become democratic states, the local population was not to be allowed to decide on the forms of their government entirely by themselves. Despite the fact that the American Initial Post-Surrender Policy for Japan (29 August 1945) stated that 'it is not the responsibility of the Allied powers to impose upon Japan any form of government not supported by the freely expressed will of the people', the US-drafted Japanese Constitution contained extensive individual rights and freedoms that General Douglas MacArthur, the Supreme Allied Commander, thought necessary for Japan's democratic development but that clashed with the country's more collectivist values.65 Yet if foreign powers, then and now, have sought to remake the territories they administer in their own image, it has been to a large extent in the belief that an international order founded on a society of liberal democratic states would be a more peaceful order.66 That is not to say that the foreign powers have not also been motivated 63

An Agenda for Democratization, para. 10. Robert Jackson, 'International Engagement in War-Torn Countries', Global Governance, 10/1 (2004), 21-36. 65 Smith, America's Mission, 159. Unlike in the Philippines and Central America earlier, however, the United States did not impose a US-style presidential system on Japan, where a parliamentary system was adopted. 66 Jackson, 'International Engagement in War-Torn Countries', 30. 64

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by more parochial ideological considerations, but these should not obscure the more general considerations behind their democratization efforts. Some observers, however, have given this drive for democratization, in the context of international administration, a much broader and even sinister interpretation. David Chandler, for instance, argues that the international consensus around democratization in BiH (and presumably elsewhere) 'has little to do with either democracy or Bosnia itself'.67 Rather, he contends, it is the vehicle through which regional and international organizations, threatened with obsolescence after the Cold War, have endeavoured to transform themselves and to redefine their political and strategic objectives: *[T]he drive behind democratization can be located in the needs of international institutional actors for new forms of co-operation and new ways of legitimating their international regulatory role/68 The democratisation process in Bosnia has been central to the reshaping of international institutions in the post-Cold War period. The international consensus that developed through the Bosnian war tied European and US interests together and reshaped international co-operation under US leadership through the NATO alliance. NATO has also been the key institution for reintegrating the former Soviet bloc states into the international community. Bosnia was not just NATO's defining postCold War success, but also remains a central focus for cohering the alliance.69

There can be no doubt that the international administration of BiH, together with other transitional authorities, have been a catalyst for farreaching changes in the institutional frameworks of regional and international security organizations (although the military interventions that preceded the establishment of many of the administrations need also to be taken into account). NATO has renewed purpose; the European Union has greater capacity for joint security initiatives; and the United Nations is engaged in some of the most ambitious conflictmanagement operations in its history. Yet to say that this has been the dynamic behind democratization is to misapprehend the relationship between these developments. Democratization has not furnished a pretext for greater major-power cooperation; the rationale for such cooperation was amply provided by the major powers' incoherent 67

David Chandler, Bosnia: Faking Democracy after Dayton (London: Pluto 68 Press, 1999), 188. Ibid., 193. 69 Ibid.

132 Political Institution-Building approach to the Balkan crises of the 1990s.70 Moreover if BiH is merely the 'fulcrum' for international cooperation, then, Chandler observes correctly, there should be 'less necessity to talk up the problems of other states such as Macedonia and Albania, or to intervene more directly in the question of Kosovo'.71 But, of course, the opposite has been true precisely because democratization (and human rights) are regarded as valuable in their own right. Others have gone farther, suggesting that democratization is a cloak for a new imperialism that dares not speak its name. But if that is so, international administration is a peculiar kind of imperialism—one that requires the cooperation of a large number of states (unlike, say, the US-led military occupation of post-Saddam Iraq), one in which the costs outweigh any obvious material or strategic gains, and one that does not aspire to more than the temporary exercise of control over a territory. Indeed, in the cases of Eastern Slavonia and East Timor, the international administrations put themselves out of business in fairly short order. To paraphrase one observer, transitional administrations may perhaps govern using some of the methods of empire but that does not make them instruments of imperialism.72 If democratization is a hallmark characteristic of political institutionbuilding, it is the view of policy architects generally that it requires bottom-up initiatives to complement the various top-down initiatives that we have been discussing until now. While the promotion of democracy itself is nothing new, donor states and aid organizations— drawing lessons from the experiences of democratic transition and consolidation across the globe during the 1970s and 1980s—have been attaching particular importance in recent years to the role that civil society can play in articulating citizens' interests and holding governments accountable for their actions.73 One of the early priorities of many of the TAs, therefore, has been to seek to strengthen civil society by establishing an environment that encourages the emergence of 70

On divisions among the major powers vis-a-vis the crisis in the former Yugoslavia and efforts to overcome them, see Richard Caplan, 'International Diplomacy and the Crisis in Kosovo', International Affairs, 74/4 (1998), 745-61. 71 Chandler, Faking Democracy after Dayton, 189. Chandler wrote his book before the major NATO and EU military and diplomatic interventions in Kosovo and Macedonia. 72 Martin Woollacott, 'Something is being born, but let's not call it empire', The Guardian, 20 June 2003. Woollacott was writing with the allied administration of post-Saddam Iraq in mind. 73 Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington, DC: Carnegie Endowment for International Peace, 1999), ch. 5.

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domestic NGOs and their participation in civic life. Thus by the end of its first year of operations, the OSCE in BiH had established— uniquely for an OSCE mission—a separate Democratization Branch, one of whose principal aims was to promote the development of civil society by supporting the work of local NGOs. And within just a few months of taking office, Bernard Kouchner promulgated Regulation No. 1999/22 to facilitate, and regulate, the activities of local NGOs in Kosovo. The OSCE in turn established resource centres to provide advice, technical equipment, and other assistance to these organizations. By the time of his 6 June 2000 report to the Security Council, the UN Secretary-General was able to report that more than 200 domestic NGOs were operating throughout the province, many of whose members were taking part in truly independent voluntary associations for the first time.74 The actual contribution that NGOs have made to civic life in the administered territories has been variable, and international administration authorities have not always been receptive to the input from these organizations. But in many cases local NGOs have created opportunities for meaningful citizen participation in debate bearing on the making and implementation of public policy, both international and domestic. Another area of civil society that has received particular attention by international administrators has been that of the local media. Preoccupation with the media is in part a reflection of the critical role that newspapers and broadcast outlets are perceived to have played in fomenting and sustaining recent violent conflicts. Throughout the former Yugoslavia, for instance, prior to and during the wars that raged there, governments used their control over the media to incite national fears and hatreds in order to make thinkable the unthinkable: fierce ethnic fighting amongst ethnically diverse peoples who had been living peacefully together for many years.75 Mindful of the need to ensure against the use of the media in support of aggressive aims, international administrators have undertaken to regulate the media, to facilitate the training of journalists, and even to provide media coverage of their own, although the latter, lacking authenticity, has not generally attracted a significant audience. Democratization, and political institution-building more specifically, entail many other activities far too numerous to examine 74

Eric Chevallier, L 'ONUau Kosovo: lemons de la premiere MINUK, European Union Institute for Security Studies Occasional Paper No. 35, May 2002,17. 75 Mark Thompson, Forging War: The Media in Serbia, Croatia and Bosnia-Hercegovina, rev. edn. (Luton: University of Luton Press, 1999).

134 Political Institution-Building here—including assistance in the drafting of constitutions, programmes to strengthen parliamentary assemblies, voter education, the development of political parties, aid to trade unions, and efforts to increase citizen involvement in decision-making. More than any other feature of a transitional regime, political institution-building has potentially far-reaching implications for the future political complexion of an administered territory. And yet, despite the considerable resources that have been poured into political institution-building, many scholars are cautious in their assessment of the effectiveness of international efforts generally. As Thomas Carothers concludes in his magisterial study of democracy promotion, 'On the whole, democracy programs are at best a secondary influence because they do not have a decisive effect on the underlying conditions of the society that largely determine a country's political trajectory—the character and alignment of the main political forces; the degree of concentration of economic power; the levels of education, wealth, and social mobility; the political traditions, expectations, and values of the citizenry; and the presence or absence of powerful antidemocratic elements. Altering some of those underlying conditions is one purpose for which economic aid and reconstruction resources have been used, as we will see in Chapter 6. 76

Carothers, Aiding Democracy Abroad, 341.

6 Economic Reconstruction and Development

Public security and the rule of law, a well-functioning civil administration, and effective political institutions are important not only for democratic self-government but also in relation to economic reconstruction and development. Where organized crime, bureaucratic predation, cronyism, or fraud are the norm, and where domestic institutions are unable to curb these tendencies, private investment is unlikely to be attracted to a region. In Bosnia and Herzegovina (BiH), these factors, together with high taxes, cumbersome regulations, and barriers to inter-entity trade, have discouraged inward capital flows.1 In 1999, for instance, net foreign direct investment in BiH was a mere $90 million, compared with $1.4 billion in neighbouring Croatia.2 Indeed, virtually all economic growth in BiH since the end of the war is attributable to donor aid ($5.1 billion for the four-year period beginning in 1996). Without this external assistance, the US Agency for International Development (USAID) estimates, BiH would not 1

International Crisis Group, 'Why Will No One Invest in Bosnia and Herzegovina?' ICG Report No. 64, 21 April 1999. In its December 1998 economic newsletter the OHR notes that in a recent study of twenty-seven transition economies, BiH was 'perceived to rank among the most unstable and badly-managed countries of the transition world. This helps to explain why BiH has received almost no foreign investment to date.' Office of the High Representative, Economic Task Force Secretariat, Economic Newsletter, 1/10 (December 1998), available at www.ohr.int/ohr-dept/econ/newsletter/ archive.asp. 2 European Bank for Reconstruction and Development, 'Bosnia and Herzegovina: Investment Profile 2001' (London: EBRD, 2001), 7; European Bank for Reconstruction and Development, 'Croatia: Investment Profile 2001' (London: EBRD, 2001), 5.

136 Economic Reconstruction and Development have exhibited annual double-digit growth rates between 1996 and 1999 but, rather, negative 1 per cent growth.3 If public order, a well-functioning civil administration, and effective political institutions are important for economic reconstruction and development, so is economic regeneration critical for the establishment of sustainable peace in the aftermath of violent conflict. Economic deprivation can be a source of civil strife, especially in societies where economic disparities coincide with ethnic, religious, tribal, or other kinds of social differentiation.4 Where these disparities have generated frustration severe enough to have led to civil war, it is vital to take measures in the immediate post-war environment to promote economic development that can improve the general welfare and thus weaken the economic foundations of political violence. Economic revival is also critical to create broad support locally for international peacebuilding efforts; it offers tangible benefits that can help engender confidence in the process. And where the establishment of domestic governmental bodies is a part of that process, economic revival is also important to generate the revenue necessary to finance these embryonic institutions. In the context of international administration, economic reconstruction and development comprise several distinct challenges. The term 'reconstruction', in fact, is something of a misnomer. For international actors will not be seeking necessarily to restore what existed before the war's devastation—in many cases an inefficient, statist system—but, rather, to transform the economy by privatizing state- or 'socially owned enterprises (SOEs)',5 building strong 3

USAID, 'Payment Bureaus in Bosnia and Herzegovina: Obstacles to Development and a Strategy for Orderly Transformation' (Sarajevo: USAID, 1999) cited in International Crisis Group, 'Why Will No One Invest in Bosnia and Herzegovina?', 6 (fn. 17). 4 There is considerable scholarship on the economic dimensions of civil war. See, for instance, Ted R. Gurr, Why Men Rebel (Princeton, NJ: Princeton University Press, 1970); Mats Berdal and David M. Malone (eds.), Greed and Grievance: Economic Agendas in Civil Wars (Boulder, CO: Lynne Rienner, 2000); Frances Stewart, 'Crisis Prevention: Tackling Horizontal Inequalities', Queen Elizabeth House Working Paper No. 33 (Oxford: Queen Elizabeth House, 2000); Susan L. Woodward, 'Economic Priorities for Successful Peace Implementation', in Stephen John Stedman, Donald Rothchild, and Elizabeth M. Cousens (eds.), Ending Civil Wars: The Implementation of Peace Agreements (Boulder, CO: Lynne Rienner, 2002), 183-214; and Michael Pugh and Neil Cooper, War Economies in a Regional Context: Challenges of Transformation (Boulder, CO: Lynne Rienner, 2004). 5 Socially owned enterprises (SOEs) were a unique feature of Yugoslav-style socialism. In contrast to state-owned enterprises, SOEs belonged to the public, which entrusted their management to those who were employed in these firms.

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but not predatory public sector institutions, eliminating barriers to trade, and establishing investment-friendly tax regimes. The challenge for international administrators is thus often a triple one: physical reconstruction, economic development, and structural transformation (transition to a market economy), each with its own conceptual framework and approach.6 The challenge is compounded by the fact that the target territories, often poor areas to begin with, will likely have experienced a sharp deterioration of living standards as a result of the war.7 Overcoming this triple challenge requires a degree of coordination among external parties that can be difficult to achieve because of the inherent autonomy of the key actors involved: donor states, regional and international aid agencies, and development banks. These parties may be motivated by a variety of interests—not all of them mutually compatible—and constrained by their own norms and operating procedures. For instance, the World Bank's Articles of Agreement place strictures on activities that may be construed as political in nature, which reconstruction, development, and structural transformation certainly can be in the context of an international administration.8 Yet coordination is necessary for reasons of effectiveness—to ensure that external parties are not at cross purposes—and for reasons of efficiency, particularly in the case of conflict regions such as the Balkans, where several territories are contending with similar and interconnected challenges. Early Challenges In the face of often very extensive war-induced damage and destruction, the most immediate economic challenge that transitional administrators (TAs) must confront is physical reconstruction: the rebuilding of homes; the restoration of electricity, water, heat, and other public services; repair of telecommunications; and the rebuilding 6 For instance, the degree of state interference in the economy that international financial institutions will tolerate may be higher from a developmental standpoint than from a structural adjustment one. 7 Frances Stewart and Valpy FitzGerald, 'Introduction: Assessing the Economic Costs of War', in Frances Stewart and Valpy FitzGerald (eds.), War and Underdevelopment, vol. 1 (Oxford: Oxford University Press, 2001). 8 Art. 4, Section 10 of the Articles of Agreement states: "The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions ...'.

138 Economic Reconstruction and Development and de-mining of roads, bridges, railway lines, and airports. When one considers that in East Timor, 95 per cent of all commercial/retail space in the capital city was stripped and burned, every bank destroyed, and all telecommunication lines outside the capital damaged beyond use—and this is just a partial balance sheet for the business sector alone—the magnitude of the challenge and the urgency of the international response become very clear.9 The priority given to physical reconstruction is reflected in donor aid plans. Of the estimated $5.1 billion external financing requirement for BiH's four-year recovery programme, some $3.2 billion, or 61 per cent of the total pledged, was earmarked for physical reconstruction.10 By contrast, international pledges of $59.1 million amounted to only 5 per cent of the UN's total estimated costs of $1.2 billion to repair war damage in Eastern Slavonia—a reflection both of the higher priority that donors attached to BiH and their disapproval of the Tudjman government's performance in the areas of human rights and democratic governance.11 Of course, pledges are one thing; the actual commitment of funds is another: donors do not always make good on their pledges or are slow to provide the actual funds.12 These difficulties notwithstanding, international administrations have been broadly successful in their rehabilitation efforts. Donors and multilateral organizations have considerable experience with physical reconstruction in part because of the knowledge gained from the provision of disaster relief. This experience, coupled with the existence of established mechanisms and procedures to deal with complex emergencies and the conduct of early needs assessments, has made it possible for territorial administrators to satisfy the most pressing reconstruction requirements relatively quickly. (Local inhabitants sometimes deserve credit for the success as well. For every house rehabilitated or rebuilt in Kosovo with donor assistance by the end 9 Figures from the World Bank's Joint Assessment Mission (JAM): 'East Timor: Building a Nation: A Framework for Reconstruction and Development', November 1999, Annex I, available at www.worldbank.org/html/extdr/ offrep/eap/etimor/donorsmtg99/dtcj ammacroecon.pdf. 10 Elizabeth M. Cousens and Charles K. Cater, Toward Peace in Bosnia: Implementing the Dayton Accords (Boulder, CO: Lynne Rienner, 2001), 88. The pledges were made in the period between December 1995 and May 1999. 11 Report of the Secretary-General on the Situation in Croatia, UN Doc S/l997/487,23 June 1997, para. 18. The pledges were made in the period between January 1996 and June 1997. The figure also includes the estimated costs of de-mining. 12 World Bank, Tost-Conflict Reconstruction: The Role of the World Bank' (Washington, DC: World Bank, 1998), 21.

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of 2002, for example, another house was rebuilt with private money.)13 International organizations, however, can sometimes be slow in disbursing funds and materials owing to cumbersome procurement procedures and, in some instances, the remote location of the operation, as was the case with the UN Transitional Administration in East Timor (UNTAET).14 Where the transitional authorities have fallen short of success, however, it has been for one of several reasons. In some cases— for instance, Kosovo's energy sector and, specifically, the Kosovo Electrical Company (KEK)—the physical plant was so dilapidated before the war that a comprehensive overhaul, rather than rehabilitation, is what has been needed. Compounding the problem in this particular case has been a lack of both local and international management expertise, corruption (the theft of 4.5 million euros of international aid by a UN official), and unanticipated technical problems, with the result that more than four years after the establishment of the UN Interim Administration Mission in Kosovo (UNMIK), KEK was losing approximately one-third of its generated electricity in the grid and Kosovo was still experiencing frequent power cuts.15 Another reason for the lack of success has been political obstructionism. In Mostar, for instance, Bosniacs and Croats alike have opposed reconstruction efforts that would have also had the effect of integrating the divided city. In 1996, the Bosniac Party of Democratic Action (SDA) refused a European Union offer of 12 million German marks to rehabilitate the city's three power plants (two of them Bosniac-controlled) as a unified system, while in 2000 Bosnian Croats sought to obstruct implementation of an agreement to rehabilitate and integrate the city's divided water and sewage systems.16 Inter-entity integration—of 13

'Kosovo Facts', EU Mission in Kosovo fact sheet (mimeo), October/ November 2003. 14 International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 4 (East Timor), para. 138. 15 Mario Holzner, 'Kosovo: A Protectorate's Economy', The Vienna Institute Monthly Report, No. 1 (January 2003), 13; International Policy Institute, A Review of Peace Operations, ch. 3 (Kosovo), paras 166-8. 16 International Crisis Group, 'Reunifying Mostar: Opportunities for Progress', ICG Balkans Report No. 90, 19 April 2000, 52, 54. Four years on, the division of Mostar would continue to dog the transitional administration, prompting Paddy Ashdown in January 2004 to redouble efforts to reunify the city. See 'High Representative Issues Temporary Decision on Mostar', Office of the High Representative and EU Special Representative Press Release, 9 January 2004, available at www.ohr.int/ohr-dept/presso/pressr.

140 Economic Reconstruction and Development electricity, railways, and telecommunication systems—has also been hindered largely for political reasons, adding considerable expense to the cost of doing business in BiH.17 Aid conditionality—the use of financial assistance to exert leverage on recipients to bring about policy change—can sometimes be an effective means of gaining the cooperation of local parties. For instance, the US government's decision, in 1997, to block World Bank and International Monetary Fund (IMF) loans to Croatia because of the latter's failure to cooperate with the Hague tribunal, induced the Tudjman government to surrender ten individuals indicted for crimes during the war in BiH.18 And in 1998, Serbian authorities in Prijedor—the site of some of the worst atrocities during the Bosnian war—began to facilitate the return of Bosniac refugees in exchange for anticipated international assistance.19 To be effective, however, aid conditionality requires coordination among all major donors, which has sometimes been difficult to achieve. In the case of Mostar's hydroelectric plants, for instance, the European Union made its offer of assistance conditional on cooperation between the Croats and the Bosniacs but the World Bank—ill-disposed towards political conditionality for the reasons noted above—ignored the European Union's efforts and offered the Bosniac authorities assistance for the reconstruction of a hydroelectric plant, prompting the European Union to abandon its policy.20 Aid conditionality is also less likely to be effective where alternative sources of assistance may be available. The Bosnian Croats enjoyed the support of the Tudjman regime and for a period of time were thus able to resist Western financial pressures. Yet although it may sometimes be useful, aid conditionality, like sanctions, can be a blunt and even counterproductive instrument—to the extent of inhibiting economic regeneration. International donors withheld support from Republika Srpska (RS) in the first few years after Dayton because of the entity's lack of cooperation in implementing the peace agreement. But partly as a result, unemployment in 1997 was 17

Cousens and Cater, Toward Peace in Bosnia, 90. James K. Boyce, Investing in Peace: Aid and Conditionality after Civil Wars, Adelphi Paper No. 351 (Oxford: Oxford University Press/International Institute for Strategic Studies, 2002), 10. 19 Nicola Dahrendorf and Hrair Balian, 'The Limits and Scope for the Use of Development Assistance Incentives and Disincentives for Influencing Conflict Situations. Case Study: Bosnia and Herzegovina' (Paris: Organization for Economic Cooperation and Development, 1999), 38-9. 20 European Stability Initiative, 'Reshaping International Priorities in Bosnia and Herzegovina. Part II: International Power in Bosnia', 30 March 2000, 46. 18

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80 per cent higher in RS than in the Federation (as high as 90 per cent in RS against 50 per cent for the Federation),21 and, as we saw in Chapter 3, the lack of job opportunities can be a serious impediment to refugee return.

Further Challenges Physical reconstruction is closely linked to economic development; the former provides the infrastructure without which the latter may be seriously constrained. Kosovo's electricity plant is a prime example: as long as it remains inadequate, businesses will not have a reliable source of electricity and economic activity will suffer as a consequence. Economic development, as indicated earlier, may also require fundamental structural change in cases, especially, where state control of the economy has been an obstacle to growth. However, while market-oriented restructuring can act as a spur to development, as it has in many former socialist countries, some of the neo-liberal economic measures that such restructuring entails (for instance, counter-inflationary monetarism and de-regulation) may not always be well suited to the needs of a country recovering from war. Market-based approaches, therefore, must not be adopted uncritically and an effort must be made to mitigate the adverse social effects associated with them—notably increased poverty, unemployment, and inequality—that can fuel further unrest?2 While it is necessary to initiate economic development strategies early—indeed, as early as the humanitarian assistance/reconstruction phase—many of these efforts can only be expected to yield results in the mid- to longer term. As a consequence, there is growing recognition among international policy-makers of the importance of taking measures that will impact positively on the quality of life of the local population in the immediate post-conflict period. Local inhabitants who witness the massive infusion of international funds, personnel, and equipment will come to expect rapid and tangible improvements in their lives and may even resent the international presence if such improvements are not forthcoming. 'Quick impact projects', as they are sometimes called, can if properly conceived make a demonstrable 21

Cousens and Cater, Toward Peace in Bosnia, 92. For a critique of neo-liberal assumptions as they relate to the post-war reconstruction and economic development of BiH, see Michael Pugh, 'Postwar Political Economy in Bosnia and Herzegovina: The Spoils of Peace', Global Governance, 8/4 (2002), 467-82. 22

142 Economic Reconstruction and Development difference in the quality of life, jump start the economy, and also help to establish the credibility of an international organization. Of course aid alone cannot serve as the basis for an economy; aid can, in fact, create dangerous dependencies.23 International officials thus need to concern themselves early in an interim administration with laying the foundations for economic sustainability. This requires the establishment or strengthening of key economic institutions, on the one hand, and the adoption or promotion of key macroeconomic policies, on the other. Where the basic economic institutions do not exist already—as they did not in Kosovo and East Timor—they will need to be created from scratch. These are likely to include a central fiscal authority that will perform the essential functions of a finance ministry; a banking authority to regulate currency and to ensure proper supervision of the banking sector; a central payments office to provide a payments system; and a customs administration to collect revenues at the border, which in very poor economies may be the only source of domestic revenue at first. (Institution-building may also involve institution-dismantling, as the High Representative (HR) carried out with respect to the corrupt and inefficient payment bureaux in BiH, which each national group controlled for its own purposes.)25 To ensure that these macroeconomic functions are performed competently and in an impartial manner, they may need to be conducted by international officials initially and then transferred to domestic authorities as the latter acquire the requisite capacity.26 23

Pugh and Cooper, War Economies in a Regional Context, 161. European Commission and World Bank, 'Toward Stability and Prosperity: A Program for Reconstruction and Recovery in Kosovo', 3 November 1999, 15-16; Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2000/53,26 January 2000, para. 55. 25 The dismantling of the payment bureaux has been one of the most ambitious reform projects for the international administration of BiH, requiring the adoption (or imposition) of more than thirty domestic laws between 1999 and 2000. See Dominik Zaum, 'The Sovereignty Paradox: Norms and the Politics of StateBuilding by the International Community' (D.Phil thesis, International Relations, University of Oxford, 2005), ch. 3. 26 In BiH, for instance, the Bosnian Constitution stipulates that the first Governor of the Central Bank, appointed by the IMF for a six-year term, cannot be a citizen of BiH or any neighbouring state but thereafter will be appointed by the all-Bosnian Governing Board from among its members. Constitution of Bosnia and Herzegovina, Art. VII(2)(3). The first Central Bank Governor, Peter Nicholl, a New Zealander, was appointed until October 2003. However, Nicholl subsequently obtained Bosnian citizenship and in May 2003 was reappointed to the Governing Board, which in turn re-elected him as Central Bank Governor. 24

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With respect to macroeconomic policies, two measures in particular require prompt attention: currency regulation and fiscal stabilization. These are not entirely novel challenges for international authorities; the IMF and the World Bank have considerable experience in both areas already. Yet never in recent times have international authorities had surrogate sovereign responsibility for these matters—not simply advising the central bank or the central fiscal authority but actually heading up these bodies. (In an earlier era, foreign nationals sometimes exercised extensive oversight of other governments' finances, as with the multinational management of the German Reichsbank to help ensure reparations and loan repayments after the First World War and the European powers'—mainly British and French—control of both the Egyptian Public Debt Commission, established in 1876, and the Ottoman Public Debt Administration, formed in 1881.)27 War-ravaged territories need a stable and common currency to promote economic revival. In BiH, where three different currencies were initially in circulation, the HR took the decision to establish a new currency, the konvertible marka (KM), pegged to the German mark, while in Kosovo UNMIK adopted the mark outright.28 (The euro was substituted for the mark in March 2002—placing Kosovo in the 'Eurozone' even before many EU member states.) UNMIK's replacement of the Yugoslav dinar with the mark was a particularly contentious decision in view of the fact that UN Security Council Resolution 1244 affirms the territorial integrity of Yugoslavia, of which Kosovo is a part, and the adoption of the mark was seen by many—domestically and internationally—as paving the way for Kosovo's independence. However, retention of the dinar would have made Kosovo hostage both to Belgrade's economic policies and to its economic vicissitudes. (Similar concerns did not apply to Eastern Slavonia, where the UN Transitional Administration for Eastern 27

The 1924 Dawes Plan provided for the establishment of a General Board for the Reichsbank, half of whose members were foreign nationals. See William C. McNeil, American Money and the Weimar Republic (New York: Columbia University Press, 1986), 27-30; and John W. Wheeler-Bennett and Hugh Latimer, Information on the Reparation Settlement (London: Allen & Unwin, 1930), 59. On the various supervisory powers of foreign nationals in Egypt and the Ottoman empire, see Roger Owen, The Middle East in the World Economy, 1800-1914 (London: Methuen, 1987), 133-4,192-8. 28 Office of the High Representative, Decision Imposing the Design of Bank Notes, 27 March 1998; UNMIK Administrative Direction No. 1999/2, Implementing UNMIK Regulation No. 1999/4 of 2 September 1999 on the Currency Permitted to be Used in Kosovo, 4 October 1999.

144 Economic Reconstruction and Development Slavonia (UNTAES) introduced the Croatian kuna, because the clear aim of the operation was reintegration of the territory with Croatia.)29 In East Timor, the United Nations also adopted a strong currency, the US dollar, as the official currency in January 2000 and as the sole legal currency eighteen months later.30 Strong currencies contribute to price stability but without their own currencies international authorities cannot have any real monetary policy and, in particular, cannot use devaluation to support the export sector. The viability of an economy depends also on the ability to fashion a fiscal policy that is sustainable—in other words, to establish a revenue stream that is adequate to meet the costs of the actual or emerging domestic government. Initially, budgetary support will need to come from donors. But donors are not always willing to finance recurrent budget costs. As Susan Woodward observes, the World Bank's 1996-2000 Priority Reconstruction and Recovery Program for BiH represented the first time that the importance of support for recurrent costs was taken into account.31 A related problem is that in the case of UN operations, even where funding of recurrent costs is agreed, disbursement may have to wait until voluntary contributions are secured and a functioning central fiscal authority is in place, all of which can lead to significant delays, as it did in East Timor. As noted in Chapter 4, resources were available immediately from the UN's assessed contributions budget to meet the costs of running UNTAET ($592 million in 2000-01 alone) but these monies could not be used to keep local schools, hospitals, ports, and airports running.32 One solution would be to authorize the TA to draw limitedly on the mission budget to support critical proto-governmental services until the trust funds and fiscal bodies are in place. The longer term aim, however, must be to establish an efficient and effective structure of public spending, on the one hand, and sustainable sources of income, on the other. In Kosovo, where UNMIK has had full authority over the budget, international officials have been able to ensure that public sector expenditures are adequately financed and 29

Report of the Secretary-General on the Situation in Croatia, UN Doc S/l 997/487,23 June 1997, para. 19. 30 UNTAET Regulation No. 2000/7, On the Establishment of a Legal Tender for East Timor, 22 January 2000; UNTAET Regulation No. 2001/14, On the Official Currency and Legal Tender of East Timor, 20 July 2001. 31 Woodward, 'Economic Priorities for Successful Peace Implementation', 204. 32 UNTAET budget figure cited in 'Whose Future Is It Anyway?' Far Eastern Economic Review, 9 November 2000. In contrast, East Timor's first consolidated budget was only $59 million.

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increasingly so by domestic sources (notably customs and excise fees, profit and wage taxes, VAT, and user fees). In 2003, 94 per cent of the Kosovo General Budget was met by local revenue as against 21 per cent in 2000, although the General Budget represents only a small fraction of total public sector expenditure, with additional expenditure being made by UNMIK, the Kosovo Force (KFOR), donors, and nongovernmental organizations (NGOs).33 In Kosovo's case, however, reliance on customs and tariffs for fiscal purposes means reliance on continued imports and an unsustainable trade deficit, which in 2002 accounted for nearly half of the territory's gross domestic product (GDP)—the highest in the Balkans.34 In BiH, where the HR has had more limited authority over the various domestic budgets, public expenditure has been high relative to both the regional average (56 per cent of GDP against 40 per cent for the region in 2002) and to public revenues (5.6 billion KM against 6.1 billion in expenditures in 2002).35 Public expenditure has been high largely because of the high cost of public administration, in particular wage costs. When in November 2003, therefore, RS announced its decision to raise public sector wages and pensions by 20 per cent, the World Bank responded by threatening not to release a $124 million loan to BiH. But the HR, too, bears some responsibility for spiralling public sector wage costs: he has sought to strengthen the central government by creating new state institutions (notably the State Border Service and State Court) and by increasing the wages of judges and other civil servants to make them less susceptible to bribery.36 Although it might seem that a population struggling to recover from the ravages of war ought to be spared the burden of paying taxes, at least initially, it is in fact important to begin to develop a personal and business taxation system very soon in the recovery period. Not only is it necessary to reduce the reliance on border taxes (which, like protectionist measures, inhibit the development of competitive industry and make the budget dependent on imports) but it is also vital that the local population begins to assume fiscal responsibility for its own affairs as no state or territory can survive indefinitely on donor contributions. 33

Ministry of Finance and Economy Kosovo, The Kosovo General Government 2003 Budget (Pristina: 2003), table 8. Additional non-governmental expenditures totalled 2.65 billion euros in 2003 as against 438 million euros for the Kosovo General Budget. 34 Holzner, 'Kosovo: A Protectorate's Economy', 11. 35 European Stability Initiative, 'Governance and Democracy in Bosnia and Herzegovina: Post-Industrial Society and the Authoritarian Temptation' (draft), September 2003,2. Figures are for all Bosnian government and public funds. 56 Ibid, 5.

146 Economic Reconstruction and Development Similarly, it is important to develop an adequate system of user fees for utilities, which too often in international administrations have gone uncollected (at considerable cost to the treasury), thus fostering a sense of entitlement that is difficult to reverse later. In April 2002, more than two years after the establishment of UNTAET, the East Timor Power Service was owed $2.5 million by customers who had failed to pay their bills.37 Similarly, in Kosovo, only half of KEK's delivered electricity was being paid for by its consumers nearly four years after UNMIK had assumed control.38 Naturally taxation creates incentives for tax evasion and the pursuit of commercial activities within the 'grey economy', which further underscores the need for effective revenue collection and enforcement mechanisms.39 The design of the taxation system is relevant, too. If too complicated or expensive to operate, it will be difficult to enforce. Of course a balanced budget can also be achieved by shrinking public sector expenditure but as additional transitional governmental functions are devolved to domestic authorities and as donor contributions subside, the public sector will need to expand rather than contract. The challenge thus becomes that of identifying new sources of revenue. The main potential source for revenue—here as with developing countries—lies with growth of the domestic economy.40 Domestic economic growth is also key to job creation. But in many cases there are significant obstacles to growth, which TAs have found difficult to overcome.

Obstacles to Growth Unlike Germany and Japan, which were advanced economic states before the Second World War, none of the war-torn territories 37

'Ministers Approve New Measure on Electricity Charges', UNTAET Daily Briefing, 2 April 2002, available at www.un.org/peace/etimor/DB/ db020402.htm. One reason why domestic authorities are sometimes reluctant to enforce collection is because it serves as a form of transfer payment to their constituents, some of whom may be unable to pay. 38 Holzner, 'Kosovo: A Protectorate's Economy', 13. 39 International Crisis Group, 'Bosnia's Precarious Economy: Still Not Open for Business', ICG Balkans Report No. 115, 7 August 2001. 40 East Timor, although among the poorest countries in Asia, has the advantage of offshore oil and gas reserves, which are expected to yield billions of dollars in royalties over their life (the precise amount will depend on the outcome of boundary disputes with Australia). See *E Timorese Accuse Australia of Delay in Boundary Talks', Financial Times, 27 November 2003.

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under international administration in the present period were previously prosperous, with the partial exception of Eastern Slavonia, whose oil, fertile agricultural land, and industry (rubber and textiles) made it the second richest region in Yugoslavia. But even Eastern Slavonia has suffered many of the same problems that have befallen the other war-torn economies: the loss of domestic markets, lack of competitiveness, and uncertain property rights that discourage foreign investment, such that by the start of the UNTAES operation there was little economic activity beyond subsistence farming and limited exploitation of the local oil fields. Indeed, in some ways Eastern Slavonia's plight has been worse because neither donors nor the Croatian government provided significant funds for economic reconstruction and development of the region. Some of the obstacles to growth have been at least partially of the international community's own making. The Dayton-designed Bosnian Constitution, for instance, has created impediments to development by establishing multiple levels of government and bureaucracy. Foreign investors have had to deal with up to five different levels of bureaucracy to obtain the requisite licences to set up a company: state, entity, canton, city, and municipality. As a result, in 2001 it took, on average, ninety-five days to register a company in the Federation as opposed to just two or three days in the Czech Republic. The fact that BiH, a small country, is divided into two entities that do not form a single market—that have different laws, tax codes, and administrative procedures—also prevents firms from operating easily throughout the territory, further discouraging private foreign investment. Indeed, a 2000 report by the Bosnian Academy of Sciences and Arts on the country's international economic competitiveness ranked BiH among the least appealing countries, alongside Russia and Ukraine, as far as foreign investors were concerned.41 Partly in response to these problems, Paddy Ashdown launched the 'Bulldozer Initiative' in November 2002 with the aim of dismantling fifty barriers to business growth and job creation within 150 days. (The initiative was followed by Bulldozer Phase II, launched in June 2003.) One noteworthy feature of the initiative is that the reforms were all proposed by local businesspeople, based on the bureaucratic obstacles that they encountered, underlining the importance of local participation in the reform process and in planning more generally. While the initiative has certainly helped to improve the business climate, it has avoided 41

International Crisis Group, 'Bosnia's Precarious Economy', 8.

148 Economic Reconstruction and Development major changes—such as an overhaul of the tax system—that could not be achieved quickly.42 The greatest impediments to growth have been of longer standing. Indonesia and the former Yugoslavia were both in deep economic crisis before the violence that led to international intervention in each case, and many of the conflict zones that were to come under international administration in these two regions had for many years been economically distressed. In Kosovo, GDP contracted by 50 per cent and unemployment rose to 70 per cent in the period between 1990 and 1995, while East Timor—one of the poorest regions in Asia—relied on Indonesia for approximately 85 per cent of its recurrent and capital expenditure.43 Economic crisis in these cases was indicative of structural weaknesses that reconstruction aid alone has not been able to correct. In BiH, as in much of the rest of Yugoslavia, the socialist economy maintained artificially high levels of employment in publicly or socially owned enterprises (SOEs) that were poor performers before the war— indeed, they were often money losers—but nonetheless had markets for their goods in Yugoslavia and abroad and were otherwise sustained by infusions of credit or inter-firm transfers. War brought about a severe contraction to the Bosnian economy, with firms in the industrial sector in 1996 operating at just 10-30 per cent of their pre-war capacity—the result not only of extensive physical destruction but also the disruption of former trade links and the collapse of Yugoslav industries of which Bosnian firms were a part.44 Under these circumstances, privatization is not necessarily the solution, although it is very often touted as a panacea domestically and internationally. Many of the relevant firms are heavily indebted, their equipment technically obsolete or stripped, and their workers inadequately trained for a competitive market.45 Of the sixty-six large-scale firms (with 42

'Bosnia's Red Tape Bulldozer', International Herald Tribune, 26 June 2003. European Commission and World Bank, 'Toward Stability and Prosperity', 6; World Bank, 'Memorandum of the President of the International Development Association to the Executive Directors on a Transitional Support Strategy of the World Bank Group for East Timor', Report No. 21184-TP, 3 November 2000, 9. 44 World Bank, 'Bosnia and Herzegovina: 1996-1998 Lessons and Accomplishments: Review of the Priority Reconstruction and Recovery Program and Looking Ahead Towards Sustainable Economic Development', report prepared for the May 1999 Donors Conference (undated), 13. 4 ^ As Special Representative of the Secretary-General (SRSG) Michael Steiner explained in a public lecture in April 2002: 'We need to face reality and call a spade a spade. Most of Kosovo's socially owned enterprises are dinosaurs.' 43

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400+ workers) put up for tender in RS between 1999 and 2003, only five attracted a serious buyer willing to pay cash for the company and to invest funds in production.46 Another obstacle to privatization—and a structural impediment to economic reform generally—are uncertain property rights. In Kosovo at the start of the UN mission, there were an estimated 350 SOEs with over 60,000 employees on their books (although as many as half of these workers were on unpaid leave).47 As these enterprises were not owned by the state, unlike in other centrally planned economies, the question of who actually owns them and whether the sale of them could at some later point be challenged has inhibited private investors. It has also inhibited the UN's Office of Legal Affairs, which was concerned initially that privatization could prejudice a determination about Kosovo's final status.48 Indeed challenges by Belgrade prompted the Kosovo Trust Agency (KTA), which is responsible for the administration of the SOEs, to suspend the privatization process in October 2003, by which time twenty-four enterprises had been tendered.49 The Serbian authorities objected to the process, arguing that UNMIK ignored ownership and credit claims by companies in Serbia reflecting earlier sales of assets and, moreover, that the land on which Kosovo SOEs sat had been nationalized after the Second World War and should be returned to their original owners, who in most cases were Serbs.50 While these challenges did not put a halt to the privatization process—the KTA resumed the process in December— they are symptomatic of the kinds of issues that have deterred private investors.51 An alternative approach, 'commercialization'— the issuing of long-term leases—also failed to attract large numbers of private investors, and many of the investors that it did attract showed Text of SRSG Michael Steiner's address to the University of Pristina, UNMIK Press Release UNMIK/PR718,18 April 2002, available at www.unmikonline.org/ press/2002/pressr/pr718.htm. 46 European Stability Initiative, 'Governance and Democracy in Bosnia and Herzegovina', 23. 47 In addition to SOEs there were fifty-five publicly owned enterprises in Kosovo (as of April 2004), most of them in the water and waste sector. 48 International Crisis Group, 'Kosovo: A Strategy for Economic Development', ICG Balkans Report No. 123,19 December 2001,20-1. 49 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2003/996,15 October 2003, para. 39. 50 Sasha Brubanovic, 'Privatization Halted', Balkan Reconstruction Report, 13 October 2003, available at www.tol.cz. 51 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2004/71,26 January 2004, para. 35.

150 Economic Reconstruction and Development little interest in putting money into assets that they were only renting temporarily.52 In East Timor, a similar problem arose because of competing claims to property—land and other assets—deriving from traditional rights, the era of Portuguese colonization, and the period of Indonesian administration. The problem was compounded by the destruction of public records by Indonesia-backed militias in September 1999. So difficult was it to adjudicate rival claims that the United Nations took the decision to defer the matter to the successor East Timorese state government. And yet, as the Secretary-General observed in his 17 January 2002 report to the Security Council, 'The single greatest obstacle to secure investment in the country is the lack of a workable long-term Land and Property Code which could accommodate claims dating from the Portuguese and Indonesian administrations in East Timor and traditional property rights.'53 Although state- and socially owned enterprises are regarded by many locally as potential gold mines and privatization, therefore, is thought to be a cure-all, the fact that many if not most of these enterprises will have no future prospect means that they will probably have to be liquidated and the assets best used for new investment. Indeed, privatization is very likely to contribute to unemployment in the first instance, as restructuring or liquidation results in further job losses. Far more important than privatization, for the purposes of generating economic growth and employment, then, is the startup of new enterprises. Kosovo, for instance, has one of the fastest growing populations in Europe, with a birth rate of 21 per 1000 of population.54 Some 200,000 young men and women are expected to enter the labour force, now totalling 1 million people, over the next five years, while only 60,000 workers will retire.55 To absorb these new job seekers and to lower current unemployment, estimated in early 2004 at 50-60 per cent,56 Kosovo will have to create more 52

Dana Eyre and Andreas Wittkowsky, 'The Political Economy of Consolidating Kosovo: Property Rights, Political Conflict and Stability', Friedrich Ebert Stiftung Digitate Bibliothek, May 2002,11, available at http://library.fes.de/ fulltext/id/01351.htm. 53 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2002/80,17 January 2002, para. 52. 54 The Kosovo General Government 2003 Budget, 3. 55 Ministry of Finance and Economy, Macroeconomic Unit, Monthly Macroeconomic Monitor, May 2003. 56 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2004/71,26 January 2004, para. 37.

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than 30,000 new jobs in each of the next five years—a difficult if not impossible task. Job creation can only be achieved through the startup of new enterprises as the public sector does not have the resources to support significant expansion. Yet Kosovo is unable to borrow on the international markets because of its non-sovereign status and access to credit is one of the key requirements for re-starting economic activity in a post-conflict environment. (In BiH, donor-funded lines of credit to small and medium-sized enterprises resulted in nearly a doubling of exports from the borrowing firms in 1997.)57 Where unemployment is very high, even strong economic growth may be able to generate only a fraction of the new jobs needed. Consideration may need to be given, therefore, to the managed export of labour to regional states, anathema though the notion may be to citizens of those states, where anti-immigration sentiment has been rising in recent years. Not all international territorial administrations have had fully fledged economic and, more specifically, job creation programmes. In Eastern Slavonia, UNTAES was authorized to assist in the coordination of plans for the development and economic reconstruction of the region. Yet, as Jelena Smoljan observes, *[D]espite the [poor] economic conditions in the UNTAES mandated region, and despite the recognition of the importance of socio-economic development for peacebuilding, the mandate did not address economic issues in a proactive way.'58 Rather, UNTAES sought to ensure the employment of Serbs by negotiating and then overseeing the implementation of various employment guarantees with the Croatian government (guarantees, incidentally, that Croatian citizens elsewhere in the country did not enjoy). In addition, individuals who lacked the qualifications necessary for employment in equivalent Croatian positions were to be offered either new employment or retraining.59 The United Nations would satisfy itself, in May 1998, that 'the Government of 57

World Bank, 'Bosnia and Herzegovina: 1996-1998 Lessons and Accomplishments', 14. 58 Jelena Smoljan, 'Socio-economic Aspects of Peacebuilding: UNTAES and the Organization of Employment in Eastern Slavonia', International Peacekeeping, 10/2 (2003), 32. 59 Ibid., 32-7. The various guarantees are contained in an Affidavit on Employment (16-19 December 1996) in UN Doc S/l 997/62, 22 January 1997, Annex; a letter of intent from the Government of Croatia to the President of the UN Security Council (13 January 1997) in UN Doc S/l997/27,13 January 1997; and an Annex to the Affidavit on Employment (17 February 1997) (restricted), all signed by representatives of the Croatian government.

152 Economic Reconstruction and Development Croatia has, overall, complied with agreements on reintegration in regard to employment guarantees'.60 It was also expected that UN-led efforts to reintegrate the region would generate growth and employment—with, for instance, the re-establishment of trade links with Croatia, the introduction of the kuna, the re-opening of highways, and the restoration of communications. International officials, however, relied chiefly on the Croatian authorities for economic revitalization of the region, as they had to, but Zagreb failed to formulate a strategy for regional economic development, with critics suggesting that the Tudjman government was actively seeking to discourage Serbs from remaining in the region and defenders observing that the war-torn country lacked the resources for a major redevelopment scheme.61 While the United Nations can perhaps be faulted for its failure to include job creation within its mandate, any such programme would have been difficult to pursue without the active support and participation of the government of Croatia, which, at the very least, would have had to provide some indication of its strategic direction for the region. (Under such circumstances, there are inherent limitations even to broad executive authority on the part of a transitional administration.) However, the United Nations perhaps could have done more to protect the viable businesses that were operating in Eastern Slavonia at the time, such as the manufacturing firm Vuteks—once one of Yugoslavia's industrial giants—which later went bankrupt. Economic growth and job creation can also be enhanced through greater access to regional markets for the export of goods—and possibly even labour, as suggested above. Regional organizations have a potentially important role to play in this regard. In the case of the Western Balkan territories, the European Union has adopted an array of economic assistance measures, including the granting of trade preferences and duty-free access of goods, the extension of credit, and the provision of technical assistance, in addition to providing economic stimulus in the form of very large amounts of reconstruction 60

United Nations Police Support Group, 'Interoffice Memorandum: Government of Croatia Compliance of Agreements', 20 May 1998. The report reads: Compliance 'is reflected on [sic] the number of contracts offered and accepted and that the vast majority of workers in public enterprises and institutions continue to enjoy employment rights. Of those who left their places of employment the majority did so on a voluntary basis no longer wishing to remain under Croatian authority. Others entered retirement or accepted early retirement pensions and some were dismissed as a result of non-performance.' 61 Reported in Smoljan, 'Socio-economic Aspects of Peacebuilding', 42-4.

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aid. Following a decade of 'scatter-shot' policy-making, the European Union has also sought to coordinate external reform and reconstruction initiatives with its Stability Pact for South Eastern Europe. And it has encouraged regional cooperation through the establishment of bilateral free-trade agreements among nine regional states. Finally, it has developed a framework for the regulation of relations between the European Union and the Western Balkans with its Stabilization and Association process, including potential accession of these states to the European Union, for which purpose it is providing considerable financial assistance through its Community Assistance for Reconstruction, Development and Stabilisation (CARDS) programme. No comparable regional organizational assistance has been available for East Timor, although significant bilateral support from regional actors, notably Australia and Japan, has been forthcoming. It is difficult to gauge the net effect that these regional policies have had on economic development in the war-torn territories in question. On the one hand, the reduction of trade barriers has contributed to export growth in the Western Balkans. And the reduction of tariffs has reduced the cost of doing business in the region. On the other hand, the Stability Pact has never defined itself in a way that has encouraged major international donors to give it the central place it requires to serve as a coordinator for overall assistance efforts in the region.62 And as of November 2003, BiH had yet to negotiate a Stabilization and Association Agreement with the European Union while Kosovo has been excluded from the process because it is a non-sovereign entity—an additional handicap that arises from its indeterminate status. Most of these initiatives, moreover, have been imposed by the European Union with limited input from local actors, which has also compromised their effectiveness.64 Yet problematic though these initiatives have been, the prospect of eventual integration with the European Union represents unique succour for the Western Balkan territories currently or formerly under international administration. 62

International Crisis Group, 'After Milosevic: A Practical Agenda for Lasting Balkans Peace', ICG Balkans Report No. 108,1 April 2001,239-48. 63 In November 2002 the European Union instead established the Kosovo Stabilisation and Association process Tracking Mechanism (STM) to support Kosovo, through policy advice and guidance, in the adoption of EU-compatible structural reforms. 64 Othon Anastasakis and Vesna Bojicic-Dzelilovic, 'Balkan Regional Cooperation and European Integration' (London: The Hellenic Observatory, London School of Economics and Political Science, July 2002), 26.

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The Darker Side of the Economy War-torn territories can be fertile breeding grounds for organized crime, corruption, and black- and 'grey'-market activities—licit but unregulated and untaxed economic activities. As such, criminality may pose a serious threat to economic recovery as well as to basic security. The roots of these activities run deeper than the anarchic conditions of the post-war environment. War itself creates opportunities, if not imperatives, for criminal economic activity.65 In conflicts of an internal nature, paramilitary and other irregular forces often play an important role doing the 'dirty work' that regular armies cannot always be trusted to perform, especially if they are made up of conscripted soldiers.66 These forces will frequently be rewarded with lucrative smuggling and other black market 'concessions', which armed conflict encourages as governments and rival factions strive to avoid the effects of sanctions, arms embargoes, and other international efforts to contain and manage the conflict. Regular armies, too, may engage in illicit economic activities out of either greed or 'national necessity'. The cessation of hostilities does not necessarily bring an end to criminal economic activity. Paramilitary leaders may not be willing to relinquish their economic spoils readily and, moreover, political elites may find it useful to continue to employ them in the postwar period. While paramilitaries may no longer be able to rely on looting and gun-running to enrich themselves, there are many other peacetime criminal opportunities that they can exploit, notably smuggling, trafficking in women and stolen cars, and tax evasion. Regular soldiers, too, may gravitate towards illicit activities in the absence of legitimate employment opportunities. This criminal 'inertia' is one reason why it is so important for TAs to develop effective demobilization and job creation programmes for armed forces of every kind—although any war criminals among these forces must be delivered to justice, not rewarded with jobs. In only two cases under consideration here—Kosovo and East Timor—did international authorities establish formal programmes for the reintegration of former combatants. UNMIK transformed the Kosovo Liberation Army (KLA) into the Kosovo Protection Corps 65

On the criminalized dimension of the war in BiH, see Peter Andreas, 'The Clandestine Political Economy of War and Peace in Bosnia', International Studies quarterly, 48/1 (2004), 29-51. 66 Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Stanford, CA: Stanford University Press, 1999), 53.

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(KPC), a civilian agency modelled after the French Securite Civile and tasked with providing emergency response and reconstruction services to Kosovo. The KPC, however, made up of 5,000 members (3,000 regular and 2,000 auxiliary), employs just a fraction of the former KLA, some 18,500 of whom applied to join the Corps. The remaining combatants were offered only 'information counselling' and 'referral services' by the International Organization for Migration aimed at identifying income-generating activities for them. In East Timor, UNTAET established the East Timor Defence Force (ETDF), which provided employment for many ex-combatants of Falintil, the East Timor national liberation army. The initiative, however, was something of an afterthought. Although the 4 October 1999 report of the UN Secretary-General mandated UNTAET to create programmes for 'disarmament, demobilization and reintegration', UNTAET was slow to devise a plan and for several months Falintil guerrilla fighters languished in camps, having voluntarily ceded the ground to the UN-mandated International Force in East Timor (INTERFET) when it deployed to East Timor in September 1999. Poor living conditions impelled many fighters to leave the cantonment with Xanana Gusmao, the Falintil Supreme Commander, warning on 23 June 2000 that his still-cantoned forces were 'almost in a state of revolt', their discontent directed largely against UNTAET.68 Nevertheless, it was not until January 2001 that UNTAET, acting on the recommendations of an independent study, established the ETDF, for which it recruited 650 Falintil members. Another 1,300 were accepted into the Falintil Reinsertion Assistance Programme which, somewhat more extensive than the Kosovo programme, provided grants, tools, and training to beneficiaries. Despite the evident importance of reintegration programmes, donors have tended to shy away from supporting them because they can be costly and open-ended.6 In Eastern Slavonia and in BiH, no comparable efforts were made to re-train and re-integrate demobilized soldiers or police, notwithstanding significant demilitarization and down-sizing of armed forces. UNTAES, however, did initiate a very successful weapons buy-back scheme that relied on economic incentives to induce the voluntary surrender of weapons, the United Nations having ruled 67

UNMIK Regulation No. 8, On the Establishment of the Kosovo Protection Corps, 20 September 1999. 68 International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 49. 69 Bruce Cater, "The Political Economy of War and Peace', IP A Seminar Report (New York: International Peace Academy, 2002), 5.

156 Economic Reconstruction and Development out the forceful confiscation of weapons as being too dangerous and, moreover, likely to antagonize the local population.70 Financed and executed by the Croatian government but controlled and monitored by the United Nations, the ten-month programme recovered approximately 10,000 rifles, 7,000 anti-tank rocket launchers, 15,000 grenades, and almost two million rounds of ammunition, thus exceeding the UN's expectations. Not all weapons were eliminated but this was not the aim as Croatian law does not prohibit the possession of certain classes of registered firearms. The weapons buy-back programme did much, however, to decrease the potential for violence. The persistence of armed networks is only one feature of the criminalized post-war economy. Corruption can also be widespread, acting as a significant drag on economic recovery. The cost to the two Bosnian entities of tax evasion and customs fraud alone runs to hundreds of millions of convertible marks each year, while the World Bank in 2001 estimated that bribery accounted for 10 per cent of total Bosnian business expenses.71 Rival national elites who were in control of sectors of the economy during the war, moreover, will often seek to extend that control after the war—either to enrich themselves, to finance the activities of their parties, or for purposes of political patronage—especially 72 in cases of civil wars that do not end in a decisive victory for any side. When in 1998, for instance, the Bosnian Federation parliament sought to privatize SOEs through the distribution of vouchers to their prewar employees, the Croatian Democratic Union (HDZ)-appointed managers of Aluminium Mostar simply ignored the law and refused to distribute shares to some 2,000 non-Croat former workers. (One of the most successful companies in all of BiH and one of the financial mainstays of the HDZ parastate in Herzegovina, Aluminium Mostar was seized by the Croats in 1993, who promptly expelled all non-Croats from the workforce.)73 Aluminium Mostar is just one of numerous cases in which ethnic elites have manipulated the privatization process to maintain their control of strategic assets. 70

For details of the programme, see Derek Boothby, "The UNTAES Experience: Weapons Buy-back in Eastern Slavonia, Baranja and Western Sirmium (Croatia)', BICC Brief 12 (Bonn: Bonn International Center for Conversion, October 1998). 71 Cited in Timothy Donais, 'The Political Economy of Stalemate: Organised Crime, Corruption and Economic Deformation in Post-Dayton Bosnia', Conflict, Security and Development, 3/3 (2003), 365. 72 For an excellent discussion of nationalist entrepreneurialism in post-war BiH, see Pugh, 'Postwar Political Economy in Bosnia and Herzegovina'. 73 International Crisis Group, 'Bosnia's Precarious Economy', 25-6.

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These tendencies, where they are present, can be very difficult to eradicate, precisely because they have performed and may continue to serve 'useful' economic and political functions. International efforts to combat them, as a result, have yielded mixed results. Where local authorities themselves derive benefit from a criminalized economy, directly or indirectly, the incentive to reform will not be very strong. Meanwhile the exercise of international authority—the imposition of legislation or the removal of elected and appointed officials—may not be able to effect the fundamental changes that are required to resolve the problem. Indeed, some international policies—notably privatization and de-regulation—have unwittingly reinforced the very patterns of economic control that international officials seek to disrupt. The efforts of national authorities elsewhere (for instance, in Italy) to combat inveterate organized crime on their own soil may be instructive here, both with respect to the methods employed and the patience required. Ultimately hope may have to reside with citizens who, no longer willing to tolerate such malfeasance at enormous cost to themselves, may begin to demand that their elected officials do more to combat these tendencies.74

74

An encouraging sign, in this regard, is an OSCE poll conducted in BiH in March 2003 that showed that 70 per cent of respondents had little or no confidence in the commitment of their politicians to fight corruption. See OSCE Press Release, 'OSCE Poll Shows Public has No Confidence in BiH Leaders to Fight Corruption', 1 April 2003, available at www.oscebih.org/pressreleases/2003/ 01-04-03-eng.htm. Less encouraging is the fact that similar poll results have been obtained before.

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Part II Critical Issues for International Administration

The challenges that international authorities face in the context of administering war-torn territories highlight certain key issues that can have significant bearing on the quality of international administration and its effectiveness. Among these key issues are: planning for complex operations, balancing international responsibilities for governance against local demands for self-rule, ensuring adequate international accountability, and devising appropriate exit strategies. Not all of these issues, or aspects of them, are unique to transitional administrations; a number of them arise also in relation to peacekeeping operations. But they can be more acute for international administrations if only because the scale of the operations is much greater. Other issues are unique—especially those of a more political nature—and failure to appreciate their special character has created problems for international authorities and has sometimes led to the adoption of strategies ill-suited for achieving stated objectives. It is useful to separate out these critical issues from the more functional analysis of international administration in Part I, even if such a distinction is in certain respects an artificial one. The importance of these issues is reflected in the attention that they have received in the academic and policy literature on conflict management as well as in journalistic coverage of the territorial administrations under discussion in these pages, although broad analysis of these challenges has often been lacking. The interest in these issues is indicative both of the difficulty of effecting change in institutions and state practice as well as of how knotty are some of the normative questions that lie at the heart of these operations. How can an international organization plan for an operation that is predicated on the anticipation of criminal behaviour by one of its member states? Should there be

160 Critical Issues prescribed limits to the exercise of international authority in the context of territorial administrations and, if so, what should those limits be? How can international authorities be more accountable to the local population on whose behalf they govern without, however, jeopardizing the integrity of the operation? How is the transfer of power to the local population to be regulated and the exit of the international authorities achieved in an effective manner? There are no clear-cut and definitive answers to these and related questions but by highlighting them, in the following chapters, one can better appreciate some of the difficulties involved.

7

Planning Operations

Critical though the initial period is for the establishment of an international administration's effectiveness, it is often not until very late that the planning for an operation begins.1 In the case of East Timor, it was clear as early as 5 May 1999, when the Indonesian government yielded to international pressure and agreed to offer the East Timorese a referendum on independence, that the United Nations would have some role to play subsequently in the administration of the territory. Yet almost no planning towards the establishment of a transitional administration was begun until after the referendum had been held on 30 August 1999.2 Moreover, planning was predicated on the assumption of a peaceful outcome of the referendum and a phased transition, either to independence or to autonomy within Indonesia, that would be achieved with the cooperation of the Indonesian authorities and through existing governmental structures. None of this transpired; nor should it have been expected, given the open contempt for democratic norms shown by the Indonesian military and its allied militia.3 1 A notable exception was the United Nations Transitional Assistance Group (UNTAG), which oversaw Namibia's transition to independence. UNTAG was established in 1978 but did not begin operations until 1989 because of South Africa's refusal to allow the mission to deploy. The long delay gave the United Nations more time to plan the mission than is usually the case. See Simon Chesterman, 'East Timor in Transition: From Conflict Prevention to State-Building', Report of the International Peace Academy, May 2001, 7. 2 Author interviews with UNTAET officials, Dili. See also Ian Martin, SelfDetermination in East Timor: The United Nations, the Ballot, and International Intervention (Boulder, CO: Lynne Rienner, 2001), 126. 3 Question of East Timor: Report of the Secretary-General, UN Doc S/l 999/862, 9 August 1999, para. 12.

162 Planning Operations Yet having failed to anticipate alternative scenarios, the United Nations was left largely unprepared for the formidable challenges that it now faced. The difficulties associated with planning are numerous. Given the critical importance of this activity for all aspects of an international administration, these difficulties are deserving of particular attention. Planning matters not only before a territorial administration is initiated but also throughout the course of the operation. Benchmarks that have been established need to be re-evaluated regularly and new objectives set as greater knowledge is gained of local circumstances and as those circumstances evolve. In light of the many third parties engaged in an international administration, moreover, planning needs to ensure that effective coordination is achieved among these different actors. Finally, planning also needs to anticipate and lay the ground for the termination of an administration—a challenge made more difficult when the end state is not clear, as it has not been in either Bosnia and Herzegovina (BiH) or Kosovo.

The Nature of the Problem Military organizations endeavour to plan well in advance for the role their forces will play in an international administration, as in any other context. On the civilian side, by contrast, planning is often conducted very late and thus inadequately. There are several factors that account for this pattern. If a transitional administration emerges as the result of a negotiated settlement—as it did in the cases of Eastern Slavonia and BiH—the relevant third parties may not know the precise parameters within which they will be operating until after the negotiations have been concluded. They may not know what mandate the operation will have, what role the transitional administrator (TA) will play, and what function the various components of the operation (such as the international police) will perform, among numerous other specifications. They may not even know which regional or international organization will be designated the lead organization. The Croatian Serbs, for instance, sought a prominent role for the United Nations in Eastern Slavonia while the Croatian government—much less confident about the capabilities of the United Nations and believing that it had been partial to Serb interests in 1992-95—wished to see a stronger role for the Organization for Security and Co-operation in Europe (OSCE) and the European Union. Similarly, the Serbs preferred a UN peacekeeping force while the

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Croatian government favoured a North Atlantic Treaty Organization (NATO) force.4 An even more problematic situation arose with respect to Kosovo, where it was not clear until a meeting of the G8 foreign ministers on 6 May—just one month before the adoption of UN Security Council Resolution 1244—whether the United Nations or the OSCE would be the lead organization. In this case, the difficulty lay not so much with the parties to the conflict but with the third parties. Key member states had given the UN Secretariat the impression that the OSCE, which had an extensive presence in Kosovo from October 1998 to March 1999 as a result of its Kosovo Verification Mission, would be the lead organization.5 Also, the OSCE had already conducted planning in the areas of civil administration, police, and justice affairs. However, concerned that the challenge was too great for the relatively untested OSCE to handle, Russia and the United States chose instead to assign responsibility for leading the mission to the United Nations, even though the only significant planning that had been done for Kosovo within the UN Secretariat was for the police component.7 Of course military planners, too, may not always know the precise nature of their engagement much before deployment but their organizations are generally oriented towards, if not actually prepared for, many of the tasks that await them.8 Although the precise nature of international engagement often may not be known immediately to civilian planners, certain features 4

United Nations, Department of Peacekeeping Operations, Lessons Learned Unit, The United Nations Transitional Administration for Eastern Slavonia, Baranja and 'Western Sirmium (UNTAES), January 1996-January 1998: Lessons Learned (New York: UN Department of Public Information, 1998), para. 9. 5 The Kosovo Verification Mission was established on 16 October 1998 for the purpose of monitoring compliance with SC Res 1199 (1998), which called for an immediate cessation of hostilities in Kosovo and the withdrawal of Serb and Yugoslav units used for civilian repression from the province. See William G. O'Neill, Kosovo: An Unfinished Peace (Boulder, CO: Lynne Rienner, 2002), 24-9. 6 International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 3 (Kosovo), para. 20. 7 Ibid., para. 21 and fn. 11. 8 Even preparations for the peace following the First World War were greatly underdeveloped. 'What had we to do with peace', wrote Winston Churchill, 'while we did not know whether we should not be destroyed? Who could think of reconstruction while the whole world was being hammered to pieces, or of demobilisation when the sole aim was to hurl every man and every shell into battle?' Cited in Margaret Macmillan, Peacemakers: Six Months that Changed the World (London: John Murray, 2001), 63.

164 Planning Operations of a mission can sometimes be anticipated. In BiH, for instance, the need for a UN police mission was evident from at least the start of the Dayton negotiations in mid-November 1995, even if it was yet to be determined exactly what role such a mission would play (the United States preferring a gendarmerie and the Europeans a monitoring force).9 But while the United Nations was able to dispatch an assessment team to BiH relatively quickly—within ten days of the initialling of the Dayton Accord on 21 November—it could not begin to recruit for the operation until after the adoption of UN Security Council Resolution 1035 on 21 December, which authorized the establishment of the largely supervisory International Police Task Force (IPTF).10 And given the time necessary to recruit qualified police officers from around the world, it would be many months before the IPTF would achieve its full mandated strength.11 Military organizations have an obvious advantage in this regard: they normally have forces in reserve and therefore do not need to recruit for any given operation.12 Organizational culture can also militate against effective planning. The UN Secretariat is not encouraged by its member states to engage in early planning for transitional administrations in part because of the political implications of such actions—which, from the standpoint of a target state, may seem very threatening indeed. One can imagine the outcry if, for instance, it were to be discovered that the United Nations had drawn up plans for the effective occupation of a member state (such as Yugoslavia). Or, with respect to East Timor, it would have meant planning for an eventuality that assumed the bad faith of a member state (Indonesia) on whom the United Nations was counting for an orderly transfer of authority in the event that the East Timorese opted for independence. The problem was not only with the United Nations in this latter case. Some leading third parties indicated their reluctance to 9

Pauline Neville-Jones, 'Dayton, IFOR and Alliance Relations in Bosnia', Survival, 38/4 (1996-97), 52. 10 Michael J. Dziedzic and Andrew Bair, 'Bosnia and the International Police Task Force', in Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg (eds.), Policing the New World Disorder: Peace Operations and Public Security n (Washington, DC: National Defense University, 1997), 272. Ibid. 12 And yet, with respect to NATO's entry into Kosovo, the Defence Committee of the UK House of Commons observed in a 2000 inquiry: 'it is a matter of concern that, after months of waiting for air strikes to force Milosevic into an agreement, when the time came, NATO was still scrambling to gather the requisite number of troops together for its peace implementation force'. House of Commons, Defence Committee, Session 1999-2000,14th Report, Lessons of Kosovo (London: HMSO, 2000), vol. 1, para. 282.

Planning Operations 165 plan for the post-ballot arrangements without the participation of the Indonesian government, which, however, showed no willingness to discuss contingencies in any detail. US State Department officials, for instance, told the UN Department of Political Affairs (DPA) that it would prefer not to undertake any detailed planning until after the results of the referendum were known, even if that meant a loss of precious start-up time.13 Resources for planning are often also limited, which is a further impediment to effectiveness. Member state pressure on the United Nations to reduce its expenditure, for instance, led in late 1998 to the reduction by almost one-third of the head office professional staff within the Department of Peacekeeping Operations (DPKO).14 And yet, within a year DPKO would be tasked with planning two of the biggest operations in its history—Kosovo and East Timor—in addition to its responsibilities for planning and managing several other contemporaneous operations. The consequences were hardly propitious. As a 2003 King's College London study of peace operations observed with respect to planning for the UN Interim Administration Mission in Kosovo (UNMIK): 'Internal capacity was overstretched and, apart from a few exceptional cases, no additional staff were diverted to help the head office team prepare and manage the mission deployment. Strategic planning was not possible in this environment.'15 One key aspect of planning, the staffing of these missions, is particularly challenging for international administrations. Because of the relatively large size of transitional structures—the civil administrative component especially—recruitment of personnel is a mammoth task. And yet a single individual within DPKO was responsible initially for hiring all of the civilian staff for the UN Transitional Administration in East Timor (UNTAET)—and this was not the individual's only responsibility.16 Sergio Vieira de Mello, the TA, thus had to make do with a skeletal Governance and Public Administration component for several months, fuelling frustration on the part of the local population with the international community's failure to make visible 13

International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 15. 14 Ibid., ch. 3 (Kosovo), fn. 9. See also William J. Durch, Victoria K. Holt, Caroline R. Earle, and Moira K. Shanahan, The Brahimi Report and the Future of UN Peace Operations (Washington, DC: The Henry L. Stimson Center, 2003), 52. 15 International Policy Institute, A Review of Peace Operations, ch. 3 (Kosovo), para. 21. 16 Author interview with UNTAET official, Dili. See also International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 165.

166 Planning Operations improvements in their lives, particularly in the districts outside the capital, which received less attention. Although a standard clause in UN contracts allows the UN Secretary-General to send staff wherever he or she wishes, senior qualified personnel are often not directed to serve in these missions and there is little incentive to do so as field experience generally does not enhance one's prospects for promotion. Transitional authorities thus tend to lack people with the skills required to run a country. 'An inadequate number of UN personnel with inadequate means work long hours at fire-fighting and improvising, while trying to uphold the good name of the UN': that is how Vieira de Mello described the situation in East Timor.17 The situation has improved somewhat since the publication in August 2000 of the UN Brahimi Report on the reform of peace operations, with UN 'desk officers' now spending more time in the field.18 Bureaucratic divisions and competition within organizations can also be an impediment to planning. In the case of East Timor, the UN's DPA was tasked with the responsibility for preparing and holding the 'popular consultation' on 30 August 1999 and for implementing the results of the ballot, which, in the event of a vote against autonomy (and thus for independence effectively), would have entailed negotiating with Indonesia on the modalities for the handover of authority to the United Nations, establishing an interim East Timorese representative council, and preparing for the establishment of a UN transitional administration. Yet with the outbreak of violence following the referendum and the deployment of a UN-authorized, Australian-led International Force in East Timor (INTERFET), responsibility for the mission was suddenly transferred to DPKO. Historically there has been little capacity within the United Nations for cross-departmental planning. Where collaboration occurs it is typically ad hoc and highly reliant for its success on personal networks, which, in this instance, were not well established.19 To the contrary, competition between the two departments led to the virtual exclusion of DPA from the planning process and the loss of most of DPA's knowledge base as a consequence. DPA sought to maintain a formal role for itself in the planning, proposing the establishment of an interdepartmental East Timor Task Force, but there was insufficient support for the 17

Sergio Vieira de Mello, 'How Not to Run a Country: Lessons for the UN from Kosovo and East Timor', unpublished manuscript (on file with author). 18 Durch et al., The Brahimi Report and the Future of UN Peace Operations, 51. 19 Report of the Panel on United Nations Peace Operations (the 'Brahimi Report'), UN Doc A/55/505-S/2000/809,21 August 2000, para. 200.

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20

idea. Not only was DPKO thus deprived of a rich repository of knowledge (DPA did, however, provide some staff members to assist DPKO)2 but also its own planning was perforce begun very late: only with the adoption of UN Security Resolution 1264 on 15 September 1999 was the Secretary-General invited to 'plan and prepare for a United Nations Transitional Administration in East Timor, incorporating a United Nations peacekeeping operation'. The problem of bureaucratic divisions is not limited to international organizations. The planning by the United States for the military occupation of post-Saddam Iraq succumbed to many of the same sorts of inter-departmental rivalries, even though the US government had the distinct advantage of being able to act almost entirely on its own and was in a position to draw up contingency plans well in advance of the operation.22 Indeed, arrangements were being made for a change of government in Iraq since the end of the Gulf War in 1991, and as major US military action became more likely those plans became more concrete. The most elaborate post-war plans were developed by the State Department—based on the recommendations of some fifteen working groups created in April 2002 as part of its Future of Iraq Project—but these efforts were largely ignored by the Pentagon, which in January 2003 won a turf battle with State for designation as the lead agency.23 In the end, as a result, Pentagon planning turned out to be hurried and much of it was based on assumptions—such as limited Iraqi resistance and the reliability of local police forces—that proved to be seriously wrong.

Local Input A valuable source of knowledge and experience that is rarely drawn on for planning purposes are the residents themselves. In the case of 20

International Policy Institute, A Review of Peace Operations, ch. 4 (East 21 Timor), para. 21. Author interview with DPKO official, New York. 22 Gerald Baker and Stephen Fidler, 'The Best Laid Plans', Financial Times, 4 August 2003; Anthony H. Cordesman, 'Iraq and Conflict Termination: The Road to Guerrilla War?' (Washington, DC: Center for Strategic and International Studies, 28 July 2003), available at www.csis.org/features/Iraq_ConflictTerm.pdf; and James Fallows, 'Blind into Baghdad', The Atlantic Monthly, JanuaryFebruary 2004, 53-74. 23 National Security Directive 24, signed on 20 January 2003, put the Pentagon in charge of nation-building efforts. See Cordesman, 'Iraq and Conflict Termination', 11.

168 Planning Operations East Timor, the planning process for UNTAET involved no meaningful participation by East Timorese representatives. In mid-October 1999 Xanana Gusmao, President of the National Council of Timorese Resistance (CNRT), forwarded proposals to the United Nations for a mixed East Timorese-UN transitional administration, but these were effectively ignored. Moreover, when the United Nations drew up its own plan, based on the Secretary-General's report of 4 October 1999, little effort was made to explain its logic and rationale to the East Timorese.24 (DPKO did meet with a CNRT representative in New York regularly to brief him but thought that any greater CNRT involvement would not have been appropriate.)25 The structures of the three Balkans operations were also designed with little participation by the local parties, although the local parties were generally consulted and earlier draft peace settlements, negotiated among the parties, did inform certain features of the international administrations in BiH and Kosovo. In the Balkans, however, the parties were not always receptive to the aims of the international authorities, which limited the scope of their contribution. One notable exception to the lack of local participation in planning was the World Bank's East Timor reconstruction programme and its community-based development project, the Community Empowerment Project (CEP). The Bank started to plan for East Timor's reconstruction in early 1999, well before the August crisis, and it included the East Timorese leadership in its planning from an early stage to help identify reconstruction and development priorities after the ballot.2 Inclusion of the East Timorese was thought to be important not only for the purpose of ensuring accurate social and economic analysis but also to be able to produce a coherent plan that all parties could endorse. Although the violence of August/September 1999 necessitated a complete rethinking of the Bank's engagement in the territory, the structures and contacts that it had established enabled 24

Jarat Chopra, "The UN's Kingdom of East Timor', Survival, 42/3 (2000), 32; letter from Chopra to Vieira de Mello, 17 November 1999 (on file with the author); author interviews with UNTAET officials, Dili; Jonathan Steele, 'Nation Building in East Timor', World Policy Journal, 19/2 (2002), 78-9. 25 Author interview with DPKO official, New York. 26 The following discussion draws on Klaus Rohland and Sarah Cliffe, "The East Timor Reconstruction Program: Successes, Problems and Tradeoffs', CPR Working Paper No. 2 (Washington, DC: World Bank, Conflict Prevention and Reconstruction Unit, November 2002). Rohland was the World Bank's Country Director for East Timor during the territory's transition to independence; Cliffe was the Chief of Mission.

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it to achieve a rapid shift in its approach—from development planning to post-conflict reconstruction. 27 The Bank's inclusive approach to planning was reflected in the composition of its Joint Assessment Mission (JAM), which deployed to East Timor in October and November 1999 to identify reconstruction priorities and to estimate costings. The JAM included equal numbers of international and East Timorese participants (twenty-five each), with many East Timorese serving as coordinators and technical specialists. The JAM also included several representatives from the potential financing institutions, including five bilateral donors, the Asian Development Bank, the World Bank, and the European Commission. (A concurrent International Monetary Fund (IMF) mission accompanied the JAM to assess the macroeconomic framework.) The JAM members were organized into eight field teams (each, again, made up of equal numbers of East Timorese and international experts) to deal with matters relating to health, education, agriculture, infrastructure, private sector development, justice, public administration, and macroeconomic issues.2 The public administration and macroeconomic/fiscal teams drew up recommendations for budgets, civil service structures, and other reconstruction needs on the basis of the findings provided by the various sector teams while a coordination team made up of World Bank, East Timorese, and UNAMET representatives monitored the overall process.29 Many decisions that would be taken later—for instance, on the size of the civil service, the source of applicable law, and the programme for recovery in the health sector—were laid out initially by the JAM. And, as we observed in Chapter 4, early and joint planning contributed to UNTAET's success in particular areas of civil administration. A similar approach characterized the World Bank's CEP. The CEP, an initiative pioneered by the World Bank in Indonesia in the 1990s, aimed to foster local ownership of development strategies and, at the same time, to strengthen local democratic decision-making processes in East Timor.30 The basic idea was to provide democratically elected village development councils with small grants to undertake local reconstruction projects that they had identified as representing priority needs. Formed with the assistance of internationally trained facilitators, the village development councils—of which more than 27

28 29 Ibid., 3. Ibid., 3-4. Ibid., 4. The Bank's Village Infrastructure Project and Kecamatan Development Project, both participatory programmes for poverty reduction in Indonesia, were precursors. 30

170 Planning Operations 350 were established—put forward proposals for the use of grants made available to East Timor from the Trust Fund for East Timor (TFET), which the World Bank administered. (The TFET, established in 2000, served to pool donor aid and coordinate the funding of reconstruction and development projects in East Timor.)31 Proposals might be for the repair of a bridge, the reconstruction of a school, or the building of a central market, for instance. The proposals were then deliberated by another democratically elected council at the higher, sub-district level, which facilitated the harmonization of bids. In total there were more than 4,900 council members representing communities throughout the territory. In the first phase of the project, from February 2000, the grants awarded were relatively modest (on average $2,500 per sub-district); in the second phase, from May 2001, they were much larger (approximately $100,000) as it was envisioned that they would be used to support larger projects, including major road construction, water supplies, and economic activities such as savings and loans schemes.32 As of November 2002, the project had funded more than 1,000 projects, including the construction of 39 bridges, 214 kilometres of road, 104 wells, and 131 kilometres of piped water, while also providing employment for more than 34,600 East Timorese.33 Despite CNRT's support for the project, the United Nations at first opposed the initiative or, at least, was uneasy with certain aspects of it. In particular, UNTAET officials did not want elections for development councils, which they feared would be confused with national political elections. And, indeed, UNTAET Regulation 2000/13, which authorized the establishment of the village and sub-district development councils, used the words 'democratic selection' to describe the process—although the World Bank did in fact conduct elections for this purpose.34 UNTAET also objected to strict gender balance on the councils, arguing that it was culturally inappropriate, but then yielded 31 For more information about the TFET, see Trust Fund for East Timor, 'Report of the Trustee and Proposed Work Program for July-December 2003', report prepared for Donors' Council Meeting, Dili, 3 June 2003. 32 Author interviews with World Bank officials, Dili. See also, World Bank, 'Project Appraisal Document on a Proposed Trust Fund Grant in the Amount of US$7.0 Million Equivalent and a Second Grant of US$14.5 Million Equivalent to the United Nations Transitional Administrator in East Timor for a Community Empowerment and Local Governance Project', Report No. 20312 TP, 15 May 2000. 33 Rohland and Cliffe, 'The East Timor Reconstruction Program', 14. 34 Jarat Chopra, 'Building State Failure in East Timor', Development and Change, 33/5 (2002), 993.

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35

under lobbying and pressure from East Timorese women. (In other respects, it bears noting, the United Nations sought to promote women's participation with, for instance, the adoption of a 30 per cent quota for women in public administration and the requirement that at least two nominees proposed for the National Consultative Council (NCC) be women from among the four candidates put forward from each of the thirteen districts and civil society organizations.)36 It has been suggested that the basis for UNTAET's objections to the CEP, in part, may have been the concern among a few international officials that they risked losing control over key aspects of the territorial administration.37 Whatever the reason, the UN position appeared profoundly anti-democratic to the East Timorese. And despite its apparent concern to maintain control of the process, the United Nations seemed reluctant to accept formal responsibility for receipt of the East Timor trust funds to finance the programme, as required by the World Bank. During the negotiations between UNTAET and the Bank regarding the CEP, UN officials pressed for the drafting of a simple memorandum of understanding between the two bodies but the Bank insisted instead on a standard grant agreement, with UNTAET as the designated recipient, thus treating the UN mission as if it were a sovereign authority.38 This was necessary, according to Bank officials, because Bank projects can only be implemented through national government counterpart structures, which at this early stage UNTAET represented. Here, as in other instances, UNTAET found it difficult to perform its dual role as both a UN mission and a proto-government. Bank officials have noted other difficulties in their relationship with the United Nations, arising in part from the handover of responsibility from DPA to DPKO. Whereas the Bank had been working closely with DPA, there was a relative lack of coordination and continuity between the JAM and DPKO/UNTAET, although the Bank was asked to contribute to DPKO's staffing plans of the financial institutions and it briefed the TA, Sergio Vieira de Mello, on the results of the 35

Milena Pires, 'East Timor and the Debate on Quotas', paper presented at workshop hosted by the International Institute for Democracy and Electoral Assistance (IDEA), Jakarta, 25 September 2002, available at www.idea.int/quota/ 36 CS/CS_East_Timor.pdf. Ibid., 2. 37 Author interviews with World Bank officials, Dili; Chopra, "The UN's Kingdom of East Timor', 30-1. 38 Jarat Chopra, 'Introductory Note to UNTAET Regulation 13', International Legal Materials, 39 (2000), 937.

172 Planning Operations JAM immediately upon his arrival in Dili.39 The lack of continuity resulted in the development of East Timor's public administration outside of the JAM's recommendations with respect to both its content and its approach to working with the East Timorese. Of course, the various consultative mechanisms discussed in Chapter 4—first the NCC and then the National Council—provided a useful forum for deliberation and input from the East Timorese but the JAM envisaged fuller East Timorese participation in the planning and administration of these structures.

In-mission Planning The absence of significant in-mission strategic planning, most notably in the area of civil administration, is another of the chronic weaknesses of transitional administrations. In Kosovo, apart from the original 'concept of operations', the first UNMIK strategic planning document was not produced until 5 December 1999, six months after the start of the mission. The second, a working draft issued on 18 March 2000, was so elaborate—'a ceiling-to-floor laundry list', in the words of one UNMIK official—as to make it all but impossible to implement.40 This is a reflection of the 'intra-mission creep' that may occur as a mission, and its constituent parts, assume new areas of responsibility. It also reflects the tendency to become consumed by 'fire-fighting'— focusing on the crises of the moment—and the failure to keep sight of the larger picture. Efforts have been made subsequently to concentrate on a number of critical policy issues, notably with UNMIK's adoption of 'benchmarks' in April 2002, although these should be seen more accurately as a set of international expectations of Kosovo's provisional institutions of self-government.41 A similar process has been under way with respect to BiH, where the Peace Implementation Council (PIC), beginning with the Madrid Council meeting of December 1998, has been elaborating detailed implementation agendas that have helped to focus the efforts of both international authorities and national 39

Rohland and Cliffe, "The East Timor Reconstruction Program', 5. A 1 ' • T» • Author interview, rnstina. 41 The benchmarks are available at www.unmikonline.org/pub/focuskos/ apr02/benchmarks_tablefinal.pdf. They were discussed by the transitional administrator, Michael Steiner, in his appearance before the Security Council on 24 April 2002. See UN Doc S/PV.4518,24 April 2002. The benchmarks became 'Standards for Kosovo' under Steiner's successor, Harri Holkeri. 4D u

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42

governments working in support of them. Yet, extraordinarily, it was not until January 2003—seven years after the establishment of the international administration—that the Office of the High Representative (OHR) devised a Mission Implementation Plan (MIP) to identify the core tasks that the OHR needs to achieve in order to accomplish its mission.43 (In 2000 the UN Mission in Bosnia and Herzegovina (UNMIBH), the UN component of the international administration, developed its own Mandate Implementation Plan for the period from mid-2000 until the termination of the mission on 31 December 2002.)44 To set priorities, however, is not enough. Planning also requires identification of the means and methods of implementation—that is, the formulation of action plans. In Kosovo, this was the function of the Joint Planning Group (JPG) within the TA's office. As Jock Covey, a former deputy TA with UNMIK, explains, 'The UN Secretariat created the JPG to work for UNMIK's leadership to prepare a broad strategy to accomplish mission objectives, integrate UNMIK's component parts, and bring capabilities to bear on the major emerging challenges to the mission. The JPG gave UNMIK a small planning capability that could identify decisions that, in its view, the leadership needed to make if it were to keep the implementation process on track. It was also key to binding the military and civilian efforts together. Valuable though the JPG was, it was dissolved during Hans Haekkerup's tenure as TA in 2001. The Bosnian MIP is deserving of closer examination. It represents a more precise articulation of the OHR's aims in contrast with the vague goal of 'peace implementation' expressed in various UN Security Council resolutions and PIC declarations, even though the latter have sometimes also prescribed very specific reform measures. A fundamental difficulty for the administration of BiH is that it has not always been clear what constitutes an end state for international

42

The PIC agendas are available at the OHR website: www.ohr.int, under 'Peace Implementation Council'. 43 The plan is available at www.ohr.int/ohr-info/ohr-mip/default.asp? content_id=29145. 44 Report of the Secretary-General on the United Nations Mission in Bosnia and Herzegovina, UN Doc S/2000/529, 2 June 2000, para. 34; UNMIBH, 'Mandate Implementation Plan: Action Plan 2002', February 2002 (mimeo). 45 Jock Covey, 'The Custodian of the Peace Process', in Jock Covey, Michael Dziedzic, and Len Hawley (eds.), The Quest for Viable Peace: International Intervention and Strategies for Conflict Transformation (Washington, DC: United States Institute of Peace Press, 2005).

174 Planning Operations engagement in the territory. With the adoption of the MIP it became clear that what the High Representative (HR) seeks to achieve is to ensure that 'Bosnia and Herzegovina is a peaceful, viable state on course to European integration'.^ The core tasks on which the OHR has chosen to concentrate to accomplish that objective are, broadly stated: (1) to entrench the rule of law; (2) to ensure that extreme nationalists, war criminals, and organized criminal networks cannot reverse peace implementation; (3) to reform the economy; (4) to strengthen the capacity of BiH's governing institutions, especially at the state level; (5) to establish state-level civilian command and control over armed forces, reform the security sector, and pave the way for integration into the Euro-Atlantic framework; and (6) to promote the sustainable return of refugees and displaced persons. Each of these tasks, in turn, is supported by a series of programmes (action plans), totalling twenty-one, with each programme identifying a transition point where it can be judged complete or in a position to be handed over to the Bosnian authorities (jointly, in some cases, with another international organization). Planning for such a complex operation as an international administration also requires coordination among the many organizations that may be involved as well as between the headquarters and theatre of any single organization. Ideally coordination should occur at three levels: strategic (among the organizations' secretariats and decision-making bodies), operational (among the various theatre-level headquarters), and tactical (among the components in the field).47 In light of the fact that there is often little advance civilian planning, as noted above, strategic coordination has never really been achieved. In the case of Kosovo, although the principal states involved (France, Britain, Germany, Italy, Russia, and the United States) had decided before the NATO bombing campaign ended that the United Nations, OSCE, and European Union would constitute the pillar structure, these states made no attempt to encourage strategic planning among the organizations themselves.48 Indeed, as we saw earlier, the United Nations did not even know that it was to be the lead organization until shortly before the Security Council authorized the establishment of UNMIK. 46

OHR Mission Implementation Plan (emphasis added). John G. Cockell, 'Civil-Military Responses to Security Challenges in Peace Operations: Ten Lessons from Kosovo', Global Governance, 8/4 (2002), 485. 8 Covey, "The Custodian of the Peace Process'; author interview with DPKO official, New York. 47

Planning Operations 175 Efforts at operational and tactical coordination, after the territorial administration has been established, have been relatively more effective. The achievements, to some extent, represent movement along a learning curve. So poor was the coordination initially between international military and civilian organizations in BiH— where NATO was concerned lest it be called upon to bolster the authority of the HR—that civilian implementation efforts suffered. This experience served as a negative lesson for many international officials subsequently. Thus in Kosovo the commander of the Kosovo Force (KFOR) and the TA established the practice of meeting daily for coordination purposes and, as we saw in Chapter 2, KFOR was willing to perform police duties in areas where UNMIK police were not yet well established. As General Michael Jackson, the first commander of KFOR, remarked in October 1999: 'My aim has been to support UNMIK in every way. Mission creep—the concern that the military is drawn into unforeseen tasks—is a meaningless term in the circumstances that we have found ourselves. We share... one goal. It has been a joint effort/49 It would have been difficult to imagine the commander of the Implementation Force (IFOR) expressing a similar commitment to the implementation of civilian tasks in BiH. Field-level coordination has also improved. In Kosovo, for instance, the decision to organize the UN and OSCE field structures so that they correspond geographically to KFOR's five multinational brigade areas has both enhanced communication and facilitated joint planning. Evidence of the effectiveness was apparent with regard to the first (municipal) elections, in October 2000, where the three organizations worked closely together to ensure the security and integrity of the electoral process.50 In BiH, civil-military cooperation (or CIMIC, as it is known) has expanded since the early days of the international administration to include humanitarian support, repatriation, infrastructure reconstruction, and civil institution-building.51 Problems of planning and coordination also occur between headquarters and the field. The difficulties derive from a combination of factors, inadequate resources chief among them. Not only has 49

Jackson cited in Cockell, 'Civil-Military Responses to Security Challenges in Peace Operations', 487. 50 John G. Cockell, 'Coordinating Institutional Responses to Security Challenges in Peacebuilding: Kosovo in the Balkans Context', paper prepared for the International Peace Academy—DFAIT Canada Working Group on 'Managing Security Challenges in Post-Conflict Peacebuilding', June 2001, 8 (fn. 22). 51 Col. William R. Phillips, 'Civil-Military Cooperation: Vital to Peace Implementation in Bosnia', NATO Review, 46/1 (1998), 23.

176 Planning Operations a single desk officer, in the case of the UN's DPKO, typically served as the 'focal point* for a mission as large as UNMIK or UNTAET (with some input from other personnel) but also the desk officer in question has had numerous other responsibilities to attend to as well. The consequences can extend beyond the planning stage to day-to-day operations, as the Brahimi Report noted: In the current arrangements, compromises among competing demands are inevitable and support for the field may suffer as a result. In New York, Headquarters-related tasks, such as reporting obligations to the legislative bodies, tend to get priority because Member States' representatives press for action, often in person. The field, by contrast, is represented in New York by an email, a cable or the jotted notes of a phone conversation. Thus, in the war for a desk officer's time, field operations often lose out and are left to solve problems on their own.52 There may be times, however, when headquarter and theatre coordination is neither possible nor, for that matter, necessarily desirable. When, in May 1996, Jacques Paul Klein decided to seize Eastern Slavonia's Djeletovci oil fields, which at the time were occupied by a Serbian paramilitary group known as the Scorpions, Klein decided that it would not be prudent to discuss the proposed operation with UN headquarters beforehand if he wanted to ensure its secrecy.53 Threatening to take possession of the oil fields by force—and brandishing tanks, artillery, and assault helicopters to back up his threat—Klein succeeded in persuading the militia to accept an UNTAES escort and to redeploy to Serbia. UN headquarters only learned about the operation after the fact. There was some remonstrance that the operation should have been cleared with headquarters in advance or that New York should at least have been informed in case its peacekeepers had sustained casualties. But Klein took the view that a Chapter VII mandate gave him the authority that he needed to use force and, more important, secrecy was paramount for the operation's success.54 Other TAs have also maintained that the extraordinary demands placed upon them should allow them greater discretionary power.

Learning from Experience International officials have sometimes been mindful of prior and parallel initiatives and have sought to plan on the basis of lessons 52

Report of the Panel on United Nations Peace Operations, para. 183. Author interview with Klein, Sarajevo. 54 For an account of the incident, see Derek Boothby, "The Political Challenges of Administering Eastern Slavonia', Global Governance, 10/1 (2004), 45-6. 53

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that one might draw from those experiences. For instance, as we saw in Chapter 1, the decision to structure UNMIK as a four-pillared operation under the direction of a single TA reflected a conscious attempt to avoid the problems arising from a lack of coordination among the various implementing bodies that had plagued the international administration in BiH. The value of a comprehensive MIP was a lesson that the United Nations also drew from the experience in BiH as it was planning for the successor operation to UNTAET in East Timor,55 whereas UNTAET officials used many UNMIK regulations as the basis for framing their own regulations. Yet given the profile of the personnel who serve in these missions— many of them consultants or career diplomats on secondment to the mission for a limited period of time—it has usually been very difficult to recruit a sufficient number of individuals with detailed understanding of the region and the history of international engagement in the region, let alone of other regions. As a result, the knowledge base and knowledge accumulation have both been limited. In UNMIK's early stages, for instance, there was only one Albanian speaker among the UN officials serving in the administration. And when, in April 2000, UNMIK was reflecting on how to respond to the Kosovo daily Dita's campaign to 'name names'—the publication of alleged Serb war criminals that had resulted in the assassination of the first Serb so named—Bernard Kouchner's political advisors were unaware that in 1998, in response to a similar challenge in neighbouring BiH, the Stabilization Force (SFOR) had seized radio transmitters in Republika Srpska (RS) that were being used by the Bosnian Serbs to incite violence.57 UNMIK would finally respond in early June by temporarily shutting down the paper.58 It has also been the case that lessons from previous experiences have sometimes been absorbed and misapplied. As noted in Chapter 5, some UN personnel in East Timor—mindful of the competition they experienced with the various local parties in Kosovo—were wary about 55

International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 360. 56 Compare, for instance, UNTAET Regulation No. 1999/1 (On the Authority of the Interim Administration in Kosovo) with UNMIK Regulation No. 1999/1 (On the Authority of the Transitional Administration in East Timor), and UNTAET Regulation No. 2001/2, III (On the Election of a Constituent Assembly to Prepare a Constitution for an Independent and Democratic East Timor) with UNMIK Regulation No. 2000/16 (On the Registration and Operation of Political Parties in Kosovo). 57 Author interview with an advisor to the SRSG, Pristina. 58 'Daily Dita Shut Down', UNMIK press release, 4 June 2000, available at www.unmikonline.org/press/mon/lmm040600.html.

178 Planning Operations devolving responsibility for administration of the territory too quickly to the East Timorese lest they were to forfeit control of the situation; this despite the fact that organized political interests in East Timor did not have a separate agenda but, rather, were prepared to work with the United Nations to achieve its stated goals. The East Timor experience also points to a more fundamental point: the importance of local knowledge not only for the purpose of planning and managing an international administration but also to build trust. Overburdened international officials engaged in constant fire-fighting rarely have the time or inclination to learn the language of the territory where they are working. Concentrated in the capital, they tend to know little about the life and people in the provinces. Indeed, cocooned in a world inhabited largely by other internationals, they may know little about the history, politics, and society of the territory they inhabit at all. This lack of familiarity is not lost on the local population, who may regard the international community consequently as an alien presence whose development plans ignore the complexity of the societies that they are seeking to serve.59 There can be no template for an operation as complex as a transitional administration. However, 'best practices' and 'lesson learned' can and should be better distilled from past experiences, and efforts made to disseminate this knowledge within the relevant organizations. We return to this challenge in Chapter 11, where we discuss ways of enhancing the effectiveness of international administration.

59

Local NGOs can sometimes serve as a useful source of local knowledge while their inclusion in planning processes can strengthen their capacity to play an effective role in the emerging domestic institutions. See Ian Patrick, 'East Timor Emerging from Conflict: The Role of Local NGOs and InternationalAssistance', Disasters, 25/1 (2001), 48-66.

8

The Exercise of Executive Authority

A latter-day Machiavelli might well ask: Is it better for a transitional administrator (TA) to administer a territory with limited powers or with full executive authority?1 Circumstances certainly do not dictate one choice or the other. While a complete administrative vacuum, as befell Kosovo and East Timor, would seem to make a compelling case for the assumption of executive international authority, postTaliban Afghanistan—which has been governed by its own internationally assisted interim administration—indicates that under similar circumstances local arrangements can, in principle, also be devised.2 Much will depend on how much of the cost and responsibility of governance relevant third parties are willing to shoulder, how feasible direct rule is, and how effective the exercise of executive authority is thought to be.3 The experience of the international administration of Bosnia and Herzegovina (BiH) would seem to suggest that, where feasible, it 1

The terms 'executive authority' and 'power' are used interchangeably throughout this chapter. Authority can, of course, have other meanings that are also relevant to international administration—notably the capacity to command respect or obedience—but they will not be considered here. On meanings of authority, see R. B. Friedman, 'On the Concept of Authority in Political Philosophy', in Joseph Raz (ed.), Authority (New York: New York University Press, 1990), 56-91. 2 On the post-Taliban administration of Afghanistan, see International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 5; and Simon Chesterman, 'Walking Softly in Afghanistan: The Future of UN State-Building', Survival, 44/3 (2002), 37-46. 3 The 'light footprint', as the UN's approach in Afghanistan has been called, has been criticized precisely because as an assistance mission the United Nations has been unable to protect against widespread and serious violations of human rights. See the reports of Human Rights Watch, in particular 'All Our Hopes Are Crushed: Violence and Repression in Western Afghanistan' (New York: Human Rights Watch, November 2002).

180 The Exercise of Executive Authority is preferable for interim territorial administrators to exercise, or at least possess the power to exercise, full executive authority. Without such authority international officials may be frustrated in their efforts to achieve the aims of their mandates when confronted with the opposition of local actors whose strategic objectives differ from their own or when competing interests among local parties render decision-making impossible. However, the exercise of executive authority can have serious implications for the development of local political culture and institutions. There is the risk of administrative dependency and the danger, as a result, that a local population may not develop a sense of political responsibility.4 There is also the danger that a local population, particularly one with little prior experience of democratic practice, may draw the wrong lessons from the more peremptory methods employed by a TA. And, finally, there is the risk that the decisions taken by the TA will lack legitimacy in the eyes of the domestic public and possibly even internationally precisely because the TA is not accountable to the community in whose interest he is serving. The use of executive authority thus raises two fundamental and related questions. Is the exercise of such power effective; that is, does it contribute to state-building in a positive and sustained fashion? And does the exercise of such authority have legitimacy?

The Heavy Hand of the High Representative The issue of the exercise of executive authority has perhaps been sharpest in BiH, where the gap between the aims of local and international elites has at times been very wide. Opposition to the international agenda has therefore been very strong on numerous occasions while the measures taken by the High Representative (HR) in response have been robust as well. Throughout the years, for instance, the HR and other international parties have gone to great lengths to promote electoral outcomes that they have thought represented the best chance for advancing the international agenda for BiH, notably by seeking to weaken the position of militant nationalists. Some of 4

Paddy Ashdown illustrated the problem of lack of responsibility in a speech on 9 June 2003: 'If spending limits are about to be breached, or a Standby Agreement about to fall, we tend to intervene, the problem disappears and life goes on. So, the symptoms are relieved, the immediate crisis averted; but too often the chronic disease remains unaffected/ Speech by Ashdown at the Launch of the UNDP Governance Perception Survey, Sarajevo, available at www.ohr.int/ ohr-dept/presso/presssp/default.asp?content_id=30042.

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these actions have been so intrusive that in many other contexts they would likely be seen as violations of democratic principles. In one case, international efforts to undermine the leadership of Radovan Karadzic, the president of the Serbian Democratic Party (SDS), led the HR, Carlos Westendorp, first to support Karadzic's opponent Biljana Plavsic, president of Republika Srpska (RS), when she dissolved the SDS-controlled RS National Assembly in July 1997, and then to overrule the RS Constitutional Court when it found her action to be unconstitutional.5 In support of his actions, the HR argued at the time that the Court's decision was a consequence of political pressures.6 While that may indeed have been the case, to override a court's judgement in this manner represents a serious assault on the constitutional order that can hardly be said to serve as an object lesson in democratic governance. As Marcus Cox and Gerald Knaus observe, 'If the High Representative can set aside the constitution and the democratic process in order to advance a particular policy agenda, then why shouldn't Bosnian politicians, if they get the chance?'7 The irony is that Plavsic would later be convicted by the Hague tribunal for crimes committed during the Bosnian war, illustrating a further risk associated with attempts by international authorities to pick winners. Freedom of expression has also been subject to severe restrictions in the stated interest of creating a politically neutral environment for the conduct of elections. On the eve of BiH's first elections in September 1996, for instance, the Elections Appeals Sub-Commission (EASC), chaired by an international official possessing broad powers of interpretation of the election regulations, issued an advisory opinion that proscribed any statements by parties or their representatives that could be construed as expressions of support for the territorial separation and independence of part of the country or that referred to part of the country as sovereign territory. On the basis of this ruling the 5

Office of the High Representative Bulletin, No. 54, 15 July 1997, available at www.ohr.int/ohr-dept/presso/chronology/bulletins/default.asp? content_id=4979; European Stability Initiative, 'Reshaping International Priorities in Bosnia and Herzegovina. Part II: International Power in Bosnia', 30 March 2000, 35-6. 6 Office of the High Representative Bulletin, No. 58, 26 August 1997, available at www.ohr.int/ohr-dept/presso/chronology/bulletins/default.asp ? content_id=4983#l. 7 Marcus Cox and Gerald Knaus, 'Open Letter to Lord Ashdown' (16 July 2003), published in Balkan Crisis Report No. 447 (23 July 2003), available at www.iwpr.net/index.pl?archive/bcr3/bcr3_200307_447_l_eng.txt.

182 The Exercise of Executive Authority EASC fined the SDS $50,000 but not for having called into question the unity of BiH; rather, the SDS was fined for having 'continually stressed the substantial autonomy granted to Republika Srpska in the [Dayton] General Framework Agreement, to the total exclusion of any reference to the unity of Bosnia and Herzegovina'.8 These and related incidents led one critic to observe: The... democracy mission in Bosnia has become a grotesque parody of democratic principles... We are teaching... the virtues of democracy by showing... that an outside power, if it possesses enough military clout, has the right to overrule court decisions, establish political purity tests for candidates for public office and suppress media outlets that transmit politically incorrect views.9

The heavy-handed approach would not appear always to have been very effective either. The elections held in BiH in November 2000 produced some gains for the moderate parties but not the basic realignment of political forces that international efforts had been underwriting for the previous five years.10 In RS, the SDS emerged the clear victor, winning the presidency, the vice-presidency, and a substantial number of seats in the National Assembly. In the Federation, the nationalist Croatian Democratic Union (HDZ) won an absolute majority among Croats. Of the three war-time nationalist parties, only the Bosnian Muslim Party of Democratic Action (SDA) lost ground— largely to the Social Democratic Party (SDP). The October 2002 elections were even more of a disaster from the standpoint of international peacebuilding efforts: the non-nationalist Alliance for Change coalition that was cobbled together after the November 2000 elections lost to the three nationalist parties that had led the country into war in 1992. Not only has international intervention in the political process thus failed to achieve a fundamental shift, it has sometimes even been counterproductive: in BiH's September 1998 elections, for instance, strong international backing for reformist candidates— including pledges of additional financial assistance—appears to have 8

OSCE, Provisional Election Commission, Bitten, No. 3 (October 1996), 119, cited in David Chandler, Bosnia: Faking Democracy After Dayton (London: Pluto Press, 1999), 122. 9 Ted Galen Carpenter, 'Bringing PC "Democracy" Back to Bosnia', Washington Times, 24 October 1997, cited in Chandler, Bosnia: Faking Democracy After Dayton, 158. 10 International Crisis Group, 'Bosnia's November Elections: Dayton Stumbles', ICG Balkans Report No. 104,18 December 2000.

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contributed to their defeat, as some voters resented the intervention of the outside powers.11 These setbacks notwithstanding, there can be little doubt that BiH has undergone very significant change since 1995. As Paddy Ashdown observed in his inaugural speech on 27 May 2002: BiH is now at peace, refugees have been returning in large numbers, freedom of movement has been restored, mosques and churches are being rebuilt, and the country has been admitted to the Council of Europe, the club of European democratic states.12 Indeed, eighteen months later, the European Commission would announce that BiH had made significant progress towards meeting the requirements for European Union accession such that, with further progress in a number of designated areas, the Commission would be willing to start negotiations leading to a Stabilization and Association Agreement (SAA).13 These are not small achievements for a country that only seven years earlier was embroiled in the worst intra-state conflict in Europe since the Spanish Civil War. Yet there can also be little doubt that many state-building measures would not have been undertaken by the local parties had it not been for the intervention of the HR, including the adoption of a common licence plate which did not betray the residence, and therefore the ethnic identity, of the vehicle owner, thus contributing to freedom of movement throughout the territory; the passage of property legislation that has eliminated a major barrier to 'minority returns'—that is, the return of ethnic minorities forcibly displaced from their pre-war homes—thus weakening the ethnic foundations of the two entities; and the adoption of amendments to the Federation and RS constitutions whose provisions had effectively excluded ethnic minorities from full participation in the political life of both entities; among numerous other state-building measures. To the extent that interventions of this kind remove impediments to implementation of the state-building features of the Dayton peace accord—and, in particular, to its more liberal democratic 11

International Crisis Group, 'State of the Balkans', ICG Balkans Report No. 47,4 November 1998,13. 12 Office of the High Representative, 'Inaugural Speech by Paddy Ashdown', 27 May 2002, available at www.ohr.int/ohr-dept/presso/presssp/ def ault.asp ?content_id=8417. 13 'Bosnia and Herzegovina: Commission Approves Feasibility Study', European Commission Press Release IP/03/1563, Brussels, 18 November 2003, available at http://europa.eu.int/comm/externaLrelations/see/news/ ip03_1563.htm. An SAA helps to prepare states for accession to the European Union.

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The Exercise of Executive A uthority

features—they may be very positive. But the question is, can change that will allow BiH to function as a self-sustaining liberal democratic state be achieved ultimately by means of administrative fiat? Many of BiH's political elites continue to pursue narrow ethnic agendas that are fundamentally incompatible with the development of an inclusive, pluralistic state. If the commitment to liberal democracy is lacking among a people or its political leaders, if there is little or no genuine democratic culture alongside formal democratic practices and institutions, can a liberal democracy truly take root? The scholarly literature, we noted in Chapter 5, is generally cautious about any large claims that can be made for the effects of democracy assistance programmes. Of course, the HR's powers far exceed the reach of any democracy assistance programme but the question still remains: How enduring is the impact of international authority in this context likely to be? Can liberal democracy be established through a series of decrees? One might conclude, rather pessimistically, that BiH suffers from a chronic democratic deficit, brought on or exacerbated by the traumas of the 1992-95 war, that cannot be overcome, easily or at all. Yet, if this is the case it is worth recalling that a number of states were, like BiH, formally democratic for quite some time—Germany, Japan, Mexico, and the Philippines—before liberal democratic norms such as respect for fundamental human rights came to be established in them. In each of these cases, the formal institutions of democracy— some of them wholly the creation of outside actors—arguably played an important role in the development of a liberal political culture.14 The lesson one might draw from these experiences is that long-term international engagement may be necessary to ensure the development of liberal democracy in BiH. This is one of the conclusions that the RAND Corporation reached in its 2003 study of US nation-building efforts since the Second World War: 'Successful nation-building, as this study illustrates, needs time and resources... [A] higher level of input accounts, at least in part, for the higher level of output in terms of democratic institutions and economic growth.'15 However, this begs the question as to the precise nature of international engagement that is appropriate to achieve such an end. Whether the use of executive international authority in BiH has been effective for the purpose of state-building is, in the final analysis, an empirical question and it may still be too early to judge. 14

Charles A. Kupchan, 'Democracy First', Foreign Affairs, 77/3 (1998), 122-5. James Dobbins et al.y America's Role in Nation-Building: From Germany to Iraq (Santa Monica, CA: RAND, 2003), 161. 15

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It is noteworthy, however, that there has been gradual acceptance among Bosnians of many Office of the High Representative (OHR)created central institutions, such as the Border Police, the State Court, and the Defence Reform Commission that are critical for the functioning of a state. Few if any Bosnians today question the constitutionality of these institutions, in part because the work of these institutions is seen to be beneficial. It is generally appreciated, for instance, that the guarantee of judicial remedies is vital to promote foreign trade and investment and that defence reform is necessary to reduce costly military expenditures. As far as liberal state-building is concerned, there is also evidence to suggest that the allure of Europe—the prospect of membership in the various European organizations—may ultimately tip the balance in favour of moderate forces in BiH (and Kosovo), as it has among EU and North Atlantic Treaty Organization (NATO) aspirants elsewhere. It was only when NATO made the resolution of longstanding border and minority issues between Hungary and Romania a condition for their membership in the organization, for instance, that protracted negotiations between the two countries were concluded and a basic treaty signed in 1996.16 And the prospect of entry into the European Union has provided a strong incentive for the new democracies in East-Central Europe to implement domestic reform programmes. With the prospect of a SAA in view, BiH's political elite—even the more nationalist parties—may be induced to undertake comparably difficult adjustments.17 Telling in this regard were the remarks of Dragan Cavic, president of RS, during the RS parliamentary debate on Bosnian defence reform in 2003. 'We don't want to stand as an obstacle on the road to Europe', Cavic told the deputies, 'because otherwise someone might just push us off the road.'18

International Authority and Legitimacy To be effective, authority also needs to be legitimate. Legitimacy can be defined as a particular status that an individual, a body, or a norm enjoys by virtue of its conformity to recognized principles or accepted standards and rules of behaviour that allows it to function 16

Joel Blocker, 'Romania/Hungary: Historic Basic Treaty Signed Today', RFE/RL Weekday Magazine, 16 September 1996, online edition at www.rferl.org/features/1996/09/f .ru.960916161658.asp. 17 World Bank, "The Road to Stability and Prosperity in South Eastern Europe: A Regional Strategy Paper' (Washington, DC: World Bank, 2000), 16. 18 Cited in 'Bosnia: Good Tidings', The Economist, 20 December 2003.

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with the broad consent of governments, peoples, organizations, and other agents.19 An institution may derive its legitimacy from a variety of sources, among them established principles and practices of international law. From a legal standpoint, the legitimacy of the HR's authority would seem almost to be unassailable: the parties to the conflict themselves requested the designation of a HR and agreed to his mandate when they signed Annex 10 of the Dayton Agreement.20 The provisions of the Dayton Agreement, and the establishment of a HR in particular, also enjoyed the endorsement of the UN Security Council, an important legitimating body.21 Of course the treaty was accepted by the warring parties only as a result of considerable pressure being brought to bear on them—especially by the United States— but in that respect it differs little from many other peace treaties. More serious perhaps, is the fact that the parties were never consulted about, and therefore never consented to, the expansion of the HR's powers authorized by the Bonn Peace Implementation Council (PIC) although, strictly speaking, the Bonn PIC did not expand the HR's powers but, rather, endorsed the HR's reinterpretation of them. (The operative paragraph reads: 'The Council welcomes the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties 22 by makingbindingdecisions, as he judges necessary ...'.) Moreover,

in view of continuing citizen mistrust of local politicians, as evidenced by recent polls, there appears to be broad recognition among Bosnians that the quality of local political leadership is inadequate and that 19 Thomas Franck defines legitimacy as 'a property of a rule or rule-making institution which itself exerts pull towards compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process'. See Thomas M. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990), 24. 20 The fact that neither the Dayton peace accord nor the Bosnian Constitution within it was ratified by the BiH Parliamentary Assembly has led some, however, to question the legality of these instruments. See interview with Zoran Pajic, 'Should Dayton Be Revised?', Bosnia Report, new series no. 11/12 (1999), available at www.bosnia.org.uk/bosrep/augnov99/default.cfm. 21 SC Res 1031 (1995), 15 December 1995, para. 26. On the United Nations as a principal source of political legitimacy in international relations, see Inis L. Claude, Jr., 'Collective Legitimization as a Political Function of the United Nations', International Organization, 20/3 (1966), 367-79. 22 Peace Implementation Council, 'Bosnia and Herzegovina 1998: Selfsustaining Structures', Bonn, 10 December 1997, Art. XI(2), available at www.ohr.int/pic/default.asp ?content_id=5182.

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a dem ex machina is required, for now at least, to help bring BiH into Europe.23 However, no referendum has ever been held to confirm this choice and it would be wrong to deduce such a conclusion from the polling results alone. The issue of legitimacy is relevant not only to the source of the HR's authority but also to the purposes for which that authority is exercised. The HR's first responsibility—like that of other TAs—must be to ensure full compliance with the international legislation that established the interim administration and that determines its mandate (for instance, the Dayton Accord and the relevant UN Security Council resolutions). The language of the TA's regulations often reflects this constraint. Thus, the regulation that created the East Timor National Council stipulates that: c[t]he final authority of the Transitional Administrator in exercising his responsibilities vested in UNTAET under Security Council Resolution 1272 (1999)... shall in no way be prejudiced by the provisions of this regulation'.24 Thus where local preferences represent a patent violation of international legislation, or simply derogate from the authority of the TA, he (or she) has little choice but to override them. However, what constitutes compliance or implementation is often a matter of considerable debate, and there is a fine line between ensuring compliance with a peace agreement, on the one hand, and interference in the 'internal' affairs of a territory—even in the context of international administration—on the other. The PIC, for instance, whose responsibility it is to provide the HR with political guidance regarding implementation of the Dayton Agreement, has at various times articulated very specific goals for the international community in BiH—goals that some might argue exceed general requirements for state-building. Consider the HR's 12 November 2000 decisions with respect to labour legislation adopted by the National Assembly of Republika Srpska, which would have provided generous compensation benefits to unemployed workers. Acting on the basis of the guidance provided by the PIC at its 23

Florian Bieber, 'Far from Raj', Balkan Reconstruction Report/Transitions Online, 31 July 2003, available online at www.tol.cz. For polling data to support the view that Bosnian citizens do not have confidence in their politicians, see OSCE Press Release, 'OSCE Poll Shows Public has No Confidence in BiH Leaders to Fight Corruption', 1 April 2003, available at www.oscebih.org/pressreleases/2003/01-04-03-eng.htm. 24 UNTAET Regulation No. 2000/24, On the Establishment of a National Council, 14 July 2000, Section 10.

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meeting in Brussels on 23-24 May 2000,25 when he was urged to use his authority to remove obstacles to economic reform and to create the conditions for self-sustaining market-oriented economic growth, the HR effectively rewrote the RS assembly legislation to reduce the level of unemployment benefits. In support of his decision he observed that the legislation 'would have caused considerable financial difficulties to a large number of enterprises, thereby impeding the privatization process and jeopardizing current employment and the viability of enterprises all over the Republika Srpksa'.26 Is this a legitimate use of the HR's powers ? On the one hand, it could be argued that what welfare provisions, if any, a society chooses to provide for its own workers are a matter of political choice—indeed, the Constitution of Republika Srpska explicitly grants the entity the authority to regulate work relations, including social insurance27— and that local officials should be allowed to suffer the consequences (or reap the rewards) of their choices, as freely elected representatives do elsewhere. On the other hand, in the absence of intervention by the HR, here and in many other cases, it is most unlikely that the local parties would have adopted many of the measures necessary to enable BiH to make the transition from a donor-dependent economy to a self-sustaining one. Similar questions have arisen with respect to the HR's dismissals of elected or appointed officials. The HR can remove or bar from office any official who, in his estimate, is obstructing implementation of the Dayton peace accord, broadly interpreted. In the six-year period from March 1998 to March 2004 the HR either unseated or prevented from holding office more than 100 officials, including mayors, presidents of municipal assemblies, cantonal ministers, delegates to entity parliaments, judges, directors of companies, the president of RS, and a member of the Bosnian presidency (see Figure 8.1).28 The HR may order a dismissal without providing any evidence to support the action. Nor is there any court of appeal. The lack of due process has not been lost on the local political elite. 25

'Declaration of the Peace Implementation Council', 24 May 2000, Brussels, available online at www.ohr.int/pic/default.asp ?content_id=5200. 26 'Decision Amending the RS Labor Law, Reducing Compensation Payments to Employees on "Waiting Lists'", available at www.ohr.int/decisions/ econdec/default.asp?content_id=34. 27 Constitution of Republika Srpska, Art. 68. 28 The HR's decisions are available at www.ohr.int/decisions/archive.asp.

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Figure 8.1 Decisions of the High Representative, 1996-2003 Source'. Office of the High Representative, www.ohr.int. As Alija Izetbegovic, a member of the Bosnian presidency at the time, observed: 'In Sarajevo, they remove a man, label him dishonest, do not present any proof of this, and then talk to us about human rights.'29 Should there, then, be prescribed limits to the scope of the HR's interventions as BiH's democracy matures? This is the view taken by Gerald Knaus and Felix Martin in their article, 'Travails of the European Raj: Lessons from Bosnia and Herzegovina'.30 'Where are the red lines?' they ask, that represent the limits to legitimate intervention: When the High Representative today speaks of an 'emergency', he refers not to hate-filled radio broadcasts inciting violence against peacekeeping troops but rather to inefficient tax collection, the excessive regulation of private business, corruption in the public utilities, or technical drawbacks that make the court system less efficient than it otherwise might be. When he speaks of enemies of the Bosnian state, he means not armed paramilitaries committing premeditated arson but businesspeople evading sales taxes or politicians implicated in procurement scandals.31 29 Izetbegovic cited in Gerald Knaus and Felix Martin, 'Travails of the 30 European Raj',/o#nw/ of Democracy, 14/3 (2003), 66. Ibid., 60-74. 31 Ibid., 69.

190 The Exercise of Executive Authority There needs to be a clear (though not rigid) sense of the limits of executive authority and, as Knaus and Martin suggest, mechanisms of accountability whereby these limits can be monitored and enforced. (The issue of accountability is discussed in Chapter 9.) To a certain extent Paddy Ashdown began to delineate such limits with the articulation of his Mission Implementation Plan (MIP) in January 2003, which identifies the core tasks on which the OHR proposes to focus to accomplish its mission. The MIP acknowledges that it is neither possible nor desirable for the OHR to do everything. 'Our job is to bring BiH to the point at which it can continue its journey, like other transition countries, with substantial support from the international community, but without the unique and highly intrusive, and potentially dependencyinducing post-war support structure that OHR represents/32 More significantly, as noted in Chapter 7, the MIP identifies the transition point for each of its core tasks by which they can be judged either complete or in a position to be handed over to the Bosnian authorities. Here, then, is a gauge by which it is possible to assess whether the OHR is working within or exceeding specified limits. The problem with this approach, however, is twofold. First, it leaves it to the OHR to identify both the tasks and transition points and, more important, to make the determination as to whether these points have been reached. There is thus the danger that the goal posts can be moved indefinitely. Indeed, as the OHR itself has acknowledged, rather ambiguously, it may be necessary to add tasks or programmes 'in the light of developments'.33 Second, there is no mechanism by which Bosnian citizens can challenge the HR's assessments of progress towards transition, just as there are no mechanisms for the review of other decisions, including dismissals, that he may make.

Local Ownership The flipside of restraint in the exercise of international authority is local ownership of the processes of governance. HR Wolfgang Petritsch made ownership the cornerstone of his new strategic approach to the international administration of BiH in 1999: '{T]he overriding objective of the International Community must now be to substantially 32

Office of the High Representative, 'OHR Mission Implementation Plan', 30 January 2003, available at www.ohr.int/ohr-info/ohr-mip/default.asp? 33 content id=29145. Ibid.

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accelerate the rate at which responsibility for governance and particularly the creation and effective operation of state institutions is assumed by local political leaders', he told ministers of the PIC's Steering Board on 22 September 1999.34 However, what Petritsch and other international officials clearly have had in mind when they have spoken about ownership is a greater sense of responsibility for domestic governance. Missing from the equation is any real sense of ownership of international processes. And, yet, local ownership is arguably difficult to achieve without meaningful local participation in international as well as domestic decision-making. As Joseph Stiglitz, the former chief economist of the World Bank, has observed in relation to development assistance programmes: Broad participation in the vital activities of a developing society, like shopfloor participation in a company, is at least helpful, and perhaps even necessary to foster a lasting transformation. Active involvement brings commitment to the lessons being learned and ownership of the results. Participation and involvement is not just a matter for government officials or managers; it needs to reach deeper to include those who are often excluded and who are key to the strengthening of social and organizational capital. Outside experts can encourage 'ownership' of 'best policies' through persuasion, but the degree of ownership is likely to be much greater if those who must carry out the policies are actively involved in the process of shaping and adapting, if not reinventing these policies in the country itself.36 Active local involvement in the process of shaping international legislation with respect to BiH has certainly been limited. We have seen in Chapters 4 and 5 how various consultative mechanisms were established in Kosovo and East Timor to allow local input into international decision-making. Formal mechanisms of this kind have been lacking in BiH, in part because BiH, uniquely among all internationally administered territories, has had a sovereign government and it would not have been appropriate for an international administration to establish formal consultative links locally with anyone other than government 34

'Speech by the High Representative for Bosnia and Herzegovina, Ambassador Wolfgang Petritsch, at the Steering Board Ministerial Meeting', New York, 22 September 1999, available at www.ohr.int/ohr-dept/presso/ presssp/default.asp?content_id=3339. 35 See Mark Baskin, 'Between Exit and Engagement: On the Division of Authority in Transitional Administrations', Global Governance, 10/1 (2004), 119-37. 36 Joseph E. Stiglitz, 'Participation and Development: Perspectives from the Comprehensive Development Paradigm', Review of Development Economics, 6/2 (2002), 169.

192 The Exercise of Executive Authority or government-sanctioned representatives. Indeed, in Kosovo and East Timor, the formal local consultative mechanisms were disbanded once the provisional institutions of self-government were established. For similar reasons, arguments in favour of the 'Bosnianization' of the OHR are somewhat misguided. While it might seem desirable to increase the degree of local responsibility for the execution of OHR tasks, a truly Bosnianized OHR would represent something of an unelected parallel Bosnian government, which would clearly be unacceptable. The fact that the OHR is not accountable to the Bosnian public is problematic enough; how much more fraught would be the relationship between a Bosnian head of the OHR's Economic Department and the Federation's elected Finance Minister? There are also legal impediments to local ownership of international processes. The HR and other international officials are accountable to an international constituency and have an international mandate to ensure the integrity of particular governmental operations. There is, in short, an inherent contradiction between the requirements of international administration, on the one hand, and the imperative of local ownership, on the other, which can only be overcome with the eventual transfer of responsibility to the Bosnian authorities and the concomitant relinquishment of international authority over those same areas. The Bosnianization of internationally controlled governmental functions has in fact occurred in a number of areas—some of them very sensitive—as local authorities have satisfied the international authorities that they have the capacity to execute their responsibilities in a competent and impartial manner. After six years of direct management of all electoral activity in BiH, for instance, the Organization for Security and Co-operation in Europe (OSCE) in 2001 transferred its responsibility for the administration of elections to a mixed Bosnian Election Commission (comprising four Bosnians and three internationals) that derives its authority from and reports to the Parliamentary Assembly of Bosnia and Herzegovina. Similarly, in December 2003 the OHR terminated the Reconstruction and Return Task Force (RRTF) and transferred its responsibilities to the relevant domestic authorities.37 And on 1 January 2004, three Bosnian citizens succeeded Frank Orton, a Swedish national, as the Human Rights Ombudsman of Bosnia and 37

25th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 3 March 2004, para. 52, available at www.ohr.int/other-doc/hr-reports/default.asp? content id=32024.

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38

Herzegovina. The Central Bank of Bosnia and Herzegovina, too, has undergone a steady Bosnianization: its staff of more than 250 is made up now almost entirely of Bosnian nationals. While the head of the bank has been a foreign national, as stipulated by the Dayton Accord, a Bosnian will serve as the Governor from 1 January 2005.39 In all cases the domestic bodies are subject to continued international supervision but, in effect, international control has withered away. As some of the examples above suggest, local ownership consistent with international expectations may be easier to foster within mixed institutions that are run by internationals initially with the participation of domestic officials selected by the transitional authorities. These institutions, as we discussed in Chapter 4, are thus de-linked from nationalist politics, and a progressive transfer of responsibility can take place as the domestic officials demonstrate that they have the capacity to perform their duties impartially. Within wholly domestic institutions—that is to say, most Bosnian governmental bodies— where there may be strong pressures to compromise the integrity of public institutions to serve parochial interests, local ownership may require the pressures of an organized, informed, and engaged citizenry if these institutions are to be effective. In other words, only if domestic officials feel that they are answerable to a public that is demanding more from their elected representatives are they likely to serve in an impartial manner. The difficulty, however, is that there is no real tradition of participatory politics in BiH and, despite the proliferation of domestic non-governmental organizations (NGOs) in recent years, interest groups have been slow to form.40 That is not to say that interest groups do not exist but they tend to be limited to a few sectors of society—notably public employees, industrial workers, and veterans—whose interests traditionally have been well served.41 There are several reasons, apart from tradition, that explain the relative lack of interest-group politics. Many citizens do not understand how their 38

Human Rights Ombudsman of Bosnia and Herzegovina, 'Preliminary Monthly Report', 31 December 2003, available at www.ohro.ba/articles/ cs.php?id=183. 39 The first Bosnian Central Bank Governor, Peter Nicholl, was in fact appointed in May 2003. He was a foreign national who had served as the first Governor from 1997-2003 and, having obtained Bosnian citizenship, was reappointed to the post for another 17 months. 40 European Stability Initiative, 'Governance and Democracy in Bosnia and Herzegovina: Post-Industrial Society and the Authoritarian Temptation* (draft), 41 September 2003, 64. Ibid., 63.

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various governments function; nor are they well informed about the performance of either public officials or governmental bodies. In the absence of knowledge and information, citizens are disinclined to take initiative. Moreover, there is a tendency among citizens to view politics as the preserve of self-serving elites over whom ordinary citizens can have little influence. And, as the European Stability Initiative (ESI) has observed, '[wjhen citizens expect little from the political process, they make little effort to form into interest groups and place demands on politicians'.42 Yet unless and until public officials are subject to increased public pressure to perform in the public interest, real local ownership of governance will remain a chimera. In summary, the exercise of executive authority by TAs, although not necessarily a requirement for effective administration, is justified on the grounds that without it international officials may be frustrated in their efforts to achieve the aims of their mandates when confronted with local opposition or when competing interests among the local parties render decision-making impossible. Full executive authority, however, does not translate necessarily into sustainable results. On the one hand there is the risk that it will inhibit the development of autonomous capacity; on the other hand there is the danger that the exercise of authority will be seen to lack legitimacy. The contradiction between executive international authority and local self-determination can only be overcome with the progressive transfer of responsibility to local authorities as they demonstrate a capacity to govern in a competent and impartial manner. However, while extensive international authority may be adequately controlled at the international level, transitional administrations need to be more accountable to the local populations on whose behalf the territorial administration has been established. We turn now to a closer consideration of accountability.

42 European Stability Initiative, 'Governance and Democracy in Bosnia and Herzegovina: Post-Industrial Society and the Authoritarian Temptation' (draft), September 2003, 64.

9 Accountability

International administrations, like trusteeships before them, derive their legitimacy not only from the international legislation that establishes them. They also acquire their legitimacy from the notion of a 'trust'1—a fiduciary relationship, with respect to property, whereby the trustee who holds the title to the property is subject to equitable duties to keep or use the property for the benefit of another.2 The idea of international governance of a foreign territory, then, can be legitimate only if that governance is perceived— locally and internationally—to be exercised on behalf of, and for the benefit of, the foreign population. To establish international administration on any other basis primarily would constitute exploitation. (One cannot ignore that further benefits—prestige, influence, security, etc.—intended or otherwise, may also accrue to the 'trustee'.) Trust, in turn, is ensured in part through the principle of accountability: the idea that the administering authority can and should be held responsible for its actions. But to whom is a transitional authority accountable? Strictly speaking, a transitional administrator (TA) is accountable to the body that appoints him or her, whether that be the UN Security Council, in the cases of Eastern Slavonia, Kosovo, and East Timor, or additionally the Peace Implementation Council (PIC), in the case of Bosnia and Herzegovina (BiH).3 TAs and their staff serve at the pleasure of these bodies (or the other participating states and orgnizations such as the 1

Dietrich Rauschning, 'International Trusteeship System', in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Munich: C.H. Beck, 1995), 933^t. 2 Halsbury's Laws of England, 4th edn. (London: Butterworths, 2000), 48, para. 501. 3 The Peace Implementation Conference, meeting in London on 8-9 December 1995, designated Carl Bildt as the first High Representative. The UN Security

196 Accountability Organization for Security and Co-operation in Europe (OSCE) and the European Union), and it is to these bodies that the transitional authorities report and are answerable. While local parties may also have to account to international bodies—for monies loaned or granted by international financial institutions, for instance—these bodies are not themselves accountable to the local population in any direct way. The World Bank answers to its Board of Governors (the 'shareholders'), not to the recipients of its funds (the 'stakeholders'), although representatives of the affected population may be consulted in the design of projects, and sundry mechanisms have been established to hear local complaints. These mechanisms, however, are often limited in the scope of their jurisdiction and in the redress that they make available. As we have observed with respect to other aspects of international administration, there is, then, a fundamental contradiction that lies at the heart of these initiatives: while international administrations seek to promote democracy, among other objectives, they are in many ways undemocratic in the manner in which they function. There is no separation of powers: executive, legislative, and judicial authority are vested in a single individual (the transitional administrator), whose decisions cannot be challenged by the local population, whose actions are not always transparent, and who cannot be removed from power by the community in whose interests he or she exercises authority ostensibly. One critic has thus found it apt to describe the TA as a 'pre-constitutional monarch in a sovereign kingdom'.4 Sergio Vieira de Mello even likened himself to a 'benevolent despot'.5 Of course, transitional administrations also operate within a complex international environment in which democratic norms, regional and global institutions, the media, non-governmental organizations (NGOs), and other factors exert a constraining influence on their behaviour. Are these factors, however, adequate to ensure against the misuse of international authority? And do they compensate for the lack of international accountability at the local level? These are key questions for the international administration of wartorn territories. Council in turn endorsed the establishment of a High Representative and agreed the appointment of Bildt (SC Res 1031 (1995), 15 December 1995). 4 Jarat Chopra, 'The UN's Kingdom of East Timor', Survival, 42/3 (2000), 29. 5 See his 'UNTAET: Lessons to Learn for Future United Nations Peace Operations', presentation to the Oxford University European Affairs Society, 26 October 2001,11.

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Conceptualizing Accountability The idea of accountability is fundamental to the exercise of democracy; indeed it is to a large extent what makes a democratic society democratic. But what does it mean to be accountable—to whom and for what actions? Accountability refers to the various norms, practices, and institutions whose purpose is to hold public officials (and other bodies) responsible for their actions and for the outcomes of those actions. It is concerned, in particular, to prevent and redress abuses of power.6 Scholars sometimes distinguish between 'vertical' accountability and 'horizontal' accountability. Vertical accountability pertains to the relationship between 'unequals', such as a government and its citizens or a boss and her subordinates. Horizontal accountability pertains to the relationship among 'equals', such as the autonomous agents of a government or society (e.g. the courts or the media vis-a-vis the executive).7 Both types of accountability exist in relation to international administrations but only at the international level, where transitional administrations and their constituent elements may be subject to internal audits (horizontal accountability) or the scrutiny of the secretariat or member states of international organizations (vertical accountability). As noted earlier, the 'stakeholders'—those most affected by the actions of an international administration—are largely excluded from these processes.8 Accountability entails answerability—the obligation on the part of public officials to inform the public about what they are doing and to provide explanations for their behaviour. Accountability thus requires transparency with respect to decision-making, although this needs to be balanced against legitimate requirements for confidentiality (for instance, with respect to intelligence sources relating to national security). Accountability often also requires effective mechanisms of enforcement. If sanctions for malfeasance are not enforced—if, for instance, corrupt political leaders can disregard election results or court decisions—accountability may be devoid of any real meaning. 6

Andreas Schedler, 'Conceptualizing Accountability', in Andreas Schedler, Larry Diamond, and Marc F. Planner (eds.), The Self-Restraining State: Power and Accountability in the New Democracies (Boulder, CO: Lynne Rienner, 1999), 14. 7 Ibid., 22-5. See also Guillermo O'Donnell, 'Delegative Democracy', Journal of Democracy, 5/1 (1994), 55-69. 8 On the notion of 'stakeholder accountability', see R. Edward Freeman, Strategic Management: A Stakeholder Approach (Boston: Pitman, 1984).

198 Accountability The sanctions need not necessarily be severe and sometimes disclosure alone can be its own punishment, as when public officials feel compelled to resign over conflicts of interest or individuals testifying before a truth commission suffer shame as a consequence of their actions. Under some circumstances, however, accountability need not entail sanctions at all, as when a central banker is called to appear periodically before a parliamentary committee to explain the reasoning behind interest rate adjustments.9 As this example suggests, accountability not only guards against abuses of power; it also provides citizens and other stakeholders with information with which they can then make informed judgements, whether or not they are empowered to act on those judgements. (Citizens do not ordinarily elect their central banker, for instance.) One reason to limit the scope of citizen response is to ensure the independence of officials (judges, for instance) who might otherwise be susceptible to electoral or other pressures that would compromise the integrity of their work. Citizen response is sometimes also inhibited, more broadly, in situations of extreme emergency where the suspension of the exercise of certain rights may be thought to be necessary for a limited period of time to restore normality.10 In effect this is the basis on which stakeholder accountability would appear to be restricted in international administrations, 'normality' here understood to mean a stable peace and the establishment of effective mechanisms of domestic democratic governance. Such reasoning is nowhere made explicit, yet the extraordinary power vested in the administering authority and the absence of significant mechanisms of stakeholder accountability would seem to reflect such a view. (UNMIK—the UN Interim Administration Mission in Kosovo—in fact, defended its practice of extra-judicial detention in 2001 with reference to the 'internationally-recognized emergency'.)11 Alternatively, one can liken the administered territories to non-self-governing 9

Schedler, 'Conceptualizing Accountability', 17-18. International Covenant on Civil and Political Rights, Art. 4.1 reads: 'In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.' 11 'Regarding the Administration's retention of the right to extend pre-trial detention through Executive Orders, i.e. outside the jurisdiction of the courts 10

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territories and the administering authorities to trustees who, while obliged to promote the well-being of the inhabitants and the progressive development of their political institutions, are not obliged to answer to them. Yet although such comparisons may have a certain heuristic utility, they have no formal value as the administered territories are, legally speaking, sui generis. Mechanisms of Accountability To say that international administrations are, in many respects, unaccountable is not to suggest that there are no mechanisms of accountability at work at all. To begin with, TAs must comply with a variety of reporting obligations at the international level. The UN Security Council requires the Secretary-General to report regularly on the activities of the territorial administrations whose establishment the Council has either authorized (Eastern Slavonia, Kosovo, East Timor) or endorsed (BiH).13 In addition to these reports, the Council will often also request the TA to brief the Council directly, while members of the Council may also visit the territory to observe the work of the administration first hand. The High Representative (HR) is also required to report periodically to the European Union, the United States, Russia, and 'other interested governments, parties, and organizations' (as well as to the United Nations), on progress in implementation of the Dayton peace agreement,14 and to brief the PIC and its Steering Board regularly. The reports are available (in English only) for all to read on the official web pages of the administrations; indeed, the Internet has utterly transformed public access to official documentation. Other international or regional organizations participating in transitional administrations, such as the World Bank and system, UNMIK reminds critics that Kosovo still ranks as an internationallyrecognized emergency. For such circumstances, international human rights standards accept the need for special measures that, in the wider interests of security, and under prescribed legal conditions, allow authorities to respond to the findings of intelligence that are not able to be presented to the court system.' UNMIK News, No. 98, 25 June 2001, available at www.unmikonline.org/ pub/news/nl98.html. For a discussion of the UN's use of extra-judicial pre-trial detention, see Chapter 2. 12

Compare with Charter of the United Nations, Chapter XI ('Declaration Regarding Non-Self-Governing Territories') and Chapter XII ('International Trusteeship System'). 13 See, for instance, SC Res 1244 (1999), para. 20. 14 The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 10, Art. II.l(f).

200 Accountability the OSCE, have similar reporting requirements. Of course, reporting on one's own activities has obvious limitations as far as critical examination is concerned even if these reports often contain candid assessments and, moreover, are subject to scrutiny by higher and outside authorities. The most important autonomous institution from the standpoint of accountability is the office of the ombudsperson. In Kosovo the Ombudsperson Institution was established by UNMIK Regulation 2000/38 on 30 June 2000—one year after the establishment of UNMIK itself—although the institution was not formally inaugurated until the following November. In East Timor the Office of the Ombudsperson, which was set up without a regulation of the UN Transitional Administration in East Timor (UNTAET), did not become operational until May 2001—some seventeen months after the UN Security Council authorized the establishment of UNTAET.15 In BiH there are three ombudsperson institutions—one at the state level (including the District of Brcko) and one for each of the two entities—but their jurisdictions do not extend to international actions except insofar as international bodies may be called upon to facilitate redress of domestic violations.16 UNTAES did not establish an ombudsperson for Eastern Slavonia. An institution that has its modern roots in nineteenth-century Sweden, the ombudsperson is an independent public official who receives complaints from aggrieved individuals against public bodies and government departments or their employees and who has the power to investigate, recommend corrective action, and issue reports.17 The scope of the ombudsperson's remit can vary significantly, from 'general purpose' (dealing with complaints across a wide spectrum of governmental activities at all levels of government) to 15

See 'Twenty Cases Examined by Ombudsperson', UNTAET Daily Press Briefing Media Notes, 1 June 2001, available at www.un.org/peace/etimor/ DB/UntaetDB2001 .htm. 16 The Dayton Agreement (Annex 6, Art. IV) mandated the appointment of a Human Rights Ombudsman for a non-renewable five-year term, which the three signatory parties agreed to prolong until 31 December 2003, when responsibility was transferred to an all-Bosnian institution. The Ombudsmen of the Federation of Bosnia and Herzegovina was established under the Federation Constitution of 1994 while the Ombudsmen of Republika Srpska was established through legislation adopted in February 2000. " The definition is similar to that employed by the International Bar Association. See Roy Gregory and Philip Giddings, 'The Ombudsman Institution: Growth and Development', in Roy Gregory and Philip Giddings (eds.), Righting Wrongs: The Ombudsman in Six Continents (Amsterdam: IOS Press, 2000), 3.

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'single purpose' (dealing with only one area or aspect of governmental activity). Ombudsperson offices also operate in the private sector, offering, for instance, protection for the consumer.18 The function of the ombudsperson in international territorial administrations has essentially been to promote and protect the human rights and freedoms of individuals and legal entities within the territories in question. (Consideration had also been given to the inclusion of 'maladministration' within the remit of the Kosovo ombudsperson but these provisions were omitted from the final regulation.)19 The scope of the ombudsperson's remit, therefore, has been fairly restricted relative to the range of possible official malfeasance. In some cases the scope has also been limited in relation to the bodies that are subject to the ombudsperson's jurisdiction. In BiH, as noted above, the institution functions only in relation to Bosnian authorities; the actions of international agencies and their personnel lie outside its purview. In East Timor, by contrast, complaints could be filed against UNTAET as well as the agencies, programmes, and institutions of the emerging state with respect to policies, procedures, and decisions that were thought to be unfair, discriminatory, or unjust or in violation of human rights.20 In Kosovo, similarly, the ombudsperson can receive and investigate complaints from any person in Kosovo concerning human rights violations and actions constituting an abuse of authority by UNMIK as well as by any central or local institution.21 The ombudsperson's jurisdiction does not extend to the Kosovo Force (KFOR), however. The United States, in particular, has been concerned lest its soldiers be subject to politically 18 19

Ibid., 8-11.

Pirkko Koskinen, 'Workshop Background Paper on Human Rights Institutions', paper prepared for Kosovo International Human Rights Conference, 10-11 December 1999, in Conference Documents and Report (Kosovo: OSCE Mission in Kosovo, 2000), Annex F, 120. The so-called Grossman Catalogue defines 'maladministration' as including 'bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness, and so on'. The 'catalogue', which was not intended to be a comprehensive definition, are the examples offered by Richard Grossman, then leader of the House of Commons, when the Parliamentary Commissioner Act of 1967 was being taken through Parliament. House of Commons Debates [Hansard] 734, 1966-67, 18 October 1966, cols 51-2. 20 'Twenty Cases Examined by Ombudsperson', UNTAET Daily Press Briefing, 1 June 2001, available at www.un.org/peace/etimor/DB/ UntaetDB2001.htm. 21 UNMIK Regulation No. 2000/38, On the Establishment of the Ombudsperson Institution in Kosovo, 30 June 2000.

202 Accountability motivated investigations abroad—a concern that has also been reflected in US unwillingness to submit to the jurisdiction of the International Criminal Court—notwithstanding some credible allegations of human rights violations against KFOR soldiers in the conduct of their policing responsibilities.22 For a territory that has little experience with institutional safeguards against the abuses of local security forces, the exemption of KFOR hardly seems to serve as a positive example.23 There are other restrictions on the jurisdiction of the ombudsperson,24 but although its authority may be limited in several important respects, the functions and powers of the office are by no means negligible. Ombudspersons typically have broad powers of investigation. They can initiate investigations either on the basis of complaints filed with them or on their own initiative (ex officio). All persons are required to cooperate with the ombudsperson, who also is given unfettered access to documents. In the case of Kosovo, for instance, the ombudsperson may examine all files and documents of the interim administration and of any emerging central or local governmental body.25 Although the TA may refuse access to sensitive documents (provided that he or she offers reasons in writing), such cases are rare.26 During or following an investigation, the ombudsperson may make recommendations to the relevant authorities to take appropriate measures, including interim measures, that address the basis of the complaint in question. If the officials concerned do not take appropriate measure within a reasonable period of time, the ombudsperson may draw the TA's attention to the matter and make a public statement.27 As the ombudsperson's powers are limited largely to making recommendations, she or he relies fundamentally on the authority of the institution—its influence and prestige—to achieve results. How effective has the institution been then? In its first three years of 22 See Amnesty International, 'Kosovo: KFOR and UNMIK fail to uphold human rights standards in Mitrovica', Amnesty International News Release, 13 March 2000, AI INDEX: EUR 70/14/00. 23 Christopher Waters, 'Human Rights in an International Protectorate: Kosovo's Ombudsman', The International Ombudsman Yearbook, 4 (2000), 147. 24 With respect to Kosovo, cases can only be handled that pertain to complaints arising from actions occurring after July 2001; cases must be situated in Kosovo proper; and the Ombudsperson cannot take cases to court; among other restrictions. See UNMIK Regulation No. 2000/38, Sections 3 and 4. 25 UNMIK Regulation No. 2000/38, Section 4.7. 26 Author interview with Ombudsperson Institution official. 27 UNMIK Regulation No. 2000/38, Section 4.11.

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operation—from 21 November 2000 to 30 June 2003—991 formal applications were lodged with the Kosovo ombudsperson (808 concerning alleged violations by UNMIK and KFOR), of which 393 were the subject of investigation.28 The ombudsperson also initiated twenty-seven ex officio investigations. Most of the complaints related to property issues (such as government takings of or damage to property, difficulties in gaining access to property), fair trial rights (lack of access to court, undue delays in civil proceedings), abuses of authority (failure of administrative authorities to respond to requests, arbitrary or discriminatory administrative decisions), employmentrelated complaints (unjust dismissals, non-competitive employment processes), impunity abuses (the failure to investigate crimes), and assaults on liberty rights (no arrest warrant, the complainant not brought promptly before a judicial authority). In respect of the 393 individual cases, only eighteen final reports had been issued as of 30 June 2003—an indication of the limited resources available and how time consuming a full formal investigation can be, although some cases may be resolved without the need of a full report. (By comparison, the UK Parliamentary Ombudsman took, on average, twenty-two months to complete an investigation in 1996.)29 Complainants must, therefore, wait a long time for an investigation to be completed, which perhaps explains why so many cases (157) were closed on the grounds that the problems raised had been resolved or the applicants were no longer interested in pursuing the matter. Moreover, the ombudsperson has not always been able to secure the compliance of the authorities. During the same period, the Kosovo ombudsperson made twenty-eight requests for government authorities (domestic and international) to take interim measures. These included requests to the UNMIK head of Judicial Affairs to release from detention an individual who had been detained unlawfully (unsuccessful), a request to the UNMIK Public Utilities Department to refrain from disconnecting individuals from utilities pending an ombudsperson investigation into possible defects of the exemption scheme (partly successful), and a request to the president of the Municipal Court in 28

Ombudsperson Institution in Kosovo, Third Annual Report 2002-2003 (10 July 2003), 8, available atwww.ombudspersonkosovo.org. Of the 991 applications lodged, 441 applications were rejected on grounds that the ombudsperson did not have jurisdiction to investigate the complaint (or on similar grounds) and 157 cases were closed either because the problems raised had been resolved or the applicants were no longer interested in pursuing their complaints. 29 Roy Gregory and Philip Giddings, "The United Kingdom Parliamentary Ombudsman Scheme', in Gregory and Giddings (eds.), Righting Wrongs, 31.

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Gjilan/Gnijlane to ensure that decisions of the court prior to the 1999 conflict were communicated to the relevant parties (successful). By the ombudsperson's own reckoning, nine of his requests for interim measures were successful, five were partly successful, and fourteen were unsuccessful.30 The ombudsperson has another important function: he or she can issue special reports and make recommendations concerning the compatibility of international and domestic legislation with recognized international standards. Kosovo's ombudsperson has, for instance, criticized the virtual impunity with which UNMIK and KFOR operate (about which more below). Other special reports have addressed the failure of the TA to entrench international human rights standards in the legal system of Kosovo (Special Report No. 2), the deprivation of liberties under the TA's 'executive orders' (Special Reports Nos. 3 and 4), and the incompatibility of certain aspects of UNMIK Regulation 2001/17, which restricts the registration of contracts for the sale of minority property, with the European Convention on Human Rights (Special Report No. 5). These reports have focused local and international attention on the extraordinary powers of the TA and have helped to generate debate within Kosovo and abroad about the appropriate exercise of executive authority. There are other mechanisms of accountability at work within international administrations. In East Timor in July 2000, UNTAET established the Office of the Inspector General in response to demands from the National Council of Timorese Resistance (CNRT) to establish an East Timorese body that could examine the use of funds from the World Bank-administered Trust Fund for East Timor (TFET). With an eye towards developing 'a culture of accountability and transparency in the new [East Timorese] government',31 the office was given a mandate additionally to investigate any activities of the East Timor Transitional Administration (ETTA), the nascent government.32 (A parallel institution within UNTAET, the Procurement 30

Ombudsperson Institution in Kosovo, First Annual Report 2000-2001 (18 July 2001), 5; Second Annual Report 2001-2002 (10 July 2002), 6; and Third Annual Report 2002-2003 (10 July 2003), 8, available at www. ombudspersonkos o vo. org. 31 Report of the Secretary-General on the United Nations Transitional Administration in East Timor (for the period 27 July 2000-16 January 2001), UN Doc S/2001/42,16 January 2001, para. 38. 32 'Cabinet Approves Regulations on Defence Force and the Registration of Political Parties', UNTAET Daily Press Briefing, 17 January 2001, available at www.un.org/peace/etimor/DB/Dbl 70101 .htm.

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Policy Committee, was established soon after the Office of the Inspector General was created to combat fraud in public administration.) Among the first activities of the Inspector General was an investigation into allegations of malfeasance in the recruitment of schoolteachers and payroll fraud in the Covalima district and audits into customs, the power sector, and the TFET. As part of the transitional administration, the Inspector General reported to the Transitional Cabinet which, in another accountability initiative, was given the authority to call upon officials of the ETTA to provide 'necessary and pertinent information'. The National Council, in turn, had the authority to request Cabinet members—including its international members—to appear before it.33 Finally, there is the World Bank's Inspection Panel, whose services are in principle available wherever the Bank has projects. The panel is a three-member body established in 1993 to investigate complaints from private citizens who claim that they have been adversely affected, in a direct and material way, by a Bank-financed project. Yet to date the panel has received no requests for inspection from citizens within international administrations.34 There may be little awareness of the existence of the panel, however, as it is not very active in promoting knowledge about its work among affected populations, in contrast with the ombudsperson of Kosovo, which conducts extensive outreach and information activities. Other important mechanisms of accountability are the various unofficial mechanisms, in particular the international and local media and NGOs. The international media have at times been influential in shaping perceptions within donor and other interested states that, in turn, have had bearing on international policy in the administered territories. The spotlight on alleged corruption, for instance, has at times been especially bright.35 International coverage, however, has tended to be episodic and, with the passage of time, less and less 33

UNTAET Regulation No. 2000/23, On the Establishment of the Cabinet of the Transitional Government in East Timor, 14 July 2000; and UNTAET Regulation No. 2000/24, On the Establishment of a National Council, 14 July 2000. 34 Author email exchange with Mr Serge Selwan, World Bank Inspection Panel, 4 February 2004. Details about the operations of the Inspection Panel can be found at http://wbln0018. worldbank.org/IPN/IPNWeb.nsf POpenDatabase. 35 See, for instance, Chris Hedges, 'Leaders in Bosnia are Said to Steal up to $1 Billion', New York Times, 17 August 1999. In this particular case the New York Times was reporting on findings by the OHR's own anti-fraud unit, which the OHR did not wish to publicize.

206 Accountability frequent. The local language radio services of the major international broadcasters, such as BBC, Deutsche Welle, Radio France Internationale, and ABC Radio Australia, however, have provided regular and sometimes probing coverage of the international administrations that has been valuable both for informing the local citizenry and for helping to promote high journalistic standards among the local media. The local media themselves have also been important for their coverage of the international administrations, and while the quality and accuracy of this reporting has been variable, there is some evidence to suggest that it, too, has influenced policy-making within the administrations.36 However, despite considerable amounts of funding expended in support of the local media, TAs have sometimes been slow to appreciate the importance of establishing an adequate regulatory framework to help develop effective local media. Although international policy-makers acknowledge the importance of freedom of expression as a fundamental human right, and, indeed, have often enshrined that freedom in basic local laws, the transitional administrations have sometimes been slow to adopt or promote adoption of the regulations necessary to facilitate the development of independent and responsible journalism—with, for instance, the promulgation of defamation legislation, the establishment of a transparent licensing regime, and the establishment of codes of practice, among other measures.37 International and local NGOs are also important mechanisms of horizontal accountability. Several international NGOs operate in the administered territories that are oriented specifically to oversight of the administrations—most notably, the International Crisis Group (ICG) and the European Stability Initiative (ESI).38 Many of the analysts working with these NGOs are well acquainted with the region, know the local languages, and, in some cases, have even served in the international administrations. Their analysis has helped to shape the perceptions of key diplomatic 'shareholders' in theatre, such as the US, Britain, and other governments' offices. Recognizing the value of ESFs analysis, the EU Pillar of UNMIK in the summer of 2001 invited the institute to establish a Lessons Learned and Analysis Unit within 36

Ahmed Buric, "The Media War and Peace in Bosnia', in Regional Media in Conflict: Case Studies in Local War Reporting (London: Institute for War and Peace Reporting, 2000), 71. 37 Ibid. 38 The reports of the two organizations can be found at www.crisisweb.org and www.esiweb.org respectively.

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the pillar to provide independent analysis of institution-building and development in Kosovo. Other international NGOs have concentrated on specific areas of international administration, such as human rights (Amnesty International, Human Rights Watch), refugees (US Committee for Refugees, Refugees International), and democratization (International Institute for Democracy and Electoral Assistance). Local NGOs have also sought to monitor and analyse the work of the territorial administrations and associated agencies—NGOs such as the Kosovar Institute for Policy Research and Development (KIPRED) and the East Timor Institute for Reconstruction Monitoring and Analysis (La'o Hamutuk).39 These and other organizations like them increase local understanding about international governance of their territories and thus enhance the capacity of the population to participate more effectively in the development process, although it is not evident that international officials have felt accountable to them in any meaningful way. Of course NGOs themselves are not always accountable to the local population (nor, for that matter, to national governments) for their actions.40 Moreover, they often employ differing criteria in their evaluations, not all of which may be apparent or commensurate with that of other agencies.41

The Limits of Accountability Mechanisms Important though these various mechanisms are, they can only mitigate the accountability deficit within an international administration— a deficit that, under the circumstances, however, is tolerated to 39

The reports of the two organizations can be found at www.kipred.org and http://etan.org/lh respectively. 40 Hugo Slim, 'By What Authority? The Legitimacy and Accountability of Non-Governmental Organisations', paper presented at the International Council on Human Rights Policy meeting on Global Trends and Human Rights— Before and After September 11, Geneva, 10-12 January 2002, posted on The Journal of Humanitarian Assistance, available at www.jha.ac/articles/a082.htm. See also Anthony Adair, 'A Code of Conduct for NGOs—A Necessary Reform', an Institute of Economic Affairs Website Discussion Paper, 1 October 1999, available at www.iea.org.uk/record.jsp?type=article&ID=l. 41 For a comparative assessment of evaluative reports—both NGO and official—of the humanitarian response to the 1999 Kosovo crisis, see Active Learning Network for Accountability and Performance in Humanitarian Action, Humanitarian Action: Learning from Evaluation (London: Overseas Development Institute, 2001).

208 Accountability a greater degree domestically and internationally than would ordinarily be the case within established democracies. The accountability deficit can manifest itself in many ways, some of which have been mentioned already, notably the concentration of power in a single individual or body and the absence of elections or other formal 'referenda' on international performance. Another, and arguably less justifiable way in which the deficit arises is in the lack of transparency. From the standpoint of the affected population, the process of international decision-making can seem opaque, notwithstanding laudable efforts by the international authorities to communicate via the publication of various newsletters, reports and press releases, and the convening of public meetings. Sometimes the simple fact that relevant documents are not always available in local languages creates a barrier to comprehension. The first UNMIK regulation provided that all UNMIK regulations would be published in English, Albanian, and Serbian but three years later, important regulations were still only available in English.42 There have also been considerable delays in publishing regulations and the tacit assumption that publication on the Internet is sufficient even though a large proportion of the population lacks access to computer services.43 As the Kosovo Ombudsperson has noted, 'International standards governing lawfulness thus continue to be flouted, as the "applicable law" remains inaccessible and fails to protect individuals against arbitrary action by the state.'44 Transparency is often also lacking with respect to international decision-making. Key decisions are frequently taken without sufficient explanation offered into the reasoning behind them. This practice, too, contributes to the impression of arbitrary rule. In relation to BiH, the ICG, in a 1996 report, made the following observation: Respect for Bosnian authorities and basic notions of reciprocity argue for at least the degree of transparency necessary for the Bosnian authorities and people to understand the basis for decisions, and the decision-making processes, that so affect them. If the point of the international encampment in 42

Ombudsperson Institution in Kosovo, Second Annual Report 2001-2002,2. Ibid. In East Timor, publication of the Gazette—the formal instrument for the publication of regulations—became increasingly irregular and lapsed altogether in 2001. See International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 4 (East Timor), para. 228. 44 Ombudsperson Institution in Kosovo, Second Annual Report 2001-2002,2. 43

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Bosnia is to 'teach' democracy, tolerance and good governance to the Bosnians then there is no better way to start than by example.45 This admonition is as apt today as it was then. The immunities that international officials enjoy further exacerbate the accountability deficit. Not only the international security forces, as noted above, but also international civil personnel may benefit from broad protection from domestic prosecution. UNMIK Regulation 2000/47, for instance, provides that all KFOR and UNMIK personnel shall be 'immune from any form of arrest or detention' and that all KFOR and high-ranking UNMIK officials shall be immune from local jurisdiction in respect of any civil or criminal act committed by them in the territory of Kosovo.46 This is not to say that international personnel operate in a legal vacuum: they are bound by the provisions of international human rights and humanitarian law. International personnel, however, are subject to the exclusive jurisdiction of UNMIK or, in the case of KFOR, their respective sending states.47 The ombudsperson, we have seen, has jurisdiction to investigate a range of complaints against UNMIK but these are very limited and it can only forward complaints against KFOR to KFOR for its consideration. Partly in recognition of the need to be more accountable, UNMIK established 'claims offices' to consider claims for compensation as a result of injuries or damages caused by the organization. However, UNMIK provides no opportunity for individuals to be represented by legal counsel and all decisions are taken by a panel of UNMIK staff members, against which the only possible appeal is a 45 International Crisis Group, 'Aid and Accountability: Dayton Implementation', ICG Bosnia Report No. 17, 24 November 1996,16. 46 UNMIK Regulation No. 2000/47, On the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo, 18 August 2000, Sections 2, 3. 'High ranking' officials are identified as the Special Representative of the Secretary-General, the Principal Deputy, and the four Deputy Special Representatives of the Secretary-General, the Police Commissioner, and 'other high-ranking officials as may be decided from time to time by the Special Representative'. KFOR is immune from local jurisdiction additionally in respect of any administrative act committed. 47 On 19 April 2004, for instance, the United Nations lifted the immunity of four Jordanian police officers serving with UNMIK in connection with the fatal shooting of two American correctional officers. See 'UN Lifts Immunity of Police Officers Connected to Deadly Shootings in Kosovo', UNMIK News, 19 April 2004, available atwww.unmikonline.org/news.htm. On KFOR accountability, see John Cerone, 'Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo', European Journal of International Law, 12/3 (2001), 469-88.

210 Accountability memorandum to the UNMIK Director of Administration.48 (KFOR has established similar offices but its appeals process, according to the ombudsperson, 'incorporates many elements of proper judicial proceedings'.) So sweeping are these immunities that the ombudsperson has felt constrained to criticize them in view of the fact that UNMIK is not an ordinary peacekeeping operation but a surrogate state: With regard to UNMIK's exercise of its executive and legislative powers for the purpose of granting itself and its security counterpart immunity, the Ombudsperson recalls that the fundamental precept of the rule of law is that the executive and legislative authorities are bound by law and are not above it. He further recalls that, therefore, the actions and operations of these two branches of government must be subject to the oversight of the judiciary, as the arbiter of legality in a democratic society. Finally, he recalls that these precepts govern the relationship between the state and the individual, who is the subject and not the object of the law. UNMIK Regulation 2000/47 [on the status, privileges and immunities of KFOR and UNMIK and their personnel] contravenes all of these principles.49 Indeed, the irony, as the ombudsperson points out elsewhere, is that as a consequence of living under UNMIK's rule, Kosovars lack the protections that derive from Belgrade's increasing acceptance of international human rights instruments, including its acceptance in 2001 of the right of individual petition to the UN Human Rights Committee, which reviews complaints under the International Covenant on Civil and Political Rights, and its accession to the Council of Europe in 2003, which means it can be expected soon to be subject to the jurisdiction of the European Court of Human Rights. '[Tjhe United Nations, the self-proclaimed champion of human rights in the world,' the ombudsperson observes, 'has by its own actions placed the people of Kosovo under UN control, thereby removing them from the protection of the international human rights regime that formed the justification for UN engagement in Kosovo in the first place.'50 48 49

Ombudsperson Institution in Kosovo, Third Annual Report 2002-2003,4. Ombudsperson Institution in Kosovo, 'Special Report No.l (Summary) on the Compatibility with Recognized International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000) and on The Implementation of the Above Regulation, 26 April 2001', in Ombudsperson Institution in Kosovo, First Annual Report 2000-2001. 50 Ombudsperson Institution in Kosovo, Second Annual Report 2001-2002, 5.

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Finally, as we saw in Chapter 8, the lack of transparency and the absence of appeals mechanisms combine in respect of the dismissal of local authorities. TAs all have it in their power to dismiss authorities in almost every position (mayors, judges, legislators, bank officials, and even presidents) who are deemed by the TA to be obstructing implementation of the international mandate. They are able to carry out these dismissals without offering any evidence in support of their actions and there is no scope for appeal on the part of the individuals affected. Lack of accountability sends the wrong message to a people whose democracy is still in its infancy. It also leaves the powers of the TA largely unchecked, as neither the Security Council nor the PIC concerns itself with close scrutiny of his or her decisions. What then is to prevent the unfair dismissal of local officials or the imposition of legislation that exceeds the requirements for state-building? The problem is not unique to any single territorial administration. All international administrations lack accountability mechanisms that ensure meaningful independent review and that allow also for significant local input into the review process. Measures can be taken to strengthen accountability. These measures are discussed in Chapter 11.

10 Exit Strategies

How is the transfer of power to the local population to be regulated and the exit of the international authorities achieved? This question, of course, does not pertain only to the international administration of war-torn territories. It can be asked of any operations where thirdparty intervention in a territory has resulted in the suspension of some or all of the territory's sovereign powers—as occurred, for instance, in Germany after the Second World War and in post-Saddam Iraq under US-led occupation. Indeed, for US administrators seeking to balance the need for stability against growing impatience and active resistance on the part of certain sectors of the Iraqi population, the transfer of power proved to be one of the most contentious issues. The UN Security Council has also been preoccupied with the question of exit strategy, both in relation to specific operations and more generally. The Council thus undertook, in an open debate on 15 November 2000 and in light of the many difficult operations that the Organization had conducted in the previous decade, to examine how and why it decides to close various peacekeeping missions. The Council in turn requested the Secretary-General to submit his own analysis and recommendations on the subject, which he did on 20 April 2001 in a report entitled, suggestively enough, No Exit Without Strategy.1 The debate and the report reflect increased understanding about the complex challenges of peacebuilding. The emphasis that both place on sustainable peace as an operation's ultimate objective marks a shift in focus away from singular events or outcomes that in the past, for instance, tended to treat free and fair multiparty elections as the 1

No Exit Without Strategy: Security Council Decision-making and the Closure or Transition of United Nations Peacekeeping Operations, UN Doc S/2001/394, 20 April 2001.

Exit Strategies 213 culminating point of international involvement in a conflict.2 Such was the case with respect to the conflict in Cambodia, where the United Nations viewed elections as 'essential to produce a just and durable settlement',3 and where the mission was thus designed for the principal purpose of organizing elections for a constituent assembly that would draft a new constitution, transform itself into a legislature, and then create a new Cambodian government.4 Yet while elections can certainly be useful for facilitating the transfer of authority from international to local actors and for establishing the legitimacy of local rule, post-election developments in Cambodia, Angola, and elsewhere show that they should not necessarily be regarded as the key to a lasting settlement.5 Even where international organizations are able to create the conditions that allow for the conduct of free and fair elections—and the United Nations and the Organization for Security and Co-operation in Europe (OSCE), in particular, now have considerable experience in this area—they may not promote national reconciliation. They can, rather, be extremely divisive, especially for territories where rival identity groups vie for political control.6 The experiences of recent international territorial administrations would seem to suggest that this lesson, at least, has now been learned. In none of these administrations can it be said that elections have represented the single focus of international involvement even if, in Eastern Slavonia and East Timor, elections paved the way for the drawdown of international resources. In both cases, as we will see later, successor missions and other follow-on arrangements to the transitional administration were established precisely to help ensure the consolidation of a fragile order. (Whether they have been successful in this regard is another question.) In Bosnia and Herzegovina (BiH) and Kosovo, meanwhile, international authorities have remained engaged in the administration of the territories well beyond the initial rounds of elections. 2

Charles T. Call and Susan E. Cook, 'On Democratization and Peacebuilding', Global Governance, 9/2 (2003), 237. 3 SC Res 745 (1992), 28 February 1992. 4 Janet E. Heininger, Peacekeeping in Transition: The United Nations in Cambodia (New York: Twentieth Century Fund Press, 1994), 34. 5 Mats R. Berdal, Whither UN Peacekeeping? Adelphi Paper 281 (Oxford: Oxford University Press/International Institute for Strategic Studies, 1993), 13. 6 Benjamin Reilly, 'Elections Post-conflict: Constraints and Dangers', International Peacekeeping, 9/2 (2002), 119.

214 Exit Strategies If devising effective exit strategies is a common challenge for peace operations generally, there are, however, significant differences that can make the question of exit a distinct challenge for international administrations. Perhaps the most important difference arises from the scope of the operation and the twin demands, therefore, of having to serve the public as a transitional administrator (TA) while at the same time seeking to incorporate all governmental functions into the public administration of a successor entity. As we saw in Chapter 4, unless sufficient emphasis is placed on strengthening local capacity, the emergent public administration may be very weak. To reduce this prospect requires both serious commitment on the part of the transitional authorities and adequate resources but also time. Mandated time limitations and pressures from either donors or the local population to transfer authority quickly may not allow sufficient time for the recruitment and training that is needed to build local capacity. A good exit strategy, then, depends on good entrance and intermediate strategies.7 An exit strategy cannot compensate, easily or at all, for major deficiencies in the design or implementation of a territorial administration. But by the same token, a poorly conceived exit strategy can jeopardize the achievements of an international administration and imperil the viability of the new state or territory. Exit, however, is not merely a technical matter, to be accomplished when requirements for sustainability have been achieved; it can also be a political matter, the pace of which may be determined by domestic and international factors that have little to do with the stability of the territory.

Phased Withdrawal To date there has been fairly limited experience with the termination of international administrations. Only the UN Transitional Administration for Eastern Slavonia (UNTAES), the UN Transitional Administration in East Timor (UNTAET), and the UN Transitional Authority in Cambodia (UNTAC), a supervisory operation, have been brought to a close. Several observations can be made on the basis of this limited experience, however. One relevant observation is the utility of a phased exit strategy, the pace of devolution being commensurate with 7

No Exit Without Strategy, para. 6.

Exit Strategies 215 the demonstrated ability of the local leadership to meet specified benchmarks. Such an approach was employed with some success by UNTAES. In the first phase of the exit strategy, the TA devolved responsibility to the government of Croatia for the major part of the civil administration in the region, maintaining the authority to intervene and, critically, to overrule decisions if necessary. The devolution of remaining executive functions was, in principle, subject to satisfactory performance on the part of the Croatian government. When for instance, as we saw earlier, the Tudjman government delayed issuing citizenship papers to Croatian Serbs, without which they would have been unable to vote, Jacques Paul Klein made it clear that he would not schedule local elections until all Serbs had received their documents. With the scheduling of elections conditional on the provision of documents, Tudjman was forced to comply with UN demands if he wished to make progress towards the restoration of Croatian sovereignty over Eastern Slavonia.8 The approach that Klein adopted more generally was to use the UNTAES-established Joint Implementation Committees (JICs) to negotiate the reintegration of Eastern Slavonia on an issue-by-issue basis and in such a manner so as to preserve and protect the rights of the Croatian Serb community.9 As the negotiations advanced, by this logic, UNTAES would in effect be putting itself out of a job. The negotiations did not always proceed satisfactorily, however, and UNTAES had to become directly involved in the process, using its authority to pressure both sides to agree on the terms of reintegration. With time running out, moreover, it was not always possible to draw up well-crafted legal documents. In a number of cases, therefore, what was drawn up instead were letters of agreement, declarations, or affidavits, which often lacked the precision of formal legal documents.10 For instance, the 'Affidavit on the Rights of Public Employees' that provided, among other things, employment and pension guarantees for Eastern Slavonia Serbs, was so lacking in detail that UNTAES felt it necessary to reinforce it with an accompanying Annex. In all, UNTAES negotiated and signed forty-three agreements concerning 8

Christine Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes: Legacy of the United Nations in Eastern Slavonia and Transitional Missions (Clementsport, Nova Scotia: Canadian Peacekeeping Press Publications, 2002), 115. 9 Robert J. A. R. Gravelle, "The United Nations Transitional Administration in Eastern Slavonia, Baranja, and Western Sirmium (UNTAES): A Successful United Nations Mission', unpublished manuscript (undated). 10 Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes, 107.

216 Exit Strategies the reintegration of public institutions in the region.11 Yet the Serbs, who did not trust Zagreb to honour its agreements, were scarcely reassured by the questionable legal status of some of these documents.12 The problem, in part, was that the mission's two-year time limit constrained UNTAES. Short of an imposed international custodianship, of course, there was little alternative to a fixed time limit, as Tudjman would not have agreed to a transitional administration of indefinite duration. But the time limit clearly made it difficult for UNTAES to negotiate adequate arrangements in some instances. Moreover, it did not allow UNTAES to play any part in holding the Croatian government to its pledges, and Zagreb subsequently failed to implement fully a number of its commitments, notably with respect to the amendment of property, amnesty, and citizenship laws that discriminated against Croatian Serbs.13 With the conclusion of the operation, however, the United Nations did not wash its hands of Eastern Slavonia entirely. As we will see below, it established its own follow-on police monitoring group while the OSCE, at the invitation of the Croatian government, was asked to oversee and monitor implementation of the reintegration commitments.14 Both initiatives have had some success, albeit limited, in maintaining pressure on the Croatian government to respect its pledges. The United Nations in Kosovo adopted a similar approach but unlike UNTAES the administration there has not been subject to fixed time constraints. In April 2002, TA Michael Steiner identified benchmarks that would have to be met before the United Nations would initiate negotiations on the final status of Kosovo, as UN Security Council Resolution 1244 mandates the interim administration to do eventually. Known as 'Standards before Status', the approach specifies targets in eight policy areas where progress is 11

Figure from United Nations, Department of Peacekeeping Operations, Lessons Learned Unit, The United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), January 1996January 1998: Lessons Learned (New York: UN Department of Public Information, 1998), para. 125. Many of the agreements are listed in Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l997/953,4 December 1997, Annex I. 12 Coleiro, Bringing Peace to the Land of Scorpions and Jumping Snakes, 107. 13 Sally Morphet, 'Current International Civil Administration: The Need for Political Legitimacy', International Peacekeeping, 9/2 (2002), 146. 14 Organization for Security and Co-operation in Europe Permanent Council, Decision No. 176,26 June 1997, Document No. PC.DEC/176.

Exit Strategies 217 required, notably functioning democratic institutions, the rule of law (police/judiciary), freedom of movement, returns and reintegration, the economy, property rights, dialogue with Belgrade, and the Kosovo Protection Corps.15 These standards, by Steiner's own admission, represent the beginnings of an exit strategy for Kosovo.16 A further elaboration of these benchmarks was provided by Steiner's successor, Harri Holkeri, on 10 December 2003, with an indication that a review of progress towards meeting the standards would be conducted in mid2005. Failure to achieve the standards would result in postponement of the negotiations, Holkeri warned: Tail them, and Kosovo will remain stuck, backward, left behind perhaps for decades to come/17 While Kosovo Albanian political leaders indicated their willingness to work towards achievement of the benchmarks, despite some unhappiness with the plan, Belgrade rejected the document, claiming that it implied conditional independence for Kosovo and thus violated Resolution 1244, which mandates a resolution of the status question but also affirms the commitment of the United Nations to the sovereignty and territorial integrity of Yugoslavia.18 And without Belgrade's cooperation, it may be impossible to meet at least some of the benchmarks. The outbreak of violence across Kosovo in March 2004, which left 19 dead, 950 wounded, and more than 3,000 displaced (most of them Serbs), gave renewed impetus to the status issue.19 Yet while the status quo may be untenable, there is also concern that as long as Kosovo Serbs and other minorities are not secure, independence would constitute an abandonment of international commitments. Even where international administrations are not subject to specified time constraints, they may not always be able to control the timing of their exit. By early 2001, little more than a year after the establishment of the UN administration in East Timor, frustration on the part of local leadership had reached a point where many of them were calling for a prompt withdrawal of the United Nations. Concerned 15

Benchmarks available at www.unmikonline.org/pub/focuskos/apr02/ benchmarks_tablefinal.pdf. 16 Michael Steiner, 'Standards before Status', Focus Kosovo, April 2002, 4-5, available at www.unmikonline.org/pub/focuskos/apr02/focuskleadl .htm. 17 Holkeri cited in 'UN Chief Unveils Kosovo Roadmap', Southeast European Times, 10 December 2003, available at www.setimes.com/html2/ enelish/031211 -SVETLA-001 .htm. " 'New Standards for Kosovo', Balkan Reconstruction Report, 15 December 2003, available at www.tol.cz. 19 'Which Way for Kosova?' RFE/RL Balkan Report, 8/12 (26 March 2004), available at www.rferl.org/reports/balkan-report/2004/03/12-260304.asp.

218 Exit Strategies about these pressures and the prospect of waning donor support, the United Nations decided to accelerate the political transition process, allowing only three months for the Constituent Assembly, elected on 30 August 2001, to draft, debate, and approve a constitution. In the event, the deadline was extended by another three months but as the date for independence had by then already been established, there was now very little time for the assembly to adopt the considerable amount of legislation that the new state would require. As Anthony Goldstone observes, 'Except from the point of view of a UN desirous of making as quick an exit as possible, this abbreviated process was clearly not optimal.'20 In BiH and Kosovo, where a sustainable peace has been less assured, calls for the withdrawal of the international authorities have been more uncommon although, in Kosovo especially, they are becoming more frequent. The danger is that a sudden shift in popular and elite opinion could catch the authorities unawares.

Follow-on Arrangements Another lesson that can be drawn from the limited experience to date is the importance of effective follow-on arrangements. This is a role for which regional organizations may be especially well suited. In Eastern Slavonia, UNTAES was succeeded by both a support group of 180 civilian UN police monitors that continued to report on the performance of the Croatian police in the region but also an OSCE mission that has been responsible for monitoring implementation of the agreements that the government of Croatia signed with UNTAES.21 With the termination of the Police Support Group on 15 October 1998, the United Nations transferred its monitoring activities to the OSCE.22 The responsibilities of the UN successor mission were, in fact, broader than that of police monitoring, which itself was very extensive. (The UN monitors were deployed to Croatian police headquarters and stations in the region where they maintained round-the-clock coverage of all police activities.) During the Police Support Group's nine months of operations, the United Nations also reported regularly 20 Anthony Goldstone, 'UNTAET with Hindsight: The Peculiarities of Politics in an Incomplete State', Global Governance, 10/1 (2004), 89. 21 SC Res 1145 (1997) of 19 December 1997 established the United Nations Police Support Group with effect from 16 January 1998. 22 Final Report of the Secretary-General on the United Nations Police Support Group, UN Doc S/l 998/1004, 27 October 1998, para. 2.

Exit Strategies 219 to the Security Council on Zagreb's implementation of the UNTAES agreements it had signed, progress in reconciliation, economic reconstruction, refugee returns, the functioning of municipalities, and other developments pertaining to the consolidation of peace following the termination of the UN administration.23 Although the United Nations was able to report that the government of Croatia was meeting many of its obligations—UN monitoring seems even to have enhanced police performance—there were a number of core issues that the United Nations was powerless to resolve, notably with regard to discriminatory legislation, reconciliation, and economic revitalization, all of which were impeding returns.24 The limitations inherent in a fixed-term operation were only too clear: had UNTAES been able to remain longer it might have enhanced the prospects of government compliance. The OSCE worked closely with UNTAES and the Police Support Group before the start of its mandate in the region, thus allowing it to become familiar with the principal issues, and its mission has also reported regularly—this time to member governments—on Croatia's progress towards meeting its international commitments. Governments, in turn, have been able to use the information to pressure Croatia to comply with its obligations. However, what progress has been made owes as much (if not more) to the collapse of the Tudjman regime in 2000 and the establishment of a successor government more interested in international and regional cooperation as it does to thirdparty pressure.25 Progress can also be explained by Croatia's eagerness to join the European Union and its willingness, therefore, to meet somewhat demanding political criteria. As a result, the OSCE has been able to report more favourably than had the UN successor mission, including on progress in the legislative and administrative frameworks for return, advances in property reconstruction, the strengthening of Croatia's minority rights regime, and police reform, among other significant developments. This latter observation points to two further lessons: the salience of contextual factors and the value of incentives 23

Report of the Secretary-General on the United Nations Police Support Group, UN Doc S/1998/500, 11 June 1998, and Report of the SecretaryGeneral on the United Nations Police Support Group, UN Doc S/l998/887, 23 September 1998. 24 Final Report of the Secretary-General on the United Nations Police Support Group, UN Doc S/1998/1004,27 October 1998. 25 Organization for Security and Co-operation in Europe, Mission to Croatia, 'Status Report No. 12', 3 July 2003, 1, available at www.osce.org/documents/ mc/2003/07/450_en.pdf.

220 Exit Strategies (in this case the prospect of membership in the various European organizations) when and where they are available. The 'tipping effect' that the possibility of entry into Europe may have for the Balkan countries has been noted earlier (Chapter 8). Obviously this is not a goal to which conflict territories everywhere in the world can aspire but similar regional incentives and disincentives (e.g. suspension of membership) may sometimes be available. It is in East Timor where the preparations for withdrawal and follow-on arrangements were the most developed. Serious planning for a successor mission started in early 2001, nearly one-and-a-half years before the termination of UNTAET.26 As a measure of the importance that the United Nations attached to the consolidation of peace and stability in East Timor, and in recognition of the substantial investment of resources that the United Nations had already made and still needed to make in the emerging state, it was agreed that funding for the successor peacebuilding mission would be achieved through the UN's assessed peacekeeping budget rather than through voluntary contributions—a highly unusual arrangement that would help to ensure adequate financial support for the successor mission.27 The experience of planning for the successor mission, the United Nations Mission in Support of East Timor (UNMISET), reflected a conscious attempt to overcome some of the problems encountered in planning for UNTAET and, moreover, to incorporate some of the recommendations made by the Panel on United Nations Peace Operations, whose report (the 'Brahimi Report') was issued in August 2000. The Brahimi Report had recommended, among other things, the establishment of Integrated Mission Task Forces (IMTFs) at the planning stage of an operation that would bring together individuals from the relevant departments and agencies to mirror the functions of the operation and coordinate the agencies involved.28 The East Timor IMTF was the first such body created (IMTFs would also be established subsequently for UN operations in Afghanistan and Liberia)29 but while the approach may be a sound one in principle, the impact of 26

International Policy Institute, A Review of Peace Operations: A Case for Change (London: King's College London, 2003), ch. 4 (East Timor), para. 337. 27 Ibid., para. 357. 28 Report of the Panel on United Nations Peace Operations (the 'Brahimi Report'), UN Doc A/55/505-S/2000/809, 21 August 2000, paras 198-217. 29 William J. Durch, Victoria K. Holt, Caroline R. Earle, and Moira K. Shanahan, The Brahimi Report and the Future of UN Peace Operations (Washington, DC: The Henry L. Stimson Center, 2003), 48.

Exit Strategies 221 the IMTF process on the actual planning of the East Timor successor operation is thought by many involved in the process to have been fairly negligible.30 The IMTF was only one of several parallel planning initiatives. Indeed, post-UNTAET East Timor can almost be said to have suffered from a surfeit of planning. In East Timor itself, in March 2001, UNTAET set up a working group on post-UNTAET planning, whose efforts the IMTF was established to assist. The working group was East Timor-led: it was chaired by the East Timorese head of the National Planning and Development Agency and included three members of East Timor's National Council, as well as the UN Development Coordinator and four international UNTAET staff.31 The working group was charged with conducting an audit of the skill levels and numbers of international personnel that would be required to support East Timor in the period immediately after independence. Then in May 2001 the UN Department of Peacekeeping Operations appointed a director of transition planning to draw up detailed recommendations, in consultation with the East Timorese people, for the successor mission.32 It, too, was tasked with determining international staffing needs post-independence. In response to East Timorese concerns that the estimate of international staffing needs was too low, yet another body—the UN Development Programme (UNDP)—was asked to conduct an additional study on the needs for international advisers. The UNDP study reached essentially the same conclusions as those of the director of transition planning, identifying ninety-six priority positions for UN civil advisers and an additional 200 international personnel to address poverty reduction and social and economic development. As a result of these various planning efforts, the United Nations devised a concept of operations and structure for a successor mission consisting of three components: a military component that would provide continued support for the external security and territorial integrity of East Timor while strengthening the capacity of the East Timor Defence Force to perform these functions itself; a civilian 30

Author interviews with UNTAET officials, Dili and London; and International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 351. 31 International Policy Institute, A Review of Peace Operations, ch. 4 (East Timor), para. 341. The following section draws from the East Timor chapter of this study. 3 * In accordance with SC Res 1338 (2001), adopted on 31 January 2001, which requested such recommendations.

222 Exit Strategies police component that would continue to provide executive policing and support the development of the East Timor Police Service; and a civilian component that would provide assistance to the emergent East Timorese government and public administration.33 It was envisioned that international personnel would devolve their responsibilities to the East Timorese authorities 'as soon as is feasible without jeopardizing stability and progress made' over a two-year period from the time of independence. However, continued weaknesses in the public administration and serious civil disturbances (including riots in Dili on 4 December 2002), many of which appeared to have been orchestrated by former militia, prompted the United Nations to revise its strategy, resulting in a slowdown in its downsizing and a reorientation of the international personnel.35 In light of these developments, Kofi Annan, in his report to the Security Council of 13 February 2004, recommended a twelve-month extension of UNMISET beyond 20 May 2004 for a further 'consolidation phase', which the Council approved.36 UNMISET has been one the most extensive successor missions that the United Nations or any other body has ever launched. This extraordinary commitment of resources reflects not only the enormous challenges that the newly independent East Timor was to face and the importance that the United Nations has attached to the establishment of a stable East Timor in which it had already invested considerable time, money, and expertise, but also the Organization's concern about its own prestige.37 Given the UN's unique role and unprecedented authority, the Organization has always known that—rightly or wrongly—it would be judged by how well East Timor fared as a new 33 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2002/80,17 January 2002, paras 76-94. 34 Ibid., para. 77. 35 The original plan envisioned a downsizing of the military component from 3,870 troops to 2,780 in July 2003 and to 1,750 in December 2003. The adjusted plan maintained the higher level through December 2003 with downsizing subsequently to 1,750. Meanwhile, an international police unit would be deployed for one year to respond to riot situations and additional training provided to the East Timor police to strengthen their crowd-control skills. See Special Report of the Secretary-General on the United Nations Mission in Support of East Timor, UN Doc S/2003/243, 3 March 2003. 36 Special Report of the Secretary-General on the United Nations Mission in Support of East Timor, UN Doc S/2004/117, 13 February 2004, para. 16. SC Res 1543 (2004), adopted on 14 May 2004, approved a six-month extension of UNMISET's mandate with a view to subsequently extending the mandate for a further and final period of six months. 37 Author interviews with UNTAET officials and foreign government representatives, Dili.

Exit Strategies 223 state. Although it is still too early to assess the effectiveness of the successor strategy, in the two-year period since independence there has been steady development of the East Timorese public administration, with the recruitment of East Timorese personnel allowing for the progressive drawdown of UN civil advisers. However, serious administrative deficiencies persist, notably in the financial, central management, and justice sectors. The latter sector remains particularly weak, as the Secretary-General observed in his report to the Security Council of 13 February 2004: Only 22 judges have been appointed in the country, and limited availability of public defence lawyers and of judges has greatly restricted or prevented the functioning of courts outside Dili... Long delays are experienced in issuing indictments and listing matters for trial, and many pre-trial detainees, including juvenile detainees, are held for long periods before they come to trial, including some for relatively minor, non-violent crimes. The court system also lacks efficient case management procedures and adequate implementation of human rights safeguards, including the right to appropriate legal representation, translation of proceedings to a language that is understood by all concerned, and lack of guaranteed access to relevant legal information.38 Part of the reason for these weaknesses in the public administration can be attributed to the fact that although 100 UN civil adviser positions were created and filled, only 118 of the 209 other international positions identified for support originally had been filled by January 2004 as a consequence of shortfalls in bilateral funding.39 However, the UN's own reluctance to 'Timorize' the civil administration early in its administration of the territory—as discussed in Chapter 4—is arguably also a contributing factor. Strides have also been made in the other two areas of the successor strategy—policing and defence—but fundamental problems have remained there as well. Although continued recruitment and training of a national police force would result in the complete handover of patrolling responsibility by December 2003, growing public complaints about police misconduct—including excessive use of force, corrupt practices, and violations of human rights—were raising questions about their professionalism.40 The more specialized police units, moreover—such as the Rapid Intervention Unit and the Border Patrol Unit—were still not fully operational. Here, too, as a result, the United 38

Special Report of the Secretary-General on the United Nations Mission in Support of East Timor, UN Doc S/2004/117,13 February 2004, para. 24. 39 40 Ibid., para. 21. Ibid., para. 38.

224 Exit Strategies Nations saw the need for further mentoring and monitoring in a consolidation phase after 20 May 2004. Similarly, while development of the Timorese armed forces was well under way, as of February 2004 they were still not capable of responding to security incidents without assistance and, moreover, the precise functions of the East Timor Defence Force had yet to be defined by law. Partly as a result, members of the East Timorese armed forces clashed with the East Timorese police on 25 January 2004, with the soldiers briefly detaining a number of police officers.41 The Secretary-General thus recommended maintenance of an international military presence for another year to ensure a stable environment while allowing for enhancement of the capacity of the East Timorese security agencies, improvements in the relationship of these agencies with their Indonesian counterparts, and an increase in local confidence in the security situation.42 These recommendations are consistent with the analysis contained in No Exit Without Strategy, where the Secretary-General recognized that in the case of partial achievement of an operation's objectives it may be necessary to remain in the field under an altered mandate. It has been somewhat easier to make the case for East Timor because the Secretary-General has been able to argue persuasively that the 'substantial investments of the international community' are at the risk of being 'squandered for lack of international attention and support for the new State'.43 Such appeals, however, cannot always be expected to succeed as donor states will be concerned to avoid open-ended commitments. Even the UN Secretariat itself is seemingly more willing now, in principle, to contemplate withdrawal in cases where 'the mission is not making a positive contribution and there are no apparent prospects for its doing so'.44 Finally, effective follow-up arrangements also have important economic dimensions. A significant aspect of withdrawal is its implications for the local economy. Although common to all peace operations, this problem is compounded in the case of international administration by the sheer size of the operation. The very considerable expenditure of resources in a region by international agencies and personnel can 41

Special Report of the Secretary-General on the United Nations Mission in Support of East Timor, UN Doc S/2004/117,13 February 2004, paras 8, 49. 42 43 Ibid., para. 50. No Exit Without Strategy, para. 43. 44 Ibid., para. 26. 45 Susan L. Woodward, 'Economic Priorities for Successful Peace Implementation', in Stephen John Stedman, Donald Rothchild, and Elizabeth M. Cousens (eds.), Ending Civil Wars: The Implementation of Peace Agreements (Boulder, CO: Lynne Rienner, 2002), 209.

Exit Strategies 225 produce distortions in the local economy as the demand for property, goods, and services suddenly increases. A poverty assessment for East Timor conducted in 2001, for instance, noted that wages were two to three times higher than wages in Indonesia for comparable employment as a consequence of international demand for local labour.46 Moreover, many of the goods and services in demand—notably restaurants, transport, and translation services—respond to the needs of an international clientele but do not correspond necessarily to local development needs. One reason, therefore, why it is important to exempt international personnel from local taxation schemes, despite the obvious attraction, is to avoid a major shortfall in revenue when the personnel withdraw. Beyond the need to be mindful of and seek to minimize the distorting effects of withdrawal, international administrations have a role to play in establishing a framework for development assistance. In the case of East Timor, the United Nations recognized that a high level of development assistance would be required during at least the first three years after independence.47 Working closely with the World Bank and donors but with the East Timor government eventually taking the lead, the United Nations launched a development planning process in January 2001 that led to the production of a National Development Plan (NDP) on 3 May 2002 under the auspices of an all-East Timorese National Planning Commission. A notable feature of the plan was that it was drawn up on the basis of extensive consultations with the local population—some 40,000 people, representing nearly 10 per cent of East Timor's adult population.48 The programme presented in the NDP emphasizes poverty reduction as the primary objective for development to 2020, with improvements in health and education earmarked for particular attention (climbing to 47 per cent of total government spending by FY 2006—well beyond the proportional allocations made by other countries in the region).49 While ambitious, the plan has been judged by the World Bank to be feasible, notwithstanding the Bank's concerns about being able to build sufficient capacity on which successful implementation in part will depend. 46

Michael Hopkins, 'Post-conflict Aid and Structural Employment Problems with a Focus on Wages', in Eugenia Date-Bah (ed.), Jobs After War: A Critical Challenge in the Peace and Reconstruction Puzzle (Geneva: International Labour Organisation, 2003), 431. 47 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc S/2002/432,17 April 2002, para. 100. 48 World Bank, 'Background Paper for Donors' Meeting on East Timor, Dili, 49 14-15 May 2002' (undated), 2-3. Ibid., 9-10.

226 Exit Strategies In Eastern Slavonia, by contrast, the UN's follow-up arrangements did not extend to economic development even though it was apparent that development would be an important factor in creating an environment supportive of refugee returns. As the Secretary-General pointed out in his September 1998 report, 'the Security Council [had] entrusted UNTAES with the responsibility of assisting in the coordination of the development and economic reconstruction of the region', but UNTAES relied principally on the government of Croatia for any economic development planning during and after the UN administration.50 This was not entirely unreasonable as UNTAES had authority over a region that was to be re-integrated with Croatia and, as noted earlier, it would have been difficult under the circumstances for UNTAES to pursue any economic development agenda without the active support and participation of the government of Croatia. In the absence of a governmental strategy for regional development, however, it did mean that there was little assistance that UNTAES could offer.

Measuring Success The fact that territorial administrations may not terminate sharply but, rather, may be succeeded by various follow-on initiatives, raises at least one question about how we evaluate the success (or not) of these operations. Should we judge these operations by what they were able to achieve by the end of their mandates or by the processes that they were able to initiate in that time? With respect to East Timor, for instance, the United Nations has been faulted for giving birth to the poorest state in Asia.51 Yet it must also be recognized that UNTAET negotiated hard—and successfully—with Australia on behalf of East Timor to conclude a treaty governing the exploitation of oil and gas reserves in the Timor Sea, an achievement all the more notable given that there was no precedent for the United Nations negotiating as a government with a member state of the United Nations.52 Under the terms of the treaty, revenues generated within the Joint Petroleum Development Area are to be split 90:10 in East Timor's favour.53 In a few years these reserves 50

Report of the Secretary-General on the United Nations Police Support Group, UN Doc S/l 998/887,23 September 1998, para. 30. 51 Jarat Chopra, 'Building State Failure in East Timor', Development and Change, 33/5 (2002), 999. 52 Jonathan Steele, 'Nation Building in East Timor', World Policy Journal, 53 19/2 (2002), 82. Timor Sea Treaty, 20 May 2002, Art. 4(a).

Exit Strategies 227 are expected to yield several billion dollars in royalties for Dili—or even more, depending on the outcome of remaining boundary disputes with Australia.54 In addition to negotiating the Timor Sea Treaty, the United Nations and other international agencies, as we have just seen, assisted East Timor in the formulation of its NDP—a credible programme (in the World Bank's estimate) for the promotion of equitable growth and the reduction of poverty over an eighteen-year period.55 Similar considerations, we saw in Chapter 3, pertain to UNTAES as regards the return of internally displaced persons (IDPs). By the end of the UN's mandate in December 1997, 30,000 Croatian Serbs had registered as IDPs, out of an estimated 48,000 Serbs displaced to Eastern Slavonia from elsewhere in Croatia, of which only 9,000 had actually returned to their homes. The 9,000 figure represents 53 per cent of the 17,000 Croatian Serbs who had expressed a wish to return—a rather unimpressive result. However, if one extends the timeframe to September 1998, as many as 15,000 Croatian Serb IDPs (or 88 per cent of those expressing a wish to return) had by then returned to their homes.56 UNTAES, it would seem, deserves some credit for this positive trend beyond its mandate. By a more demanding standard, however, one might ask why did so few Croatian Serbs register as IDPs—and fewer still express a wish to return— and how much responsibility does the United Nations bear for this lack of volition? Similarly, how much (if any) responsibility does the United Nations bear for the outflow of Croatian Serbs resident in Eastern Slavonia (some 16,000 out of a total of 67,000) during the time that the region was under UN administration?57 54 Report of the Secretary-General on the United Nations Mission in Support of East Timor, UN Doc S/2003/944,6 October 2003, para. 49; 'E Timorese Accuse Australia of Delay in Boundary Talks', Financial Times, 27 November 2003. 55 World Bank, 'Background Paper for Donors' Meeting on East Timor, Dili, 14-15 May 2002'. 56 15,000 is the high end of the OSCE estimate of 10-15,000. The Croatian government estimate is even higher: 23,343 Serb returnees from the Danube region. Figures from Jelena Smoljan, 'Socio-Economic Aspects of Peacebuilding: UNTAES and the Process of Peaceful Reintegration of Eastern Slavonia' (D.Phil thesis, International Relations, University of Oxford, 2004), ch. 7. 57 '[Third] Report of the OSCE Mission to the Republic of Croatia on Croatia's progress in meeting international commitments since May 1998', 8 September 1998, para. 23. The European Community Monitoring Mission (ECMM) figure was even higher: it estimated that more than 40 per cent of the region's Serb community left the region in the two years that it was under UN administration. '[First] Report of the OSCE Mission to the Republic of Croatia on Croatia's

228 Exit Strategies An international administration's record by the end of its mandate can also be assessed in relation to what it might have achieved—in terms of opportunities not seized, in other words. Thus, for instance, it seems in retrospect that had UNTAET attached a higher priority to the development of public administrative capacity, some of the deficiencies now plaguing East Timor might have been avoided or at least minimized. Similarly, earlier recognition of the need for a strategy of demobilization and reintegration of the Falintil guerrillas might have led to the development of a more capable defence force by the time of UNTAET's withdrawal. In Eastern Slavonia, meanwhile, UNTAES sought to reintegrate the public administration, utilities, and other infrastructure but it could have done more to reintegrate the population—through, for instance, ethnic desegregation of the schools and the incorporation of reconciliation programmes in the workplaces.58 UNTAES was well aware of the need for such programmes; in his report to the Security Council of 2 October 1997, the Secretary-General observed: Of fundamental concern is that no attempt had been made by the Government of Croatia to lead and support a national programme of reconciliation and confidence-building. The political leadership had yet to prepare the population, at a minimum, to coexist peacefully and to begin to rebuild functioning multi-ethnic communities in the region. The need for such a programme is evident to avoid ethnic harassment, in the region and throughout Croatia, as displaced persons return home.59

What a transitional authority is able to achieve by the end of its mandate will also depend, in part, on how that mandate has been interpreted, and with operations as complex as these, interpretations will naturally vary. In the case of Eastern Slavonia, for instance, while it is true that the Basic Agreement gave the United Nations the authority to 'govern' the region, the fact is that UNTAES did not have the resources to govern the region properly, nor was there the expectation among UN officials that it would do so—although in retrospect, and alongside other 'executive' administrations, it is progress in meeting international commitments since January 1998', 20 May 1998, para. 48. 58 Smoljan, 'Socio-Economic Aspects of Peacebuilding', ch. 8. 59 Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium, UN Doc S/l 997/767,2 October 1997, para. 50.

Exit Strategies 229 60

tempting to impute such an interpretation. The use of the term 'govern' allowed the TA to exercise sometimes very broad authority but neither the Basic Agreement nor the relevant UN legislation always specified precisely what UNTAES was to achieve. The relative brevity of both UN Security Council Resolutions 1037 (Eastern Slavonia) and 1272 (East Timor), in contrast with the very detailed Dayton Agreement, allowed some latitude of interpretation and thus flexibility, which transitional authorities have generally welcomed, notwithstanding concerns about ambiguity as a result. However, it has also meant that these authorities are vulnerable to the criticism of interpreting their mandates in a narrow, self-serving manner. There are, of course, many other factors that are relevant to the evaluation of transitional administrations. For instance, with operations as multi-faceted as these, which performance indicators are the most pertinent ones? And where hoped for transformations may take years, even decades, to achieve, what is the appropriate time frame for evaluation? International exit—whether partial or complete—raises particular questions about measuring success but it also highlights the difficulties more generally of assessing operations as complex as the international administration of war-torn societies.61

60

Derek Boothby, 'The Political Challenges of Administering Eastern Slavonia', Global Governance, 10/1 (2004), 41. 61 On the difficulties of evaluating the success of peace operations generally, see George Downs and Stephen John Stedman, 'Evaluation Issues in Peace Implementation', in Stedman, Rothchild, and Cousens (eds.), Ending Civil Wars, 44-54.

11 Enhancing Effectiveness

Since the end of the Cold War, the United Nations's and other organizations' increased assumption of responsibility for conflict management—including, but not limited to, the administration of war-torn territories—has spawned a vast literature concerned with ways of strengthening international and regional capabilities to meet these new challenges. The United Nations has itself contributed significantly to the debate, most notably with the report of the Panel on United Nations Peace Operations (the 'Brahimi Report') published on 21 August 2000.1 The report, in turn, has been the basis for potentially far-reaching reforms that the UN Secretariat, with the support of some member states, has begun to introduce subsequently. At a regional level, too, institutional changes have been taking place that may allow the European Union in particular, but other regional groupings as well, to respond more effectively to the challenges of conflict management in their own backyards and farther afield. Measures are also being pursued by individual national governments to redress institutional and other deficiencies in this area. There is no dearth, then, of imaginative, indeed practical, proposals and initiatives for the enhancement of peace operations, and while the Brahimi Report—the centrepiece of the current debate—deals only briefly with the challenges specific to international territorial administration,2 much of its analysis and many of its recommendations have broad relevance to the subject. Other ideas, more in keeping with secular trends that favour greater reliance on the private sector, deserve consideration too. This final chapter takes stock of recent 1

Report of the Panel on United Nations Peace Operations, UN Doc A/55/5052 S/2000/809,21 August 2000. Ibid., paras 76-83.

Enhancing Effectiveness 231 policy initiatives that seek to enhance the capacity of international administration; it also identifies deficiencies likely to remain and suggests steps that could be taken to remedy them. Weaknesses in three key areas—the planning and management of operations, the rapid deployment of assets (particularly in relation to the provision of internal security), and the 'polities' of international administrations—account for some of the more serious shortcomings associated with these initiatives. There are other issues that affect international and regional organizations' capability for carrying out operations of this nature but overcoming weaknesses in these three areas in particular would contribute significantly to enhancing the effectiveness of international administration.

Planning and Management of Operations Among the principal international actors concerned, only the United Nations and its associated agencies have established structures and procedures that, even if not designed for the purpose, lend themselves to the administration of war-torn territories. All the others rely on ad hoc arrangements—reflected, for example, in the set-up of the Office of the (PIC-appointed) High Representative (OHR) for Bosnia and Herzegovina (BiH). Nevertheless the United Nations, we have seen, has experienced numerous difficulties in planning and managing these operations. The Organization is seldom prepared for the worst, its missions are often planned hurriedly, and support for them tends to be insufficient long after their initial deployment. These difficulties arise in part from resource constraints, organizational structural impediments, and procedural inflexibility. Many of these areas—chronic problems for the United Nations—have been the targets of renewed reform efforts in recent years by the UN Secretariat. Inadequate resources, particularly within the Department of Peacekeeping Operations (DPKO), have contributed significantly to the litany of problems described in this study. At the time the Brahimi panel released its report, expenditures for DPKO staffing and related costs for planning and maintaining all peacekeeping operations were projected to be a mere 2 per cent of these operations' total cost. The report observed, 'A management analyst familiar with the operational requirements of large organizations, public or private, that operate substantial field-deployed elements might well conclude that an organization trying to run a field-oriented enterprise on two per cent central support costs was undersupporting its field people and very likely

232 Enhancing Effectiveness burning out its support structures in the process.'3 As a result, the panel recommended a substantial increase in resources for central support of peacekeeping operations, which the General Assembly approved in December 2000, leading to the establishment of ninety-three additional posts in DPKO.4 In October 2001 the General Assembly's Advisory Committee on Administrative and Budgetary Questions agreed to the establishment of a further ninety-two posts for DPKO. Together, these new posts represent a 50 per cent increase over pre-Brahimi staffing levels.5 The Department of Political Affairs (DPA) has sometimes also played an important part in planning operations—notably in East Timor—but it received only two new posts in the period 1999-2003.6 Although in future DPA is expected to focus more on political analysis and less on operations, it nevertheless will require additional resources if it is to be able to perform its reporting capabilities effectively. Adjusting staffing levels alone, of course, will not provide the United Nations with the capacity for more effective planning: a fundamental shift in thinking within the Organization is needed as well. Just as military alliances and many state ministries engage in various forms of forward planning, so should the planning capabilities of DPKO, DPA, the Office for the Coordination of Humanitarian Affairs (OCHA), and other relevant UN offices be enhanced to enable them to respond more effectively to actual or prospective crises. The Brahimi panel had recommended the creation of a central information and strategic analysis unit to gather information about conflict situations and to formulate long-term strategies for dealing with them.7 Although the Secretary-General endorsed this recommendation, the General Assembly's Special Committee on Peacekeeping Operations has been less enthusiastic—a reflection of the concern of some member states, particularly developing countries, that such a unit might 3

Report of the Panel on United Nations Peace Operations, UN Doc A/55/505S/2000/809,21 August 2000, para. 172. 4 GA Res 55/238 (2000), adopted on 23 December 2000. 5 Implementation of the Report of the Panel on United Nations Peace Operations: Report of the Advisory Committee on Administrative and Budgetary Questions, UN Doc A/56/478,16 October 2001, para. 99. 6 William J. Durch, Victoria K. Holt, Caroline R. Earle, and Moira K. Shanahan, The Brahimi Report and the Future of UN Peace Operations (Washington, DC: The Henry L. Stimson Center, 2003), 57. 7 The panel recommended the establishment of an Information and Strategic Analysis Secretariat to be located within the Executive Committee on Peace and Security. See Report of the Panel on United Nations Peace Operations, paras 65-75.

Enhancing Effectiveness 233 be used for intelligence-gathering purposes and even to facilitate military interventions.8 Similar concerns, together with resource constraints, also prevent the United Nations from undertaking detailed contingency planning of the kind that the North Atlantic Treaty Organization (NATO), for instance, was able to conduct in anticipation of its involvement in BiH and Kosovo. (The Independent Inquiry into Rwanda cited the lack of contingency planning as one of the factors that contributed to the UN's failure to prevent genocide there.)9 To compensate for these weaknesses, the United Nations might consider engaging the services of research centres and private think tanks to assist in the formulation of strategic plans, as foreign and defence ministries sometimes do. These plans would need to be updated periodically in response to changing circumstances. The European Union now has machinery that could, with some expansion, also allow it to conduct planning of this kind.10 In October 1999, a Policy Planning and Early Warning Unit (PPEWU), as called for by the Amsterdam Treaty, was established within the European Council.11 The PPEWU, which comprises diplomats drawn from the EU member states, officials from the Council Secretariat, and one military officer with WEU/NATO experience, drafts position papers and 'think pieces' for the High Representative for Common Foreign and Security Policy, currently Javier Solana. Its work is complemented by the European Union Military Staff Organisation (EUMS), whose establishment the European Council approved at its Nice summit in December 2000.12 The EUMS performs early warning, situation assessment, and strategic planning for the so-called Petersberg tasks: humanitarian and rescue tasks, peacekeeping tasks, 8

Durch et al, The Brahimi Report and the Future of UN Peace Operations, 39. The Inquiry recommended '[increasing preparedness to conduct contingency planning, both for expected new peacekeeping operations and to meet possible needs to adjust mandates of existing operations'. See Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/1999/1257,16 December 1999,56. 10 For a discussion of the institutional framework for European Security and Defence Policy, see Jolyon Howorth, European Integration and Defence: The Ultimate Challenge? Chaillot Paper 43 (Paris: European Union Institute for Security Studies, November 2000), 32-7. 11 'Declaration on the Establishment of a Policy Planning and Early Warning Unit', Treaty of Amsterdam, Declaration No. 6,2 October 1997. 12 'Presidency Report', Nice European Council Meeting, 7-9 December 2000, Annex V. The EUMS was established on 22 January 2001 with Council Decision 2001/80/CFSP. 9

234 Enhancing Effectiveness and combat-force tasks in crisis management, including 'peacemaking' (i.e. peace enforcement).13 The European Union agreed subsequently, in December 2003, to establish a cell within HUMS to carry out strategic advance planning of joint civil/military operations.14 An institutional basis for contingency planning thus now exists within the European Union, although European officials have been at pains to demonstrate to Washington that the development of such planning capacity—separate from NATO—will remain limited and therefore not weaken the Transatlantic Alliance.15 In recent years the United Nations has also introduced a number of structural changes that could strengthen its capacity to plan and maintain complex operations. Although modest, measures to improve communication between DPKO and DPA—including the establishment of ad hoc interdepartmental working groups (e.g. on the Great Lakes and the Balkans) and the decision to co-locate the departments' respective regional divisions—are likely to enhance information-sharing.16 DPKO and DPA remain fiercely protective of their respective territories, however, and a more sensible measure would be to merge the two into a single department—a recommendation that the UN Secretariat has long resisted—or, at the very least, to define more carefully the roles of the two departments with respect to complex emergencies that require a coordinated response.17 DPKO's assumption of responsibility for the management of peacebuilding operations in Angola and Afghanistan in October 2002 is indicative of efforts to implement such a division of labour.18 Much more important for coordination and collaboration has been the Secretariat's commitment to the establishment of Integrated Mission Task Forces (IMTFs). As discussed in Chapter 10, IMTFs 13 The Petersberg tasks were agreed at a ministerial meeting of the Western European Union in Petersberg, near Bonn, on 19 June 1992. 14 'Presidency Conclusions of the Brussels European Council (12 and 13 December 2003)', Document No. 5381/4, Brussels, 5 February 2004. 15 Charles Grant, 'Europe can sell its defence plan to Washington', Financial Times, 2 December 2003. 16 Implementation of the Recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations: Report of the Secretary-General, UN Doc A/55/977, 1 June 2001, paras 234-8. 17 The latter recommendation is proposed in Marrack Goulding, 'Practical Measures to Enhance the United Nations' Effectiveness in the Field of Peace and Security', report submitted to the Secretary-General of the United Nations, New York, 30 June 1997, paras 12.10-12.13. 18 Durchetal., The Brahimi Report and the Future of UN Peace Operations, 59.

Enhancing Effectiveness 235 are meant to bring together personnel from the many relevant departments, agencies, funds, and programmes to plan and manage complex operations under the authority of a single coordinator, who reports either to the Under-Secretary-General for Peacekeeping Operations or to the Under-Secretary-General for Political Affairs, depending on the nature of the operation.19 As originally conceived, the IMTF team is to comprise at its core one or two political officers involved from the start in pre-mission negotiations, one representative each from the humanitarian and development fields with specific field knowledge of the mission area, one military and/or civilian police officer, and one representative from the administrative and logistics support area.20 A 'proto-IMTF' was established in March 2001 to plan for the postUNTAET international follow-up presence in East Timor, while the first real IMTF was set up in late 2001 to plan the UN operation in Afghanistan. As the latter experience suggests, however, it remains to be seen whether IMTFs can have sufficient executive authority to be able to harmonize UN agency participation. As a report by the Henry L. Stimson Center observes, the Afghanistan IMTF played largely an advisory rather than a decision-making role in part because its members were not senior enough; it lacked logistical support of its own (such as office space for members seconded from other places); it had little direct contact with the pre-existing country team based in the region; and the UN's Special Representative for Afghanistan— Lakhdar Brahimi himself—had the authority to act independently of the IMTF.21 There can be no template for an operation as complex as a transitional administration; however, 'best practices' and 'errors' can be distilled from past experiences, and efforts can be made to disseminate this knowledge within organizations and to develop standard operating procedures on the basis of them. The idea of distillation reflects the thinking that underlay the establishment in April 1995 of the Lessons Learned Unit within DPKO, now called the Peacekeeping Best Practices Unit. But for many years the unit was not very effective. Its studies remained largely unread, or even unpublished (in the case of UNPROFOR), with UN staff having little time or inclination to consider them, as they did not seem pertinent to the specific operational 19 Report of the Secretary-General on the Implementation of the Report of the Panel on United Nations Peace Operations, UN Doc A/55/502,20 October 2000, 20 paras 49-66. Ibid., para. 53. 21 Durch et al., The Brahimi Report and the Future of UN Peace Operations, 49 (sidebar 6).

236 Enhancing Effectiveness requirements of current or future missions.22 In early 2003, however, the unit was reinvigorated: under new and field-experienced leadership, it began to compile best practices in many of the key functional areas (corrections, police, rule of law, military planning, and mission evacuation), to complete work on a Handbook on Multidimensional Peacekeeping Operations, and to place these and other materials on a searchable electronic database that personnel in headquarters, field missions, regional organizations, and training institutions worldwide will be able to consult.23 These developments may make it possible for the unit to play a more important role in imparting institutional knowledge more widely. However, it would also be useful if the unit were to have the authority to examine and offer comment on relevant planning and operational documents in much the same way that the accounting divisions of large organizations have the responsibility to scrutinize proposed financial expenditures. To develop standard operating procedures on the basis of challenges as diverse and complex as those of international administrations may seem an impossible and even misguided task, but certain structural and procedural characteristics are already being replicated informally. For instance, the design and function of consultative mechanisms adopted first by the UN Interim Administration Mission in Kosovo (UNMIK) and then by the UN Transitional Administration in East Timor (UNTAET) are very similar, and the profile of civilian specialists used for operations of this kind is in many respects the same. The question is whether these experiences provide a model for future operations. To the extent that they do—and this is one area where further study would be useful—they can serve to facilitate rapid deployment of a mission, the absence of which has been one of the principal weaknesses of international administration. Standard operating procedures already exist for military and humanitarian operations; there is no reason why they could not also be developed for some of the other aspects of transitional administrations—allowance being made, however, for the unique characteristics and requirements of each operation.

Rapid and Effective Deployment The rapid and effective deployment of human resources and material to a distressed region is vital to the success of any peace operation, but it is 22 Author interviews with UN field personnel in UNTAES, UNMIK, and UNTAET. 23 Durch et al., The Brahimi Report and the Future of UN Peace Operations, 41.

Enhancing Effectiveness 237 particularly important for the international administration of war-torn territories. The sheer scope of the operation means that there is more chance for failure (or at least the perception of failure), because there are numerous fronts on which transitional authorities must operate simultaneously. Moreover, many of these areas are closely interrelated. Without adequate detention centres and trained personnel to administer them, for instance, police and judicial efforts to maintain law and order will be seriously compromised—as they were in Kosovo, where limited detention facilities in the early days resulted in the release of convicted criminals to make room for 'harder' criminals.24 Also, the leverage of international officials is at its height in the early phase of a mission, and the credibility that may be lost as a consequence of the slow and inefficient deployment of resources is often very difficult to regain. International administrations require the rapid deployment of military personnel, civilian police, civilian specialists, and large stocks of equipment. Yet in the past the UN Standby Arrangements System (UNSAS), by which governments agree to make military assets available to the United Nations at seven, fifteen, thirty, sixty, or ninety days' notice, and the pre-positioning of essential equipment at the UN Logistics Base at Brindisi, Italy, have not been adequate to ensure an effective response to the requirements of operations of this kind. The requirements of international administrations can easily dwarf available supplies, and UNSAS arrangements do not bind governments to provide troops for a given operation. Indeed, it is only because of the urgency attached to the three Balkan operations by NATO and to East Timor by Australia that it was possible to achieve a rapid deployment of troops in those cases. With respect to the rapid deployment of civilian police and civilian specialists, the United Nations and regional organizations are even less well prepared. The United Nations has taken several steps in recent years to improve the current situation, as have member states jointly and singly. As suggested by Brahimi, the Secretary-General has sought to draw up an on-call list of 154 experienced, well-qualified military officers, a small number of whom (nine) would be available for deployment on seven days' notice—first to New York, for mission guidance, and then to the field, where they would constitute the nucleus of the mission's headquarters; the balance would be available on fourteen days' 24

On the inadequacy of detention facilities, see Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc S/2000/177, 3 March 2000, para. 114.

238 Enhancing Effectiveness notice.25 Personnel selected for inclusion in this core group would be pre-qualified, pre-trained, and prepared to serve for a period of up to two years. In the spring of 2001 the Secretary-General began to communicate the profiles of expertise required and to canvas member states to nominate officers, yet by the end of 2002 the Secretary-General still did not have a sufficient number of nominations.26 Even if he succeeds in establishing a reliable on-call list (similar efforts have failed in the past), a core group of 154 will hardly be large enough to establish and maintain security in a war-torn territory; and the goal of ninety days for the full deployment of a complex peace operation, which Brahimi recommended and the Secretary-General has endorsed, will be extremely difficult to meet.27 Yet in the absence of a UN standing army, a more rapid and effective response may not be realistic. Hence continued use of 'lead nations' or 'coalitions of the willing' may be necessary for this purpose, even though this will likely mean the loss of UN oversight and control. Several regional organizations have, in fact, been seeking to equip themselves with rapid military deployment capability. EU member states, in December 1999, committed themselves to the 'headline goal' of being able to deploy, by 2003, up to 50-60,000 persons within sixty days capable of performing the Petersberg tasks discussed above.28 On 19 May 2003, the European Union declared that it now had operational capacity across the full range of Petersberg tasks, 'limited and constrained by recognized shortfalls', however.29 Already the European Union had deployed military forces to Macedonia (March 2003), at the request of the Macedonian government, and subsequently to the Democratic Republic of Congo (June 2003), as authorized by the UN Security Council.30 On 15 October 2003, NATO launched its own rapid response force—a 9,000 strong force, under British command, that NATO claims is capable of deployment to trouble spots anywhere in the world within five days. (When it 25

The Secretary-General's original recommendation was for 100 military officers to be available on seven days' notice. See Implementation of the Recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations, paras 128-9. 26 Durch et al., The Brahimi Report and the Future of UN Peace Operations, 76. 27 Report of the Panel on United Nations Peace Operations, para. 88. 28 'Presidency Conclusions', Helsinki European Council, 10-11 December 1999, Annex 1 to Annex IV. 29 'Declaration on EU Military Capabilities', EU Capability Conference, 30 Brussels, 19 May 2003. SC Res 1484 (2003) adopted on 30 May 2003.

Enhancing Effectiveness 239 achieves full capability, by October 2006, the force is expected to comprise 21,000 troops.)3 The African Union (AU), the successor to the Organization of African Unity, has also committed to establishing a regional army—as many as five brigades of soldiers, police officers, and military observers totalling 15,000 persons—to respond to violent conflict on the continent.32 In view of the reduced contributions of troops by developed states to UN operations in recent years, especially in Africa, and the prevalence of armed conflict in the region, an AU force—if indeed operational—would mean that African states would be less reliant on outside assistance to put a halt to warring.33 It is the challenge of policing that transitional authorities have been least well equipped to meet, and this is one area where future demand is likely to be great, even if the number of international administrations does not increase. If we can expect continued incidence of intra-state conflict across the globe, deploying police officers to war-torn societies in response to this threat will be much less controversial for national governments, and in many ways more appropriate, than deploying soldiers. The inadequate supply of police officers to serve in international operations, and the fact that many of them may be poorly qualified, means that special measures must be adopted to enlarge the pool of available candidates and to enhance the standard overall. Brahimi had recommended that states establish national pools of active police officers, supplemented if necessary by capable retired officers, who would be trained to a common (UN) standard and who could be made available in the context of the UN's standby arrangements. As with military officers, Brahimi also suggested the creation of an on-call list of 100 police officers ready to be deployed at seven days' notice.34 Towards that end, the Secretary-General defined the profiles of necessary expertise, as well as the associated logistical and other support requirements (for instance, forensic experts and labs), for a phased 31

'NATO Launches Rapid Force', BBC News (World edition), available at http://news.bbc.co.Uk/2/hi/europe/3194348.stm. 32 'Solemn Declaration on a Common African Defence and Security Policy', Assembly of the Union, 2nd Extraordinary Session, 27-28 February 2004, Sine, Libya; 'How to Put the House in Order', The Economist, 11 March 2004. 33 No Western country (excepting Poland) was represented among the top twenty UN troop and police contributors as of 30 April 2004. For details about contributions to peace operations, see DPKO's 'Monthly Summary of Contributions', available at www.un.org/Depts/dpko/dpko/contributors. 34 Report of the Panel on United Nations Peace Operations, paras 118-26.

240 Enhancing Effectiveness deployment within ninety days,35 and in August 2002 began to canvas member states. While many states made offers, as of October 2003 the number of qualified candidates was still not sufficient.36 Meanwhile, DPKO has sought to develop 'Principles and Guidelines for United Nations Civilian Police Operations' in an effort to establish common standards and operation procedures,37 but the Department has been hampered by a lack of member state feedback.38 Finally, to enhance the cohesion of the different police components within an operation, Brahimi recommended the establishment of joint training initiatives.39 With this in mind, the European Union has begun to work with the United Nations to establish joint training standards, procedures, and planning while Britain has launched joint training programmes in Latin America, Africa, and Asia, involving up to ten countries in each case.40 Even before the release of the Brahimi Report, the European Union had undertaken to enhance its capacity to provide police officers for international peace operations, including post-conflict international administrations. At a meeting of the European Council at Santa Maria da Feira on 19 and 20 June 2000, EU member states agreed to establish, by 2003, the capacity to provide 5,000 police officers to international missions across a range of crisis-prevention and crisis-management operations, from advising, training, and monitoring local police to executive policing. As many as 1,000 of these officers were to be available within thirty days.41 These forces were to be 'robust', integrated, and interoperable units, which could be deployed in response to a request from an international or regional organization, such as the United Nations or the Organization for Security and Co-operation in Europe (OSCE), or as an autonomous EU police operation. EU ministers meeting at the Civilian Crisis Management Capability Conference in Brussels on 19 November 2002 35

Implementation of the Recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations, para. 132. 36 Durch et al, The Brahimi Report and the Future of UN Peace Operations, 81. 37 Report of the Secretary-General on the Implementation of the Report of the Panel on United Nations Peace Operations, para. 95. 38 Durch et al, The Brahimi Report and the Future of UN Peace Operations, 80. 39 Report of the Panel on United Nations Peace Operations, para. 123. 40 'Joint Declaration on UN-EU Co-operation in Crisis Management', 24 September 2003; and author interview with Foreign and Commonwealth Office official, London. 41 'Presidency Conclusions', Santa Maria da Feira European Council, 19-20 June 2000, Appendix 4.

Enhancing Effectiveness241

were able to confirm that the goal had not only been met but had been exceeded.42 As of July 2003, 3,121 EU police officers were already serving in international missions, 2,432 of them in the Western Balkans. The United States, under President George W. Bush, has been less supportive of efforts to enhance civilian policing internationally. Presidential Decision Directive (PDD) 71, promulgated by President Bill Clinton on 24 February 2000, directed the State Department to establish a $10-million programme to pre-screen and train an estimated 2,000 US police officers for participation in international missions— some two-and-a-half times the number of US police officers serving abroad at the time.43 The 2,000 were to constitute a pool from which to draw, and to rotate, police officers. However, the fate of the directive is uncertain: the Bush administration has shown little enthusiasm for the initiative, funding for which Congress had already approved. Yet adequate training is sorely needed: US reliance on a private company—DynCorp Technical Services—to recruit police to serve in international missions has led in the past to the deployment of highly unqualified personnel, although US police officers are generally far from the weakest in any mission.44 The European Union's proposed deployment of up to 1,000 police officers within thirty days, while indeed rapid, may nevertheless be too slow to prevent the emergence of a security vacuum in a crisis area, as the situation in Iraq after the fall of Saddam Hussein in 2003 made abundantly clear. Hence, where they may be deployed before police officers (as in Kosovo and East Timor) or alongside them, international military forces must be trained and willing to assume greater law-enforcement responsibilities. As discussed in Chapter 2, Allied soldiers accepted such a role in Germany after the Second World War: a special constabulary force of 30,000 US soldiers was established in January 1946 to carry out policing and riot control—a task they performed reasonably well.45 Similarly, Australian forces deployed to East Timor assumed responsibility for law and order on an interim 42

'Ministerial Declaration Adopted by the Civilian Crisis Management Capability Conference', Brussels, 19 November 2002. ^ Office of International Information Programs, US Department of State, 'Summary of Presidential Decision Directive 71', 24 February 2000, available at www.fas.org/irp/offdocs/pdd/pdd-71-l.htm. As of October 2001, nearly 850 US police officers were serving in international peace operations, making the United States the largest police contributor at that time. 44 See 'Misconduct, Corruption by US Police Mar Bosnia Mission', Washington ?05t,29May2001. 45 Lucius Clay, Decision in Germany (London: William Heineman, 1950), 65.

242 Enhancing Effectiveness basis pending the arrival of UNTAET. For those forces that have specific civilian police experience—the Italian Carabinieri, the Spanish Guardia Civil, and the French Gendarmerie—the challenge is by no means an alien one. The US State Department, in its White Paper on FDD 71, acknowledged the need for US soldiers, too, to conduct law-enforcement activities in peace operations for a limited period of time until civilian organizations are able to assume responsibility for these tasks.46 The use of military personnel for this purpose underscores the importance of developing an interim legal code that all soldiers can employ pending the establishment of local rule of law. The UN Secretary-General, acting on a recommendation of the Brahimi panel, appointed a working group to study the issue but the group concluded that such a code would not be feasible. The US Institute of Peace, however, produced a draft code that it began to circulate for review in 2003.47 In addition to training in interim legal measures, it is also worth considering compulsory language training for all international personnel—military or civilian—who perform police duties, in light of the close engagement they can expect to have with the local community. Kenyan forces underwent language training in basic Tetum before their deployment to East Timor and this earned them considerable respect among the residents. The rapid deployment of civilian specialists and material, unlike the other categories of resources, is hampered especially by cumbersome procedures relating to the recruitment of personnel and the procurement of goods. In the case of the United Nations, decisions on hiring and firing staff and disbursing funds are, for the most part, centralized in New York. But the scale of operations as large as UNMIK or UNTAET, and the many critical areas requiring prompt attention as a result, means that international administrations suffer more than other peace operations as a consequence of these practices: 'It is like being asked to perform Olympic gymnastics and then being placed in a straitjacket', Vieira de Mello once observed.48 As regards goods, 46

Office of International Information Programs, US Department of State, 'White Paper: The Clinton Administration's Policy on Strengthening Criminal Justice Systems in Support of Peace Operations', 24 February 2000, available at www.fas.org/irp/offdocs/pdd/pdd-71 -4.htm. 47 DurchetaL, The Brahimi Report and the Future of UN Peace Operations^. 48 Sergio Vieira de Mello, 'How Not to Run a Country: Lessons for the UN from Kosovo and East Timor', unpublished manuscript (copy on file with author).

Enhancing Effectiveness243 at the time these missions were established, it could take anywhere from seventeen to twenty-seven weeks to procure vital equipment such as communications equipment, generators, heavy vehicles, office furniture, and prefabricated buildings.49 And as far as recruitment goes, DPKO recruitment officers have many more posts to fill and therefore applications to process than any other UN agency—indeed, eleven months after the UN Security Council voted to establish UNTAET, the mission was still not fully staffed.50 These kinds of problems have plagued UN peacekeeping operations for years. There is the further related problem that rules regarding personnel recruitment and the use of funds and assets are too restrictive for the operational requirements of an international administration. For instance, the United Nations and other multilateral organizations— concerned to achieve geographic balance—will often avoid hiring many staff from a single country where the relevant expertise is available, even though delays or spectacularly poor appointments may otherwise result. And while strict regulations on the use of funds and assets make good sense in terms of central managerial oversight, they deny transitional authorities the flexibility they need to be able to respond effectively to conditions on the ground. (Again, given the complex and dynamic nature of the situation, this can be more problematic for international administrations than for other peace operations.) The local population, moreover, is generally not able to comprehend the failure of their 'trustees' to expend allocated funds promptly to deal with obvious and urgent needs and may grow resentful in the face of apparent indifference. Some measures are being taken to address these related problems. The Secretary-General recommended (and the General Assembly accepted) an enhancement of the UN Logistics Base at Brindisi to allow for the pre-purchase and maintenance of some of the most critical items ('Strategic Deployment Stocks') needed for rapid deployment to support one complex peace operation. Remaining items and services— such as strategic lift, fuel, rations, and water—are to be purchased through contractual arrangements (with governments and designated suppliers) before the adoption of a Security Council resolution establishing a new mission.51 It was pre-purchased goods and services that made possible the relatively quick deployment of the UN Mission in 49

Report of the Panel on United Nations Peace Operations, para. 153. Author interview with senior UNTAET official, Dili. 51 The Concept of Strategic Deployment Stocks and Its Implementation: Report of the Secretary-General, UN Doc A/56/870,14 March 2002, para. 5. 50

244 Enhancing Effectiveness Ethiopia and Eritrea (UNMEE) in September 2000. This was an accident of fate, however, because the goods and services had been acquired for another mission (to the Democratic Republic of the Congo) that was delayed.52 With respect to personnel, Brahimi suggested establishing a roster of civilian specialists in a variety of skill areas who, having indicated that they would be available on short notice, would be vetted, interviewed, medically cleared, and provided with the basic orientation applicable to field service—all in advance.53 The United Nations has since established an Internet system, known as the Galaxy Project, which, when more fully developed, will allow the Office of Human Resources Management to receive applications online, screen them on the basis of established criteria, and automatically rank candidates in accordance with job requirements. The system will also enable applicants to update their personal histories and availability periodically.54 Another way to eliminate the deficiencies of the present system would be to entrust individual states with responsibility for whole sectors of territorial administration—a variation on the 'lead nation' concept. Some members of the East Timorese leadership, for instance—notably those who had lived in exile in Australia—indicated that they would have been happy to have had Australia alone train the territory's entire civil service.55 As with standby military and police officers, producing a roster of civilian specialists requires identification of the different occupational groups that an international administration tends to need and definition of the associated skill requirements. Greater delegation of authority to the field is also needed to enhance the effectiveness of international administrations, although central oversight of operations needs to be maintained. The OHR operates principally from the field and the United Nations has already experimented successfully with relocating recruitment personnel from New York to Kosovo, thereby reducing hiring delays and vacancy rates and also allowing field administrators more input into the recruitment 52

Implementation of the Recommendations of the Special Committee on Peacekeeping Operations and the Panel on United Nations Peace Operations, para. 118; and UNMEE Military Observer Teams Complete Initial Deployment, UN Doc No. UNMEE/PR/3,25 September 2000. 53 Report of the Panel on United Nations Peace Operations, para. 130. 54 Report of the Office of Internal Oversight Services on the Audit of the Policies and Procedures of the Department of Peacekeeping Operations for Recruiting International Civilian Staff for Field Missions, UN Doc A/56/202,20 July 2001, paras 11-14. 55 Author interviews with East Timorese local leadership, Dili.

Enhancing Effectiveness245 process. UN transitional administrators (TAs) also need greater flexibility in managing their budgets. UN rules make it difficult for a mission to expend resources on anything other than the mission itself. This may not be problematic for most peace-support operations, but it would be helpful for an operation whose purpose is to facilitate the emergence of a new state, or at least to promote substantial autonomy, to permit the use of UN resources—buildings, computers, vehicles— by fledgling indigenous institutions. UNTAET had over 500 vehicles for use by its own staff, but UN regulations, had they been strictly observed, would have prevented any of them being made available to East Timor's senior political leaders.56 UN procurement rules should also be revised to allow TAs greater authority to buy goods and services directly, rather than through New York. (The current ceiling on acquisition in the field is $200,000 per purchase order; Brahimi argued for raising this ceiling to up to $1 million.)57 There is no reason why the United Nations cannot follow the example of the World Bank, which oversees billions of dollars of procurement locally by national governments and their agencies each year. And where possible, goods and services should be purchased locally: between them, Russian, American, British, and French firms accounted for nearly 40 per cent of all peacekeeping-related procurement contracts in 2002.58 Political Factors Conflating international administrations with complex peace operations tends to obscure some of the fundamental political issues at the core of these initiatives. These distinctive issues need to be acknowledged and, in some cases addressed more directly, if TAs are to be able to make better-informed and more legitimate choices concerning the post-conflict reconstruction and development of a territory. Moreover, as with many other aspects of multilateral conflict management, these initiatives—and the efforts to enhance them—are hostage to the processes of international politics from which they spring. No international administration can function without having a political vision, implied or stated, for the society it is administering. Yet how does a TA give concrete expression to such notions as 'democratic development', 'multi-ethnic society', 'peaceful 56

Author interview with senior UNTAET official, Dili. Report of the Panel on United Nations Peace Operations, para. 168. 58 Durch et al., The Brahimi Report and the Future of UN Peace Operations, 96 (table 6). 57

246 Enhancing Effectiveness coexistence', and 'political diversity', among the other various advertised mission objectives? (Bernard Kouchner claims to have read the text of UN Security Council Resolution 1244 twice every morning in a vain attempt to understand what was meant by the term 'substantial autonomy'.)59 There are obviously many options available to transitional authorities within the broad confines of their mandates, and the ramifications of the choices they make are potentially far reaching. Whose opinion should count in these matters? International transitional authorities cannot function as governments answerable primarily to the people whose territories they administer. International trusteeships are not representative democracies; they are institutions created and sustained by international processes, which, though themselves democratically deficient in certain respects,60 establish a legitimate basis and the parameters for the exercise of international authority. Moreover, in the face of threats to the peace that local authorities bear the responsibility for having created, or a humanitarian emergency that exceeds the capacity of the local population to cope, one can justify a partial or complete suspension of sovereignty, at least temporarily. Notwithstanding these considerations, greater effort needs to be made to ensure accountability to the local population, otherwise an operation will suffer from a deficit of legitimacy. Consultation with representatives of the local community is already a priority for most transitional authorities: UNMIK established the Kosovo Transitional Council within a week of the mission's start, and it was UNTAET's second regulation that set up a National Consultative Council. The question arises, however, with whom should a transitional authority choose to consult? As we saw in Chapter 5, Sergio Vieira de Mello established close ties with the National Council of Timorese Resistance (CNRT) and its president, Xanana Gusmao, in particular, undoubtedly reinforcing Gusmao's power and leading some observers to argue that the United Nations was prejudicing the political process. Indeed it was, as UN officials readily admit: CNRT and Gusmao were considered to be interlocutors who could be counted on to work with the United Nations in support of its aims, and UNTAET 59

Simon Chesterman, 'Kosovo in Limbo: State-Building and "Substantial Autonomy"', Report of the International Peace Academy, August 2001, 4. 60 For discussion of the UN's democratic deficit and proposals to remedy it, see Michael Renner, Critical Juncture: The Future of Peacekeeping, Worldwatch Paper 114 (Washington DC: Worldwatch Institute, 1993), 54-8; and Vicenc Fisas, Blue Geopolitics: The United Nations Reform and the Future of the Blue Helmets (London: Pluto Press, 1995), chs 1,2.

Enhancing Effectiveness247 thus felt comfortable attributing a predominant partnership role to CNRT, which, moreover, enjoyed very broad popular support. In Kosovo the situation was different. There the UN's main interlocutor initially was Hashim Thac.i, the leader of the Kosovo Liberation Army (KLA), who was committed to achieving independence for Kosovo through violent means if necessary. The United Nations had little choice but to deal with Thac.i, given the KLA's power, but it sought to dilute his influence and to temporize, in the hope that Ibrahim Rugova (the more 'moderate' leader of Kosovo, then in Rome) would return to the province and draw support away from his radical rival.61 These may be prudent and necessary calculations for an enterprise as inescapably political as an international administration, but they risk putting international officials in the awkward position of choosing sides, and thus alienating elements of the population. On the other hand, to say 'let the process decide' begs the question of which processes to adopt— because, as we have seen, institutional design (for instance, electoral procedures) often has significant implications for political outcomes. These are not matters that the local population can always decide. There are, though, other mechanisms that can strengthen accountability. One is enlarging the institution of the ombudsperson. Complaints against any official, local or international, can be filed with Kosovo's and East Timor's ombudspersons, but these officials are concerned principally with the protection of human rights. However, the ombudsperson could conceivably be empowered to receive and investigate complaints from citizens about the process of international administration as well—for instance, procedural improprieties, bias, or the lack of due process—and make recommendations to the transitional authority on the basis of his or her findings.62 The ombudsperson would not be able to strike down legislation but the recommendations would be likely to carry some weight. There is precedent for such an enlargement of responsibilities: elsewhere ombudspersons deal with complaints across the whole spectrum of governmental activities.63 The more fundamental problem is that too often TAs view 61 Author interviews with UNMIK officials. Rugova can be said to be more moderate only because of his rejection of violence. He shares the same goals as Thac.i. 62 For the role and functions of the 'classical' ombudsman, see Donald C. Rowat, The Ombudsman: Citizens'Defender, 2nd edn. (London: George Allen & Unwin, 1968). 63 Roy Gregory and Philip Giddings, 'The Ombudsman Institution: Growth and Development', in Roy Gregory and Philip Giddings (eds.), Righting Wrongs: The Ombudsman in Six Continents (Amsterdam: IOS Press, 2000), 8.

248 Enhancing Effectiveness the ombudsperson as an irritant rather than as a vital institution. A high-profile appointment may help to enhance the stature of the office but the problem is not an easy one to resolve. A second mechanism for strengthening accountability is expanded jurisdiction of the local high courts. As these courts demonstrate that they are capable of deciding issues in a fair and impartial manner, they might be given authority to review the transitional authority's exercise of powers if and when these seem to be incompatible with locally enacted legislation. The Constitutional Court of Bosnia and Herzegovina, for instance, has jurisdiction over issues concerning whether a law is compatible with the constitution, international human rights law, and general rules of public international law.64 In November 2000, for the first time, the court reviewed a decision of the HR (regarding the creation of a unified border service for BiH), which—though the legislation was found to be in conformity with the constitution—established a precedent for a local institution challenging the legality of an international act.65 Before local courts can assume more authority, however, it may be necessary to amend the international legislation defining the powers of the TA to allow for judicial review. Finally, international officials might find it instructive to revisit some of the parallel experiences of the past. Under the League of Nations administration of the Saar Basin, for instance, the League Council followed the work of the Governing Commission closely and intervened on at least one occasion—in reaction to a decree restricting civil liberties—to check the authority of the Commission.66 In addition, the League had a dedicated supervisory body, the Permanent Mandates Commission (PMC), whose principal role was oversight of mandatory administrations. Under the UN Trusteeship system, there is also a dedicated supervisory body—the Trusteeship Council— that has had responsibility for the review of reports submitted by the administering authority of trust territories.67 The Trusteeship Council 64

Constitution of Bosnia and Herzegovina, Art. VI. 'Constitution Watch: Bosnia and Herzegovina', East European Constitutional Review 10/1 (2001), available at www.law.nyu.edu/eecr/vollOnuml/ constitutionwatch/bosnia.html. 66 Steven R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (Basingstoke: Macmillan, 1995), 92-3. 67 For a discussion of the supervisory roles of the Permanent Mandates Commission and the Trusteeship Council, see Neta C. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (Cambridge: Cambridge University Press, 2002), chs 6, 7. 65

Enhancing Effectiveness249 can also accept petitions from inhabitants of the trust territories and from third parties as well, marking an innovation over the functioning of the PMC.68 In theory a similar function could be performed by an ad hoc body that the Security Council would establish. (The Security Council already oversees the work of international administrations but the burdens on the Council mean that its oversight is cursory.) Some have even suggested revival of the Trusteeship Council to administer war-torn territories.69 While the idea of a dedicated body that would be responsible for these tasks is worthy of consideration—Brahimi, too, saw possible merit in the general idea70—the use of the Trusteeship Council for this purpose would be fraught with difficulties. Not only would it require Charter revision, as the UN Charter does not allow the application of the trusteeship system to member state territories,71 but also the association of the Trusteeship Council with colonialism could render the notion politically unpalatable.72 The idea of a dedicated supervisory body, moreover, points to a dilemma for the United Nations that the Brahimi panel noted in its report: while on the one hand, greater institutionalization of UN responsibility in this area would clearly strengthen the capacity of the United Nations to administer territories more effectively, institutionalization would also create expectations that the United Nations should be employed to undertake more and more operations of this kind.73 Neither the Secretariat nor many member states are particularly keen to facilitate an expansion of this sort of activity, however. And yet, failure to institutionalize responsibility means that the United Nations will find itself responding to these particular challenges in an ad hoc fashion, notwithstanding the considerable experience that the Organization has acquired. 68

UN Charter, Ch. XIII, Art. 87. Peter Lyon, 'The Rise and Fall and Possible Revival of International Trusteeship', Journal of Commonwealth & Comparative Politics, 31/1 (1993), 105-8; Matthias Ruffert, "The Administration of Kosovo and East Timor by the International Community', International and Comparative Law Quarterly, 50/3 (2001), 631; International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), 5.22. 70 Report of the Panel on United Nations Peace Operations, para. 78. 71 UN Charter, Ch. XII, Art. 78. 72 Simon Chesterman, 'Virtual Trusteeship', in David M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Boulder, CO: Lynne Rienner, 2004), 222. 73 Report of the Panel on United Nations Peace Operations, para. 78. 69

250 Enhancing Effectiveness As well as being more accountable, TAs need to be more restrained as the political institutions and culture under their supervision mature. Gerald Knaus and Felix Martin suggest use of the notion of 'red lines'—the specification of limits beyond which the TA's exercise of power should not be allowed—and a mechanism whereby the red lines can be independently monitored and enforced.74 Alternatively, a TA's use of authority in particular areas might be subjected steadily to the approval of a majority of members, including minority members, of the local executive (exception being made for truly emergency measures). As the International Crisis Group observes in relation to BiH: 'Such a stratagem might enhance the relevance of the state and accustom the executive to wielding power and assuming responsibility as the end of the OHR draws near/75 After all, local authorities will have to assume responsibility eventually for the management of their own affairs, and a gradual rather than sudden relinquishment of international responsibility would ease the transition. Mindful of the weaknesses, some serious, that have arisen in the context of the international administration of war-torn territories and peace operations generally, the United Nations, other international organizations, and national governments have pledged to renew their efforts at institutional reform. There is no a priori reason for supposing that many of the proposals identified above—operational and political—cannot be implemented. The Brahimi Report, among other high-profile exercises in self-criticism, has already generated meaningful support for change. Pending further reform, however, the scope for the effective management of complex emergencies of the kind explored on these pages will remain limited.

74

Gerald Knaus and Felix Martin, 'Travails of the European Raj', Journal of Democracy, 14/3 (2003), 71. 75 International Crisis Group, Thessaloniki and After II: The EU and Bosnia', Balkans Briefing, 20 June 2003,11.

Conclusions

In his inaugural speech as High Representative, Paddy Ashdown reflected on the strides that had been made in the context of the post-war rehabilitation of Bosnia and Herzegovina (BiH): 'Building peace after war is no easy thing1, Ashdown observed. 'If my home of Northern Ireland had made as much progress in thirty years as BiH has made in six, the conflict there would have been over much sooner.' Despite these achievements, Ashdown continued, 'huge problems confront us'.1 Ashdown may have been overstating the progress that BiH has made but he was not overestimating the difficulty of "'post-conflict peacebuilding'—a term that itself obscures the extent of the difficulty insofar as conflict often persists long after the warring has ended. However, if tall challenges call for tall responses, the international administrations of Eastern Slavonia, Kosovo, and East Timor, together with BiH, certainly represent some of the boldest experiments in the management and settlement of intra-state conflict ever attempted by the United Nations and other third parties. While it is still too early to pass final judgement on these initiatives (with the exception of UNTAES and UNTAET, they represent 'works in progress'), some partial conclusions can nonetheless be drawn. The experiences examined here suggest that several factors enhance the likelihood of success of an operation of this nature, if success is measured broadly in terms of substantial progress towards eliminating or significantly reducing the threat of violent conflict, achieving a durable political settlement, and establishing viable state or territorial institutions. The first of these factors is favourable objective conditions. Where parties to a conflict either face or have suffered 1

Inaugural Speech by Paddy Ashdown, State Parliament of Bosnia and Herzegovina, Sarajevo, 27 May 2002.

252 Conclusions a decisive military defeat, they will have fewer opportunities to resist the authority of an international administration, and may even welcome it as their best hope of securing some measure of protection and representation in a successor regime. The prospect of defeat by the Croatian Army no doubt induced the Croatian Serbs to work with the international authorities in Eastern Slavonia, however begrudgingly, just as actual defeat had done in the cases of Nazi Germany and Imperial Japan.2 By contrast, the absence of a decisive military victory by any of the warring parties in BiH constrained the architects of Dayton in the formulation of treaty terms that all parties would accept, rendering it difficult to establish well functioning state institutions—a problem that plagues the High Representative to this day.3 Third-party states are sometimes in a position to help mould the conditions under which international authorities will function as administrators: for instance, by allowing or even abetting one side to gain the strategic advantage in a conflict. They must be careful, however, to ensure that, when the fighting is over, they are equipped— and willing—to disarm and demobilize local armed forces as necessary so as to guard against residual resistance. Otherwise international authorities may only be able to play a supervisory role at best and violence will flourish when the authorities withdraw. Such was the case with the US-led multinational force (MNF) in an enforcement operation that restored Haiti's President Jean-Bertrand Aristide to power in September 1994 and then remained another six months 'to establish and maintain a secure and stable environment'.4 While some effort was made by the MNF to seize and buy-back light weapons, the force made no serious attempt to disarm the rival factions and the island state soon became awash in weapons again.5 The attitudes of regional powers make up a further component of objective conditions. If these powers seek to exploit the internal turmoil for their own advantage, international efforts at territorial administration may be seriously undermined.6 Without the support of 2 On Germany and Japan, see Karin von Hippel, Democracy by Force: US Military Intervention in the Post-Cold War World (Cambridge: Cambridge University Press, 2000), introduction. 3 Wolfgang Petritsch, 'Bosnien und Herzegowina fiinf Jahre nach Dayton', Sudosteuropa Mitteilungen, 40/4 (2000), 297-312. 4 SC Res 940 (1994), adopted on 31 July 1994, authorized the deployment of 5 the multinational force. Von Hippel, Democracy by Force, 117-19. 6 On 'opportunistic interventions' by regional powers, see Michael E. Brown, 'The Causes and Regional Dimensions of Internal Conflict', in

Conclusions 253 China, the Soviet Union, Vietnam, and the ASEAN states, for instance, UNTAC in Cambodia would have been unable to operate effectively at all.7 Similarly, the determination of the Croatian and Serbian governments to achieve a peaceful reintegration of Eastern Slavonia helped to ensure that UNTAES would succeed—at least with respect to this limited objective. Geography matters too. A small territory is often easier to administer than a large one, where it is more difficult to establish a secure environment unless international soldiers and police are deployed in very large numbers. The RAND Corporation estimates that an operation needs some twenty soldiers for every 1,000 inhabitants to stabilize a territory: in Iraq, that would have meant nearly half a million troops or three-and-a-half times the coalition force as of April 2004.8 The second factor that may affect the ease or difficulty of administering a war-torn territory is the clarity and appeal of operational aims. Where the aims are well defined and attract broad support among the local population, the administrative authority enjoys distinct advantages, as it did in East Timor. It may not always be possible to achieve a clarity of aims that all parties will support, however. When the local political elite or third parties, or both, do not share a common vision for the future, it may be necessary to establish interim arrangements and defer a decision about the final outcome until a later date, in the hope that with time a mutually acceptable political settlement can be achieved. Of course, there is a risk that in the interim period local actors will seek to create 'facts on the ground* in an effort to prejudice a determination about the final outcome—as Kosovo Albanians have sought to do in their continued violence against Kosovo Serbs. For this reason it is all the more important that international authorities are able to establish a safe and secure environment for all persons. There is also a risk that the local population will grow frustrated with the interim arrangements—as, again, has occurred in Kosovo, where the United Nations is seen increasingly by Albanians to be not a vehicle but an impediment to independence. Where a negotiated Michael E. Brown (ed.), The International Dimensions of Internal Conflict (Cambridge, MA: MIT Press for the Center for Science and International Affairs, 1996), 571-601. 7 Jin Song, 'The Political Dynamics of the Peacemaking Process in Cambodia', in Michael W. Doyle, Ian Johnstone, and Robert C. Orr (eds.), Keeping the Peace: Multidimensional UN Operations in Cambodia and El Salvador (Cambridge: Cambridge University Press, 1997), 53-81. 8 James F. Dobbins, 'America's Role in Nation-building: From Germany to Iraq', Survival, 45/4 (2003-04), 105.

254

Conclusions

outcome is not feasible, the alternative to adopting interim measures— the imposition of a settlement—may also alienate a significant portion of the population and create incentives for spoilers. However, it must be recognized that in some cases parties to a conflict may refuse to accept any settlement or interim measures that fall short of their maximum goals. A clear political endpoint does not necessarily mean a precise time frame. Indeed, too strict a timetable can work against the achievement of an operation's objectives (arguably this was the case in Eastern Slavonia). Rather than seek to establish a new modus vivendi, local parties may dig in their heels until the international authorities have departed, or they may agree to make concessions but then fail to implement them. An international civil and military presence of indefinite duration may thus be necessary until a new and more conciliatory political elite emerges. If it does not, an international security force may suffice to keep the peace (as it has in Cyprus for forty years), although missions of long duration with dim prospects for a political settlement are unlikely to attract sustained international support. On the other hand, if third-party states choose to withdraw their support altogether they risk triggering renewed hostilities. The type of operation also has implications for the ease or difficulty of administration. A supervisory operation—one that relies largely on the cooperation of the local parties for successful implementation of its mandate—is vulnerable to obstructionism if any of the parties chooses to reject the agenda of the international authorities. A transitional administration that has full executive authority is better equipped to meet this challenge. While it may not always be necessary for administrators to exercise full authority—and they should seek to devolve as much responsibility to the local population as feasible—without such authority, they are more likely to find local actors frustrating their efforts to achieve the aims of their mandates. The difficulty lies in determining where, in practice, to establish the balance between the competing demands of international responsibility, on the one hand, and local ownership of the process, on the other. Moreover, any agency that has extensive authority must be carefully controlled to insure against abuses of power. Critics of international administration maintain, with some justification, that checks on the exercise of international authority have been lacking and that accountability to the people on whose behalf these administrations have been established has been inadequate. There need to be better safeguards against the abuse of power as well as opportunities for more meaningful engagement on the part of local partners.

Conclusions 255 Finally, the structure of the operation—notably, the degree of authority (civil and military) invested in the transitional administrator, and the relationship between the administrator and the component organizations—also has considerable bearing on the success of an operation. Unified authority, strong coordination, and a willingness by headquarters to delegate responsibility to the field, all enhance a transitional authority's capacity to administer a war-torn territory effectively. These are not the only factors that contribute to the success of an international administration. The readiness of states and organizations to plan early and deploy sufficient resources rapidly also have enormous consequences for an operation. Effective leadership matters, too. These requirements extend well beyond the framework of any single operation and point to the need for broader institutional reform. Ultimately, however, it is for the local population and its leadership to decide whether to accept a peaceful accommodation of differences. A people determined to carry on its struggle may succeed in frustrating even the best of international designs. It may take a very long time before they grasp the opportunities to build real peace. Look at Cyprus. How effective a response, then, is international administration to the formidable challenge of rebuilding war-torn territories? While this study has highlighted the shortcomings associated with international administration, some of them very serious, it has also sought to demonstrate that these initiatives have made meaningful contributions to the consolidation of peace in each of the cases where they have been employed. It is exceedingly easy to point up the inadequacies of transitional administrations but it is also important to recognize that the situations that they confront are inherently difficult ones that do not lend themselves to quick or easy resolution. As Veton Surroi, the Kosovo journalist and eminence grise, observed with respect to Kosovo in 2001: Clearly, in the next five years Kosovo is not going to be an exemplary democracy or have a prosperous economy. The reasons for this are simple. Kosovo never was a democracy. It never had a market economy... It is undergoing a transition after fifty years of communism and ten years of apartheid-like Serbian domination and the destruction of war.9

Under such circumstances—often some of the worst imaginable circumstances—it is unreasonable to expect international 9

Veton Surroi, 'The Future of Kosovo', Internationale Politiky Transatlantic edn., 2/2 (2001), 43.

256 Conclusions authorities necessarily to be able to transform war-torn societies into peaceful, prosperous, and democratic ones. Its many shortcomings notwithstanding, what may most recommend international territorial administration, then, may simply be that in many respects it is the least worst option. International administration is the Rolls Royce of conflictmanagement strategies, and it is doubtful that there will be the political will to repeat the experience often. But, as the events of 11 September 2001 demonstrate, we live in a world where it is no longer possible to assume that weak or failed states are something the rest of the world can easily ignore. Robert Cooper employs the term 'pre-state, post-imperial chaos' to refer to regions of the world that, no longer strategically important to the major powers, have succumbed to political disorder, desperate poverty, and civil conflict. 'The existence of such a zone of chaos is nothing new; but previously such areas, precisely because of their chaos, were isolated from the rest of the world. Not so today.'10 As a consequence of globalization, these zones of chaos today are fertile ground for the establishment of drug, crime, and terrorist syndicates from which no country may be immune—as the threats emanating from Taliban-controlled Afghanistan made clear.11 The international administration of war-torn territories may be costly and imperfect, but less interventionist measures, in some cases, and unilateralist measures, in other cases, can be worse alternatives. 10

Robert Cooper, The Post-modern State and World Order, 2nd edn. (London: Demos and The Foreign Policy Centre, 2000), 11. 11 Martin Wolf, 'The Need for a New Imperialism', Financial Times, 10 October 2001.

Annex: Interviews Conducted * Mari Alkatiri, Cabinet Member for Economic Affairs, ETTA Blanca Antonini, Co-Head, Department of Local Administration, UNMIK Afrim Arzoallxhiu, Vice-President, Administrative Board, Prizren municipality, Kosovo Paddy Ashdown, High Representative, Bosnia and Herzegovina Peter Bach, Acting Head, Human Rights/Rule of Law Department, OHR Mark Baskin, Municipal Administrator, Prizren, Kosovo Andy Bearpark, Deputy High Representative for Reconstruction and Return, OHR Ismije Besiri, Political Advisor to the OSCE Kosovo mission chief Werner Blatter, UNHCR Chief of Mission, Bosnia and Herzegovina Derek Boothby, Deputy Transitional Administrator, UNTAES Gillian Brown, Gender Specialist, World Bank, Dili Michael Brown, Acting Head, Land and Property Unit, UNTAET Steven Burgess, Programme Advisor, World Bank, Dili Jean Cady, Deputy SRSG, UNTAET Mario Carrascalao, Vice-President, CNRT Jarat Chopra, Head of District Administration, UNTAET Maj-Gen Peter Cosgrove, Commander, INTERFET Jock Covey, Deputy SRSG, UNMIK Robert Curis, Country Director (Kosovo), European Centre for Minority Issues (ECMI) Daut Dauti, Journalist, Pristina Xavier Devictor, Head of Mission, World Bank, Pristina Axel Dittman, Political Advisor to the SRSG, UNMIK Michael Dziedzic, Special Assistant to the Deputy SRSG, UNMIK Robert Engels, Political Advisor to the Commander of SFOR Daan Everts, Deputy SRSG and OSCE Head of Mission, Kosovo Dana Eyre, Senior Policy Advisor, UNMIK EU Pillar Gerard Fischer, Deputy SRSG, UNMIK Joaquim Fonseca, Advocacy Officer, Yayasan HAK (Foundation for Law, Human Rights and Justice), Dili Gerry Fox, Director for District Administration, UNTAET Sven Frederiksen, UNMIK Police Commissioner Peter Galbraith, Director of Political Affairs, UNTAET Benedicte Giaever, Head of OSCE, Prizren, Kosovo Wendy Gilmour, Political Advisor to the KFOR Commander Ross Grimmer, Deputy Police Commissioner, UNTAET Jaque Grinberg, Head of Civil Affairs, UNMIBH * Some individuals may have held different positions at other times.

258 Interviews Conducted Abel Guterres, Director, East Timor Ministry of Foreign Affairs Rosemary Gutierrez, Political Affairs Officer, UNTAET Shelly Hack, Media Consultant to the OHR, Sarajevo David Haeri, Cabinet Secretary, ETTA/UNTAET David Harland, Acting Deputy SRSG, UNTAET Lynn Hastings, Deputy Head of Mission for Human Rights, OSCE, Sarajevo Fabrizio Hochschild, Special Assistant to the SRSG, UNTAET Rudolf Hoffmann, Acting Regional Administrator for Prizren, Kosovo Ron Isaacson, Deputy Head of Mission, World Bank, Dili Fr. Filomeno Jacob, Cabinet Minister for Social Affairs, ETTA Allan Leon Jensen, Head, Customs and Fiscal Assistance Office (CAFAO), Sarajevo Dominic Jermey, UK Representative, Dili Sidney Jones, Chief, Human Rights Unit, UNTAET Andrew Joscelyne, Chef de Cabinet to the Head of Mission, OSCE, Pristina Joe Kazlas, Co-Head, Non-Resident Affairs, UNMIK Jan Kickert, Political Advisor to the SRSG, UNMIK Jacques Paul Klein, Special Representative of the Secretary-General, UNMIBH Tom Koenigs, Deputy SRSG, UNMIK Lennart Kotsalainen, Chief of Mission, UNHCR, Pristina Bernard Kouchner, Special Representative of the Secretary-General, UNMIK Johan Kvale Sverre, Deputy Head of Mission for Democratisation, OSCE, Sarajevo Gianni La Ferrara, Legal Department, OHR, Sarajevo Karen Levine, Chief of the Political-Economic Section of the US Office, Pristina Oleg Levitin, Political Advisor to the Deputy SRSG, UNMIK Judge Finn Lynghjem, Deputy High Representative, Mostar Leon Malazogu, Programme Director, Kosovar Institute for Policy Research and Development (KIPRED), Pristina Shkelzen Maliqi, Writer and Journalist, Pristina Jasna Malkoc, Director General, Democratisation Department, OSCE, Sarajevo Kishore Mandhyan, Deputy for Civil Affairs, UNMIBH Susan Manual, Information Department, UNMIK Ian Martin, Special Representative of the Secretary-General, UNAMET Paul Mecklenburg, Political Affairs Officer (police), UNMIK Eric Morris, Head, UNTAET Planning Team, DPKO Maj-Gen J. D. Moore-Bick, Military Advisor to the High Representative, Sarajevo Jonathan Morrow, Legal Advisor, Political, Constitutional and Electoral Affairs, UNTAET Alam Mujahid, Municipal Administrator of Malisheve, Kosovo Lt-Gen Boonsrang Niumpradit, Force Commander, UNPKF, Dili

Interviews Conducted 259 Zoran Pajic, Head, Law Reform Unit, OHR Sylvie Pantz, Director, Department of Judicial Affairs, UNMIK Elaine Patterson, Acting Head of Mission, World Bank, Sarajevo Wolfgang Petritsch, High Representative, Bosnia and Herzegovina Paula Pinto, CNRT Secretariat, Dili Emilia Pires, Head, ETTA National Planning and Development Authority Jonathan Prentice, Special Assistant to the SRSG, UNTAET Adrian Rausche, Head, Economics Department, OHR, Mostar Blerim Reka, Co-Chair, UNMIK Advisory Council on Legislative Matters Blerim Shala, Editor of Zen, Pristina David Slinn, Head of Mission, UK Office, Pristina Maj-Gen Mike Smith, Deputy Force Commander, UNPKF, Dili Karol Soltan, Deputy Director of Constitutional Affairs, UNTAET Gerhard Sontheim, Deputy Head, Regional Office South, OHR, Mostar Michael Stiers, Deputy Police Commissioner, International Police Task Force, UNMIBH Krister Thelin, Director General, Independent Media Commission, Sarajevo Alice Thomas, International Legal Advisor, Kosovo Ombudsperson Institution James Tulloch, Senior Advisor, Department of Health Sciences, UNTAET Archie Tuta, Political Advisor to the High Representative, Sarajevo Roberto Valent, Municipal Administrator of Suhareka, Kosovo Johannes van Houten, Head of Mission, IMF, Dili Johan van Lamoen, Principal Legal Advisor, UNTAET Sergio Vieira de Mello, Special Representative of the Secretary-General, UNTAET Karin von Hippel, Head, Office of Community Affairs, UNMIK Henriette von Kaltenborn-Stachau, Program Officer, Donor Coordination Unit, UNTAET Gen Fritz von Korff, Commander MNB South, Prizren, Kosovo Gita Honwana Welch, Head, Department of Judicial Affairs, UNTAET Jennifer Wilson, Demilitarization Policy Advisor, UNMIK Alexandros Yannis, Political Advisor to the SRSG, UNMIK

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VI. Periodicals Balkan Crisis Report Balkan Reconstruction Report Bosnia Report The Economist Far Eastern Economic Review Financial Times The Guardian International Herald Tribune La'o Hamutuk Bulletin New York Times OHR Bulletin OHR Economic Task Force Secretariat, Economic Newsletter OHR Press Releases OSCE Press Releases RFE/RL Balkan Report RFE/RL South Slavic Report Sydney Morning Herald UN Wire UNMIK News UN Press Releases UNMIK Press Releases UNTAETDaily Briefing Washington Post

Index ABC Radio Australia 206 Abkhazia 71 accountability: concept defined 197-9 and democratization 132 of international actors 4,34,102, 103^, 159-60,180,190,192,194, 195-211,246-50,254 of local authorities 53« mechanisms of 199-207 and state sovereignty 7 Afghanistan 2,6,14,26,179,220,234, 235,256 African Union (AU) 239 Agenda for Democratization 129-30 Albania 5,28,132 Alliance for Change 127,182 amnesty 216 Amnesty International 65,207 Amsterdam Treaty 233 Angola 6,121,213,234 Annan, Kofi 7,9», 98,222 Aristide, Jean-Bertrand 252 Armenia 71 arms control 46 Ashdown, Paddy 87«, 98,127,139n, 147, 180n,183,190,251 Asian Development Bank 124,169 assessed contributions 144, 220 Association of Southeast Asian Nations (ASEAN) 253 Austria 33 Austria-Hungary 28 Australia: and East Timor 10,20,49, 61, 96,146n, 153,166,226,227,237, 241,244 and Nauru 34 and New Guinea 33 Azerbaijan 71 Bair, Andrew 48 Barry, Robert 37 British Broadcasting Corporation (BBC) 206 Belgium 33,40 Bildt, Carl 39,73n, 95,96,195w Blair, Tony 9

Bosnia and Herzegovina (BiH): general 6,20,25,26-7 'Bonn Powers' 74,75,113,186 Brcko 21,57-8,91n, 11 In, 200 Commission for Real Property Claims (CRPC) 74-5 Constitutional Court 113-14,181,248 Croat separatism 25,52 elections in 53,57,121-2,127-8,181-2, 192,213 ethnic balancing 25, 82,92,111-14 EU Police Mission (EUPM) 47 Federation of BiH 25,48,51,52,54,57, 72,91n, 111,112,113,128,141, 147,156,182,183,192,200« General Framework Agreement for Peace (Dayton Accord) 20,23,25, 27,36,39,47,48,52,54,55,56, 72, 74,75,76,91,105,110-13,121-2, 140,147,164,182,183,186,187, 188,193,199,200»,229,252 High Representative 20-1,36,37,39, 52,60,74, 81,91,92-3,113,127, 142,173,180-5,186,189,195n, 199,231,233,251-2 Human Rights Ombudsman 92,192-3, 200w IFOR (Implementation Force) 39, 40, 47,48,50,121,175 IPTF (International Police Task Force) 47-8, 51, 53, 54-7,60, 75, 92,164 judiciary 60-1,114,145,188 Mission Implementation Plan 173-4, 177,190 Mostar 36-7, 52,139,140,156 OSCE (Organization for Security and Co-operation in Europe) 37, 75, 81,121,127-8,133,157», 192 Peace Implementation Council (PIC) 4, 34, 74,82,105,113n, 127,172,173, 186,187,191,195,199,211,231 policing of 46,47-8,50,51-5, 56,57-8 refugees and displaced persons 37,69, 71-8,79, 81, 82 Republika Srpska 25,48, 51, 54,57, 72, 73, 78,91«, 111, 112,113,140-1, 145,149,177,181,182,183,185, 187-8

284

Index

Bosnia and Herzegovina (BiH) (cont.) RRTF (Reconstruction and Return Task Force) 81,192 SFOR (Stabilization Force) 37, 50, 57, 75,177 UNMIBH (UN Mission in Bosnia and Herzegovina) 37,47, 52, 53, 58, 60,173 World Bank 36,37,140,144,145,156 see also international administration Boutros-Ghali, Boutros 129 Brahimi, Lakhdar 64n, 235 Brahimi Report on UN Peace Operations 64,166,176,220,230,231,232, 237,238,239,240,242,244,245, 249,250 Brcko see Bosnia and Herzegovina Britain: and Bosnia and Herzegovina 27,34n and Group of Seven In and International Control Commission of Albania 28 and Iraq 8 and Kosovo 174 and the Mandates/Trusteeship system 33-t and policing 55,240 post-war occupation of Germany 33, 130 and Saar Basin 29-30 British Cameroons 33 Bush, George W. 241 Cambodia see UNTAC capacity-building 86-8,99-108,109-110 see also specific operations CARDS (Community Assistance for Reconstruction, Development and Stabilization) 153 Carothers, Thomas 134 Cater, Charles 71 Cavic, Dragan 185 CEP see East Timor Chandler, David 131-2 Chechnya 9 China 253 Chopra, Jarat 17n, 98 Churchill, Winston 163« civil-military relations 175 civil society 35,44,132-3,171 CIVPOL 45,46, 51,56, 58w, 235,237, 240,242 see also international administration (policing)

Clinton administration 26-7,121,122, 241 CNRT see East Timor Congo 18,238,244 constitutions: general 134,196 Bosnia and Herzegovina 25, 51, 91, 110-14,142n,147,181,183,185, 186»,188,200n,248 Cambodia 213 Danzig 29 East Timor 101,116,118,123-t, 218 Kosovo 105-6,117 post-war Germany 123n post-war Japan 130 consultation 3,30,31, 87, 89,94,95-8, 105,114-15,118,123,167-72,186, 191-2,196,221,225,236,246-7 Cooper, Robert 256 corruption 139,154,156,157w, 189,205 Council of Europe 35 Cousens, Elizabeth 71 Covey, Jock 173 Cox, Marcus 35,181 Crawford, James 16 crimes against humanity 8, 96 Croatia: and Bosnia and Herzegovina 25,27, 76, 78,135 and Croatian Serbs 3,24,69, 75-6, 78, 79, 80, 84, 88,110,124-5,152, 215-16,252 and Eastern Slavonia 19,21,24, 58, 60, 77, 80, 89, 90,109w, 125,147, 151-2,162-3,215-16,218-19, 226-8,253 World Bank 77w, 140 Croatian Democratic Union (HDZ) 26, 122,126,156,182 Cyprus 71,254,255 Czechoslovakia 82-3 Danzig, Free City of 5,28-9 Dawes Plan 143» Dayton Accord see Bosnia and Herzegovina de-mining 68,138 Democratic Republic of Congo 238,244 democratization 129-34,183^, 185,207 de-Nazification 91 Deutsche Welle 206 development see economic reconstruction and development disarmament, demobilization and reintegration 2,46,154-6,228

Index displaced persons see refugees and internally displaced persons donor governments see economic reconstruction and development DynCorp Technical Services 241 Dziedzic, Michael 48 Eastern Slavonia: general 3,19,21,24 Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium 19, 72n, 124, 228-9 elections in 124-6,213,215 Joint Implementation Committees 89-90, 95,215 NATO 40 operational aims 24, 88-9 OSCE (Organization for Security and Co-operation in Europe) 162,216, 218,219 Police Support Group 58,218-19 policing of 46, 54, 58, 60,104,162 refugees and displaced persons 69,71, 72, 75-7,78-9,80,227 Republika Srpska Krajina 3, 88,110 UNTAES (UN Transitional Administration for Eastern Slavonia, Baranja and Sirmium) 1, 18-19,20,21,39-41,44,46,58,69, 71, 75-6, 78-80, 81-2, 88-9,104, 124,144,147,151,155-6,176,200, 215-16,218-20,226,227, 228-9, 251,253 World Bank 77n, 140 see also international administration East Timor (Timor-Leste): general 6,20,21, 24, 32, 35 CEP (Community Empowerment Project) 124,168-9,171 CNRT (National Council of Timorese Resistance) 24, 66, 94w, 96,107, 123,168,170,204,246-7 consultation 94-5,96-8 elections 117,123^,170,213 ETDF (East Timor Defence Force) 155,221,224 ETTA (East Timor Transitional Administration) 99-103,204-5 Falintil 155,228 GPA (Governance and Public Administration) 99,102,165 independence 1, 5,20,21-2, 93, 94, 104,106,116,117,118,123,161, 164,166,218,221,222,223,225

285

Inspector General 101,204-5 INTERFET (International Force in East Timor) 20,49, 50, 55,61,62, 65, 96,155,166 Joint Assessment Mission (JAM) 169, 171-2 judicial and penal institutions 61-5,66, 106,223 National Consultative Council (NCC) 94-5,115,116,171,172 National Council (NC) 116,172,187, 205,221 operational aims 24 policing of 46,48-51,55, 56,223-4,241 'popular consultation' 20,123,161, 165,166 refugees and displaced persons 68, 70, 71 Timor Sea Treaty 226,227 Transitional Cabinet 96,100,101,102, 115-16,117-18,205 Trust Fund for East Timor (TFET) 102,170,171,204 UNMISET (UN Mission in Support of East Timor) 220,222-3 UNTAET (UN Transitional Administration in East Timor) 1, 18-20,21-2,24,37,40,61, 63, 66-7,70, 87,93-8,102-3,106, 114-16,119,123-4,139,144,146, 155,165-6,168-72,176,177,187, 200,201,204,214,220,221,226, 228,235,236,242,243,245,246, 251 World Bank 103,120n, 168,169,170, 171,204,225,227 see also international administration ECOMOG (Economic Community of West African States Military Observer Group) 8 economic reconstruction and development: aid conditionality 36,140-41 criminal economic activity 154,156-7 currency regulation 3,22-3,143—4 donor governments 4,36,65, 72, 87, 102,107,129,130,132,135,137, 138,140,144,145-6,147,151,153, 155,169,170,188,205,214,218, 224,225 fiscal policy 137,142,143,144-5, 147-8,154,169,225 obstacles to growth 146-53

286 Index economic reconstruction and development (cont.) physical reconstruction 36-7,137-40, 170,175,219 post-transition 225-6 privatization 136,148-50,156,157,188 public spending 144-6 state and socially owned enterprises (SOEs) 23,78,117,136,148,149, 150,156 education 19,61, 76, 88-9,95,123,134, 169,225 Egyptian Public Debt Commission 143 elections: general 198,208,212-3,247 Bosnia and Herzegovina 44,53,57, 180-1,182-3,192,213 Cambodia 17-18,25,213 East Timor 117,170,213 Eastern Slavonia 213,215 and international administrations 3, 44, 97, 120-9 Kosovo 105-6,115,117,175,213 Saar Basin 30 timing 121-5 electoral engineering 127-9 European Commission 34«, 37,169,183 European Convention on Human Rights 114,204 European Council 233-4,238,240 European Stability Initiative 194, 206 European Union: and Balkans 10,23,131,152,153, 185, 196,219-20 and Bosnia and Herzegovina 34n, 36, 47, 92,139,140,183 conflict management 230, 233, 234, 238, 240, 241 and Eastern Slavonia 162,219 and Kosovo 23,34, 37,174 Military Staff Organisation (EUMS) 233-4 Policy Planning and Early Warning Unit(PPEWU) 233 Stabilization and Association process (SAp) 23 exit strategies 8,11,120,159,160,212-29 failed states 2,256 Federal Republic of Yugoslavia: general 6 Kosovo 19,22-3,24,25 territorial integrity of 9 see also Serbia

follow-on arrangements 8,177,213,216, 218-26 France: and Bosnia and Herzegovina 27, 34« and Kosovo 114,174 and International Control Commission of Albania 28 and Iraq 8 and the League of Nations mandates system 33 and peacekeeping 245 and the post-war occupation of Germany 33,130 and the Saar Basin 29-30 French Cameroons 33 French Togoland 33 Galaxy Project 244 Garton Ash, Timothy 22 Gelbard, Robert 82 'gender-mainstreaming' 3,130,170-1 genocide 8,95,233 Georgia 71 Germany: and Bosnia and Herzegovina 34n, 76 and democratization 91,184 and Group of Seven In and Kosovo 174 post-war occupation of 3,4n, 5,13, 33, 50,91,113,123n, 130,146-7,212, 241,252 see also Danzig and Saarland Goldstone, Anthony 116«, 218 good governance 9,129, 209 Great Lakes 234 Greece 83 Grimmer, Ross 56 Grinberg, Jaque 52 Group of Seven/Eight 7,163 Gusmao, Xanana 96,101,118,155,168, 246 Haekkerup, Hans 37, 64-5,104,173 Haiti 6, 8,252 Havel, Vaclav 11 Henry L. Stimson Center 235 High Representative see Bosnia and Herzegovina Hohe,Tanja 119 Holkeri, Hard 37,172w, 217 Hombach,Bodo 10 Holbrooke, Richard 27,47,122 human rights 2, 5-8,23, 77,129,138, 179w, 184,207 see also international administration

Index Human Rights Watch 207 humanitarian intervention 5-11 Hun Sen 18 Hungary 82,185 Hussein, Saddam 4, 34,241 immunity of international staff 209-10 Independent Inquiry into Rwanda 233 Independent International Commission on Kosovo 1 In Indonesia: and East Timor 1,20,24, 33,51,61,64, 66, 70, 76,93n, 95,109«, 119,123, 148,150,161,164-5,166,169,224, 225 and West New Guinea (West Irian) 31 integrated mission task forces (IMTFs) 220-1,234-5 INTERFET (International Force in East Timor) see East Timor international administration: general 1-2,9,10,16-17,251-6 accountability of 196,199,195-211 actors and structures 33—41 applicable law 63^, 115,169,208,242 civil administration 37, 86-108,109, 114,135-6,163,169,172,215,223 contextual factors 13-14,24-28, 59-60, 219-20,251-2 criteria for success 13, 78-80,226-9 elections in 3, 53, 57, 97,105,115,117, 120-9,170-1,175,181-2,192,208, 212-3,215 financing of 102-3 historical precedents 2, 5,18,28-33 and human rights 23^, 45, 53, 57, 62, 63-5, 67, 72, 82-3, 92,114, 132, 189,199n, 201-2, 204,209, 210, 223,247,248 impartiality 12, 92, 96-7,142,192^, 248 judicial and penal institutions 60-7,248 local knowledge 63,119-20,167-72, 178 local ownership 105,107,169,190-4, 254 military occupation, compared with 2, 3-4,14n, 33,34,65, 86,132,167, 212 operational aims 21-24,253-4 planning of 43-4,161-78,231-6 policing 46-60 political nature 2-3,12,44 political institution-building 86, 88, 109-34

287

popular consultation 95-9,167-72 public order and internal security 45-67 reform of 230-50 structures of 35-40, 88-95,255 Third World concerns 14 types of operations 17-21,254 see also specific operations International Commission on Intervention and State Sovereignty 5«,9,11»,249« International Committee of the Red Cross 35 International Control Commission for Albania 5,28 International Covenant on Civil and Political Rights 83», 198«, 210 International Criminal Court 8,202 International Criminal Tribunal for the former Yugoslavia 35, 57, 66«, 91, 95-6,140,181 International Crisis Group 75,206,208, 250 International Institute for Democracy and Electoral Assistance 207 International Institute for Strategic Studies vii International Labor Organization 35 International Monetary Fund 35,37,140, 142n, 143,169 International Organization for Migration 155 international trusteeship 2,16-17, 246 intra-state conflict 6, 8,14,27,60,68,121, 136,154,156,183,239,251 International Police Task Force see Bosnia and Herzegovina Iraq: humanitarian situation 2, 6, 8 US-led invasion/occupation 4,10-11, 14,34, 65,132,167,212,241,253 Israel/Palestine see Occupied Territories Italy 7n, 28,34n, 157,174,237 Izetbegovic, Alija 53,189 Jackson, Gen Michael 175 Japan: general 7n, 34», 153,184,252 post-war occupation of 3,4«, 5, 33, 50, 113,130,146 Jerusalem 18 Jessen-Petersen, S0ren 37 justice see international administration and specific operations

288 Index Kashmir 2 King's College London 49,107,165 Klein, Jacques Paul 40,66,125,176,215 Kosovo: general 6,19,35 Constitutional Framework for Self-Government 105,106», 117 consultation 114-5,246 economic development 23 elections in 105-6,115,117,122-3,175, 213 IAC (Interim Administrative Council) 38,99,115-6 intervention in 10-11 JIAS (Joint Interim Administration Structure) 38,99,106,115 judicial and penal institutions 61-5, 66, 237 KFOR (Kosovo Force) 34,48,49,55, 59,61, 62,64, 65, 70, 71, 84,145, 175,201,202,203,204,209,210 KLA (Kosovo Liberation Army) 51, 93,94,119,122,154-5,247 KPC (Kosovo Protection Corps) 94, 154-5,217 Kosovo Serbs 22,25 Kosovo Transitional Council (KTC) 38,94,115,246 Kosovo Trust Agency (KTA) 149 Kosovo Verification Mission 56n, 163 Mitrovica 49,93,115 Ombudsperson 65,117,200-5,208, 209,210,247 OSCE (Organization for Security and Co-operation in Europe) 10, 34, 37,39, 56, 70,104,123,133,163, 174,175 policing of 46,48-9, 51, 55, 56, 58-9, 241 Provisional Institutions of Self-Government (PISG) 105-6, 117,172,192 refugees and displaced persons 68, 69-70, 71, 78, 81 'Standards before Status' 172w, 216,217 status issue 5,22-3,90,106,115,117, 149,151,153,216,217 UNMIK (UN Interim Administration Mission in Kosovo) 1,18-20, 22-3,34-5,37-9 World Bank 35,97 see also international administration KFOR (Kosovo Force) see Kosovo Klein, Jacques Paul 40, 66,125,176,215

Knaus, Gerald 181,189-90,250 Kosovar Institute for Policy Research and Development (KIPRED) 207 Kouchner, Bernard 37,65», 94,115,123, 133,177,246 La'oHamutuk 207 Lausanne Convention 83 League of Nations: Free City of Danzig 5,28-9 Saar Basin 5,29-30,34, 86,248 Leticia 5,30-1,34 Mandates System 31-2, 33,248 legitimacy 4,10-11,34, 65, 82,94,95,96, 110,119,120,122,123,128,180, 185-90,194,195,213,246 'lessons learned' 51,119,176-8,206-7, 235-6 Leticia 5,30-31,34 Leverhulme Trust vii Liberia 6, 8,220 Libya 6 Licklider, Roy 27 'light footprint' 26,179n MacArthur, Gen Douglas 33,130 Macedonia 132,238 Machiavelli, Niccolo 179 Martin, Felix 189-90,250 media, local and international 2, 92,126, 133,182,196,197, 205-6 Mexico 184 Milosevic, Slobodan 25,54,115,164n minority rights 72, 83,130,185, 219,250 'mission creep' 47,172,175 Namibia 18,161« nation-building see state-building nationalism 91-2,121 NATO (North Atlantic Treaty Organization): and Bosnia and Herzegovina 39-40,48, 175.233,237 and Eastern Slavonia 40, 163,237 and Kosovo/Yugoslavia 3,8-9,10-11, 19,22,27,34,39,69, 84,164n, 174, 233,237 and post-Cold War Europe 131,132n, 185.234,238 see also specific operations Nauru 33 neo-imperialism 4,132,249

Index Netherlands 31,34 New Guinea 33 Nicholl, Peter 193« No Exit Without Strategy 212,224 non-governmental organizations (NGOs) 104,123,133,145,178n, 193,196, 205,206-7 Northern Ireland 250 Occupied Territories (West Bank and Gaza) 2,9 OCHA (Office for the Coordination of Humanitarian Affairs) 35,43w, 232 ombudsperson institutions 65, 92,117, 192-3,200-5,208,209-10,247-8 see also accountability Operation Flash and Operation Storm 24 Organization of African Unity 239 organized crime 45, 54, 63,135,154,157 Orton, Frank 192 OSCE (Organization for Security and Co-Operation in Europe) 78,196, 200,213,240 see also specific operations 'Oslo Guidelines' 43 Ottoman Public Debt Administration 143 Palau 32 Party of Democratic Action (SDA) 53, 94»,122,139,182 Peace Implementation Council (PIC) see Bosnia and Herzegovina peacebuilding: general 2,44 financing of 220 planning of 220-22 peacekeeping: after the Cold War 2», 21 and exit strategies 120,122, 212 'complex' 2, 35,43 impartiality 96,162 and international administration 2, 12-13,16-17,21, 35,43,159,210, 245 law and order duties 45,46,47, 50 Peacekeeping Best Practices Unit 235 peacekeeping reform 234-6,237-8, 239-40,242-5 planning 167,231-3 and regional organisations 233-4, 238-9,240-2

289

Special Committee on Peacekeeping Operations 232 see also 'Brahimi Report' Pentagon 47,167 Petersberg tasks 233-4,238 Petritsch, Wolfgang 74,105,190,191 Philippines 130«, 184 PIC (Peace Implementation Council) see Bosnia and Herzegovina Pinochet Ugarte, Gen Augusto 8 Plavsic, Biljana 181 Poland 29, 82,239w Pollis, Adamantia 83 Portugal 32,33,123 post-Cold War era 5-8, 69,129,131,230 power-sharing 126 see also international administration (political institution-building) Presidential Decision Directive 71 241-2 property restitution 2,68, 71-2, 74-5, 77-8,81,109,125,128,147,150, 183 protectorates 16-17 Radio France Internationale 206 Rambouillet negotiations 114,116« Ramos-Horta, Jose 98 RAND Corporation 184,253 Ratner, Steven 30 reconciliation processes 43,46, 66-7,120, 121,213,219,228 refugees and internally displaced persons: Bosnia and Herzegovina 37,48, 53«, 69, 71, 72-6, 77-8, 79, 81, 82, 83, 121,174,183 East Timor 70-1, 76 Eastern Slavonia 69, 75, 77, 78-9, 80, 81-2, 83,227 and internal security 46, 68 and international administration 23,44, 68-85,227 Kosovo 49,69-70, 78, 83, 84-5 NGOs 207 normative issues associated with return of 80-5 and political institution-building 128 post-war Germany 33, 82-3 return strategies 73-8,140 'right of return' 71-2 Refugees International 207 'reverse ethnic cleansing' 71 Reichsbank 143 Republika Srpska Krajina 3, 88,110 Rockefeller Foundation vii

290

Index

Romania 185 Rugova, Ibrahim 247 rule of law 46, 66,67, 75,174,210,217, 236,242 Russia: and Bosnia and Herzegovina 34n, 147, 199

and Group of Seven 7 and International Control Commission of Albania 28 and Kosovo 28,163,174 and peacekeeping 245 Rwanda 6,8,33,233 Saarland (Saar Basin) 5,29-30,34, 86,248 sanctions 6,140,154 self-determination 12, 32,110,159,194 September 11 attacks 256 Serbia: and Bosnia and Herzegovina 54 and Eastern Slavonia 89,176,253 and Kosovo 3,51, 70, 79,114w, 255 and UNMIK 4n, 149 Serbian Democratic Party (SDS) 96,122, 181-2 Sierra Leone 2, 6 Smoljan, Jelena 151 socially owned enterprises see economic reconstruction and development Solana, Javier 233 Somalia 2,6, 8,11«, 47 Somaliland 32 South Africa 6,161« Southern Rhodesia 6 sovereignty 7-8, 9,22,23, 30,215, 217, 246 Soviet Union 33,253 Spanish Civil War 183 Stabilization and Association process 23, 153,183 Stability Pact for South-Eastern Europe 10,153 state-building 3,13,23,180,183-5,187, 211 Steiner, Michael 37, 84,148w, 172w, 216, 217 Stiglitz, Joseph 191 Sudan 6 Surroi, Veton 255 Tajikistan 71 Taliban 14n, 26,179,256 Tanganyika 33

Tha$i, Hashim 247 Togoland 33 transitional administrators: general, passim exercise of executive authority 64—5, 75-6,176,179-94, 228-9, 250,254 leadership capabilities 26,40-1,255 transitional justice see international administration (judicial and penal institutions) Treaty of Neuilly-sur-Seine 83 Treaty of Versailles 29,30 Trieste 18 trusteeship see UN Trusteeship Tudjman, Franjo 25, 76, 77,124,125,126, 138,140,152,215,216,219 Turkey 28 United Nations: Charter 4«, 5, 6, 7,16,176, 249 decolonization 1, 32-3 Security Council 1,6,7, 8,11,16,19, 20,34,47,53,55,114,143,163, 173,174,186,187,195,199,200, 211,212,216,226,229,238,243, 246,249 Trusteeship see UN Trusteeship UNACABQ (UN Advisory Committee on Administrative and Budgetary Questions) 66,232 UNAMA (UN Assistance Mission in Afghanistan) 14w UNAMET (UN Assistance Mission in East Timor) 169 UNDP (UN Development Programme) 35, 37,221 UN DPA (Department of Political Affairs) 165,166,167,171,232, 234 UN DPKO (Department of Peacekeeping Operations) 35,165,166,167,168, 171,176,221,231,232,234,235, 240,243 UNHCR (UN High Commissioner for Refugees) 34,37, 73,76, 81 UNICEF (UN Children's Fund) 35 United Kingdom see Britain United States: and Bosnia and Herzegovina 34n, 47-8, 111,164,186,199 and Kosovo 163,174 and Iraq 8,34,167 and peacekeeping 201-2,245

Index and policing 50, 55,164,241 and the post-war occupation of Germany 33,123n, 130 and the post-war occupation of Japan 130n and the Saar Basin 29 UNMEE (UN Mission in Ethiopia and Eritrea) 243-4 UNMIBH see Bosnia and Herzegovina UNMIK see Kosovo UNPROFOR (UN Protection Force) 235 UNSAS (UN Standby Arrangements System) 237,239-40 UN Secretariat 44,163,164,173,224, 230,231,234,249 UN Security Council general, passim Chapter VII actions 5-6, 8,20,55,238, 249 and international administration 1,9, 11,16,19,22«, 34,47,48, 53, 56, 114,143,164,173,174,186,187, 195,199,211,212,216,226,229, 249 major power cooperation 7-8 UN Trusteeship general 5,16-17,32-3,195 Trusteeship Council 17, 32,248-9 UNTAC (UN Transitional Authority in Cambodia) 17-18,20,25, 40,121, 213,214,253 UNTAES see Eastern Slavonia UNTAET see East Timor (Timor-Leste) UNTAG (UN Transitional Assistance Group) 161» UNTEA (UN Temporary Executive Authority) 18,31,34,86 US Agency for International Development (USAID) 135 US Committee for Refugees 207 US Institute of Peace vii, 242 US State Department 47, 53n, 165,167, 241,242 US Congress 60n, 82,241

291

Vieira de Mello, Sergio 39,62, 86,96,100, 102,116,117,118,119,120», 165, 166,171,196,242,246 Vietnam 253 Walker, William 40 war crimes 8,39,46, 50,57,63,65-6, 75, 97,122,154,174,177 West New Guinea/West Irian see UNTEA Westendorp, Carlos 181 Western European Union 233 Western Samoa 33 Wilde, Ralph 17 women see 'gender mainstreaming' Woodward, Susan 84,144 World Bank: general 35,137,143,191,196,199,204, 245 and Bosnia and Herzegovina 36, 37, 140,144,145,156 and Croatia 77w, 140 and East Timor 103-4,120», 168-71, 205,225,227 Inspection Panel 205 and Kosovo 97 World Food Programme (WFP) 34-5 World Health Organization (WHO) 35 Yugoslavia: economic crisis 148 disintegration of 3 and Eastern Slavonia 24,90n, 147,152 and European Union 10 humanitarian crisis 6, 8 and Kosovo 22,25,59,63-4, 84-5,93, 114,119,143,149,210,217 media 133 NATO military campaign against 4», 8-9,19,27 refugees 69n, 76-8, 82 sovereignty and territorial integrity of 9,22,23,143,164,217 see also Serbia Zaum, Dominik 105