34201. Justice Under International Administration: Kosovo, East Timor and Afghanistan
- Author:
- Simon Chesterman
- Publication Date:
- 09-2002
- Content Type:
- Working Paper
- Institution:
- International Peace Institute
- Abstract:
- In the rare circumstances in which the United Nations administers a post-conflict territory, what law should be enforced? By whom? And, crucially, how should one resolve the potential dilemma between building capacity for sustainable local institutions and maintaining respect for international standards of justice? This report examines these questions through the experiences of United Nations administrations in Kosovo (1999— ) and East Timor (1999-2002) and the assistance mission in Afghanistan (2002— ). Practice in this area has, necessarily, been improvizational rather than principled. But it is possible to draw some broad lessons from these three experiments in judicial reconstruction First, the administration of justice should rank among the higher priorities of a post-conflict peace operation – certainly far higher than it is currently ranked in Afghanistan. There is a tendency on the part of international actors to conflate armed conflict and criminal activity more generally. Drawing a clearer distinction and being firm on violations of the law increases both the credibility of the international presence and the chances of a peace agreement holding. Failure to do this undermined the credibility of the international presence in Kosovo, and led to missed opportunities in East Timor. Secondly, in an immediate post-conflict environment lacking a functioning law enforcement and judicial system, rule of law functions may have to be entrusted to military personnel on a temporary basis. Recourse to the military for such functions is a last resort, but may be the only alternative to a legal vacuum. The law imposed in such circumstances should be simple and consistent. If it is not feasible to enforce the law of the land, martial law should be declared as a temporary measure, with military lawyers – especially if they come from different national contingents – agreeing upon a basic legal framework. Persons detained under such an ad hoc system should be transferred to civilian authorities as quickly as possible. Thirdly, once the security environment allows the process of civil reconstruction to begin, sustainability should generally take precedence over temporary standards in the administration of basic law and order. Whether internationalized processes are appropriate for the most serious crimes should be determined, where possible, through broad consultation with local actors.
- Topic:
- Conflict Resolution and United Nations
- Political Geography:
- Afghanistan, Europe, South Asia, Kosovo, and Southeast Asia