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11. 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

12. Sharing Best Practices on Conflict Resolution

Author:
John Packer, Augustine Toure, Albrecht Schnabel, and Chandra Lekha Sriram
Publication Date:
04-2002
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
The UN does not act alone in conflict prevention. It is important for the UN to identify other actors with comparative advantages in certain aspects of conflict prevention, and to partner wisely with them. These may include regional and subregional organizations as well as local actors such as states or civil society organizations. Increased coordination between the UN and regional, subregional and civil society organizations might enable better linkages between national, regional and international conflict prevention efforts and improve planning at the field and headquarters level. Regional and subregional organizations offer important opportunities for partnering for the UN, but are quite varied in terms of resources, the political will that they can mobilize, and institutional capacity. Development of institutional capacity within nations to manage conflict peacefully can be assisted and encouraged by regional organizations and others. The Organization for Security and Cooperation in Europe's High Commissioner on National Minorities may be one example; the work of Organization of African States in democratization and human rights is also instructive. UN and World Bank development activities are increasingly being viewed through a conflict-prevention lens; their evaluations may help in not only identifying early warning signs, but also in developing strategies that mitigate the potential for violent conflict. Such analyses and approaches could be usefully adapted by regional and subregional organizations. The UN Staff College training course in early warning and preventive measures has sought to develop analytic skills in staff such that early warning can be translated into specific policy guidance. Such training will be available to some regional organization staff; the courses might usefully be adapted by such organizations for their own use.
Topic:
Civil Society, International Cooperation, Peace Studies, and United Nations
Political Geography:
Africa and Europe

13. Kosovo in Limbo: State-Building and "Substantial Autonomy"

Author:
Simon Chesterman
Publication Date:
08-2001
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
Complex peace operations that involve state-building functions are difficult even when the political outcome is clear, as it is in East Timor. In situations such as Kosovo, where the final status of the territory under administration remains unclear, every aspect of state-building is more politically sensitive and more operationally complex. When this occurs in a highly militarized environment and in an unstable region, any departure from a supposedly “interim” solution becomes more difficult still. The Dayton Accords in Bosnia show the dangers of a difficult peace agreement evolving into a constitutional framework that is both unworkable and impossible to change. The conclusion of hostilities may provide the best incentive for belligerents to compromise, but it may subsequently become impossible to reopen such questions without the threat of renewed violence. Future peace agreements are therefore likely to contain state-building provisions that international institutions will assume the task of overseeing, in some situations without a clear political endpoint and exit strategy. In Kosovo, the elections slated for November 17, 2001, reflect a desire for measurable progress and an indication of when the mission will end. An April 2001 report by the UN Secretary-General on this topic was entitled “No exit without strategy”, warning that the UN has too often withdrawn or dramatically altered a peacekeeping operation, only to see the situation remain unstable or sink into renewed violence. Unfortunately, the attitude of lead actors within the Security Council is too often “no strategy without an exit”. State-building after a war will always take years, perhaps decades, and it is disingenuous to suggest otherwise to domestic publics. Elections and limited devolution notwithstanding, the international community will remain in Kosovo and Bosnia for the foreseeable future, certainly with a strong military presence and with at least a supervisory civilian authority. This is an undesirable outcome of what NATO styles as humanitarian interventions, but it is better than all the alternatives. The fact that UNMIK will remain in control of Kosovo for the foreseeable future raises the question of how it should govern. Within UNMIK, there is an increasing tension between those who regard respect for human rights and the rule of law as central to the institution-building aspect of UNMIK's mandate, and those who see this as secondary to the over-riding concerns of peace and security.
Topic:
Conflict Resolution, Human Rights, International Law, International Organization, Migration, and United Nations
Political Geography:
Europe, Bosnia, and Kosovo

14. Managing Security Challenges in Post-Conflict Peacebuilding

Author:
Sheila Coutts and Kelvin Ong
Publication Date:
06-2001
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
While a functioning security sector provides the cornerstone for stable and democratic post-conflict societies, the record of the international community in establishing this critical function is mixed. Despite repeatedly having to manage the immediate post-conflict situation in various peace operations in Europe, Africa, Asia and Latin America, the international community still fails to take the state of the local security sector adequately into account when planning its own intervention.
Topic:
Conflict Resolution, Security, Human Rights, International Law, International Organization, Migration, and United Nations
Political Geography:
Africa, Europe, Asia, and Latin America