Addressing the question of whether, in Germany, international admini- strations of crisis areas are generally perceived as legitimate under pub- lic international law necessitates a dual assessment: a political and an academic one. In the light of the broader international debate, it is, however, relatively difficult to attribute parts of the discussion to indi- vidual governments and (national) authors. The following remarks thus are limited to indications which may be drawn from participation of Germany in international administrations and from comments by German academics.
1. Political Assessment
Considering carefully the involvement of the Federal Republic of Ger- many in related international activities, it is noteworthy that there is a notable reluctance to participate in peace enforcement activities. Such activities seem to be considered as legitimate only if exercised either on the basis of clear UN authority, or on a solid argument of self-defence.40 Slightly ambiguous was the approach to the air strikes against former
38 See my criticism, Marauhn (note 30), at 304-305.
39 Cf. Marauhn (note 30), at 310-312.
40 This may serve as an explanation for German participation in Operation Enduring Freedom; nevertheless, a lot of criticism has been voiced against Germany’s contribution to the operation, see C. Fischer/ A. Fischer-Lescano, Enduring Freedom für Entsendebeschlüsse?, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 85 (2001), 113-144.
Yugoslavia which Germany participated in, without, however, either UN authority or an argument of self-defence. Most commentators will recall the position adopted by both the Minister of Defence and the Foreign Minister in the Bundestag on the occasion of such air strikes.
Whileprima facie the attitude towards the US-led military intervention into Iraq was clear – at least from a political perspective – it is today also considered ambiguous by some, not only because Germany con- tinued to provide military bases to the United States and its Allies but also in light of recent newspaper reports which suggest an involvement of German intelligence in the intervention.41
Apart from such still modest involvement in peace enforcement activi- ties, Germany, from the very beginning of related activities in former Yugoslavia, building upon experiences in second-generation peace- building, focused on participation in the international administration of crisis areas. This participation – from the perspective of the Govern- ment – is considered as legitimate on the basis of UN authority, less so on the basis of (implied) consent. It may be stressed that Germany hosted the Bonn Afghanistan Conference and thereby sought to sup- port the role of the UN in re-building Afghanistan.42 Also, German in- volvement in rebuilding Iraq has been and is linked to related UN ac- tivities. While the Government is not outspoken on the legal basis for such involvement, it may be inferred from its policies, that UN author- ity is at least considered to provide a sufficiently solid basis for such participation.
It may be added that the German Government obviously considers in- ternational administrative efforts as adhering to the principles of good governance. Building upon national experiences Germany is advocating a particular rule of law-based model of international administration within the UN as well as the European Union. This is not only re- flected in the German Federal Government’s Plan of Action but can also be drawn from pertinent statements in the UN and in general. It should, however, be stressed that such approach is closely linked to Germany’s policies of development co-operation.
41 “German Intelligence Gave U.S. Iraqi Defense Plan, Report Says”, New York Times of 27 February 2006.
42 For an analysis of the Bonn Agreement see Marauhn (note 10), at 491- 496.
2. Academic Debate
The academic debate in Germany on international administration in cri- sis areas has been an ongoing one from the turn of the century. While bearing in mind its historical precedents, such international administra- tion was considered as a fairly new dimension in conflict management,43 and there were numerous efforts to re-conceptualise such international administration. It would go beyond the scope of this contribution to il- lustrate the debate in toto. Hence, I will concentrate on a few aspects which – as far as I can see – seem to be more or less accepted as provid- ing a legitimate basis for international administration in crisis areas.
Most of the recent cases of international administration of crisis areas have been developed within the UN framework. Within the UN system it is the Security Council mandating such administration and the Secre- tary-General exercising such authority. These policies are based upon and emerge from second-generation peacekeeping. Some authors put forward the idea that the difference between more extensive types of peacekeeping and international administration can be best illustrated re- ferring to the concept of trust.44 Such idea is linked up to the overall purpose of international administration in crisis areas which is not to pursue grand objectives such as spreading democracy around the globe but a much more modest one: the maintenance of international peace and security.45 While this is the overall objective, a number of sub- objectives are pursued by the UN, in particular when looking at Kos- ovo and East Timor. They range from stabilizing territories which form part of another state and whose future status is not yet agreed upon;
they call for autonomy and meaningful self-administration; and there is even a reference to the right of self-determination.46 Considering all this
43 Cf. Bothe/Marauhn (note 6), at 217. For further analyses from a German perspective see J.A. Frowein, Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen, in: H.W. Arndt et al (eds.), Vửlkerrecht und deutsches Recht. Festschrift für Walter Rudolf, 2001, 43-54; C. Stahn, International Terri- torial Administration in the Former Yugoslavia, Zeitschrift fỹr auslọndisches ửffentliches Recht und Vửlkerrecht 61 (2001), 105-172; M. Ruffert, The Ad- ministration of Kosovo and East-Timor by the International Community, In- ternational and Comparative Law Quarterly 50 (2001), 555-573.
44 Bothe/Marauhn (note 6), at 222-230.
45 Bothe/Marauhn (note 6), at 223.
46 On Kosovo see UN SC Res. 1160 (1998); 1199 (1998); 1203 (1998); 1239 (1999) and 1244 (1999), paras. 10, 19 and Annex II.
from the perspective of trusteeship administration means administra- tion by an international organisation, with a view to maintain interna- tional peace and security, respecting self-determination as far as possi- ble, but establishing a more or less comprehensive system in terms of legislative, executive and judicial powers.47 Thus, this type of (modern trusteeship) administration enjoys a twofold legal basis: local and mu- nicipal law and UN law are closely inter-related, thus establishing an administration of a dual nature, being a local institution and an interna- tional organ at the same time.48
It is against this background that – apart from relying upon the consent of the territorial state as a possible legal basis – a Chapter VII perspec- tive can be easily taken in the context of such international administra- tions. It is Chapter VII with all its enforcement powers providing a solid legal basis for all outside interferences directed at the maintenance of international peace and security, in particular when being as compre- hensive as in the cases of Kosovo and East Timor. The fact that one may, by way of reference, also derive some input from other Chapters of the UN Charter does not fundamentally alter this. However, such legal basis also brings about some inherent (!) limitations of interna- tional administration in crisis areas as trusteeship administration. Based on the purpose of such administration, functional limitations must be borne in mind: (1) As soon as international peace and security have been re-established and no relevant threat remains, any international administration must come to an end.49 (2) Since such administration is exercised both in the interest and on behalf of the international com- munity but also – at least conceptually – in the interest of the inhabi- tants of the territory concerned, the UN are not only accountable to its members but also to the population under administration. Further limi- tations can be derived from international human rights law and the principle of democratic governance, emerging from the right of self- determination.50
While the above applies to UN-based international administration in crisis areas, it cannot be ignored that with developments in Afghanistan and Iraq, a new dimension has made any legal assessment more com- plex. This already became a salient issue in the context of Afghanistan,
47 Bothe/Marauhn (note 6), at 224-228.
48 For a detailed account see Ruffert (note 43), sub III.1.
49 Bothe/Marauhn (note 6), at 236.
50 Cf. Stahn (note 43), sub II.1.a.
but it is now obvious with regard to Iraq. In all cases where military in- tervention has not been initiated nor even authorized by the UN itself, the organization is reluctant to take on an international administration of the same intensity as in the cases of Kosovo and East Timor. This does not only have political consequences but it also affects the legal basis and perhaps even the legality of such administration.
In the case of Afghanistan, the consensual element must be considered essential. It is on the basis of the Bonn agreement that the involvement of the UN was secured and the whole process is not one of comprehen- sive trusteeship administration, neither in degree nor in form. Rather, it is a multi-layered approach with some input from the UN, but primar- ily based on consent of the new authorities in Afghanistan which have been provided with democratic legitimacy at least ex post.51
The case of Iraq is even more complex because it must also take into ac- count the law of military occupation.52 Given the character of the US- led intervention in Iraq, the subsequent occupation of the country is best approached from the traditional concept of military occupation, at least as a starting point. Such occupation, however, is subject to a num- ber of limitations, primarily on the basis of international humanitarian law. These limitations have so far not been modified to an extent that they can be considered to be irrelevant. They include the obligation, not to totally modify the system of government within the occupied terri- tory. Any claim to a right of governmental change or democratic change is thus doubtful from the very start. In the case of Iraq, democratization can thus only be developed on the basis of UN input or on the basis of true self-determination of the people of Iraq. The first option might rely on UN Security Council resolutions which – while neither provid- ing ex post-legality nor ex post-legitimacy to the intervention – are lim- ited to expressing support towards the development of new govern- mental structures in Iraq after [!] the intervention.53 As far as the second option is concerned, recent developments after the Iraqi elections have illustrated that this is far from easy to argue.
51 On this complex interrelationship see T.D. Bosi, Post-Conflict Recon- struction: The United Nations’ Involvement in Afghanistan, New York Law School Journal of Human Rights 19 (2003), 819-831.
52 For a full analysis see Wolfrum (note 6), 1-45; S. Oeter, Post-Conflict Peacebuilding – Vửlkerrechtliche Aspekte der Friedenskonsolidierung, Frieden- swarte 80 (2005), 41, at 48-50.
53 See Marauhn (note 13), at 118-120.
In sum, the academic debate seems to reflect a consensus that interna- tional administration of crisis areas is best based on UN authority and legitimacy. Such authority can be supplemented by the consent of the territorial state, but not necessarily by the laws of occupation. It may be added that states should be careful to modify the rules applicable to military occupation, since international relations illustrate that long- term stability can rarely be achieved through institutional changes pro- moted by an occupying power.