PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
D. Emergency Relief, Refugees and Internally Displaced Persons
4. Iraq: the Prerequisite of Physical Safety
In Iraq the UN was asked to “promot[e] the safe, orderly, and voluntary return of refugees and displaced persons”.826 The establishment of conditions in which refugees could return to Iraq remained the primary responsibility of the CPA as the occupying power. Emergency relief had been adequately managed in the immediate reconstruction phase. Various UN agencies were involved, and coordinated by UNAMI. Humanitarian aid restarted after the end of the major combat operations in March 2003, and cooperation with the Ministry of Trade was reactivated by June 2003.827 The early reduction of international staff fol- lowing the August 2003 attacks on the UN mission caused a serious delay in the implementation of several initiatives, although redeployment of UN staff in neighbouring countries permitted the limited continuation of emergency
824 McKechnie, A., ‘Humanitarian Assistance, Reconstruction & Development in Afghanistan: A Practitioner’s View’, in Azimi, Fuller and Nakayama, supra note 85, pp. 223–225.
825 Cf. Costy, A., ‘The Dilemma of Humanitarianism in the Post-Taliban Transition’, in Donini, Niland and Wermester, supra note 615, p. 161. The input by the military was praiseworthy, although cooperation with NGOs seemed difficult and apparently resulted in duplication of efforts (Williams, supra note 656, p. 5).
826 SC Res. 1483, UN Doc. S/RES/1483 (2003), para. 8, b).
827 Report of the Secretary-General, UN Doc. S/2003/715 (17 July 2003), supra note 160, paras.
63–64.
assistance.828 UN humanitarian presence to date remains limited and operations are mainly conducted from outside the country. The security situation, as well as continuing military operations, barred many international agencies, organisa- tions and NGOs from conducting humanitarian and reconstruction activities.
The UN therefore subcontracted many of its activities to local partners, while mandating national NGOs and consultants to oversee the implementation of the programmes.829 Different ministries were directly involved in delivering humanitarian aid and promoting the return of refugees and IDPs, and training programmes were initiated to build local capacity to increase the involvement of the Iraqi Ministries in UN activities.830
The refugee and internally displaced persons situation in Iraq has evolved into a major humanitarian crisis. Prior to the conflict, approximately 400,000 refugees were located outside Iraq. The number of IDPs under the former regime was estimated at 1 million,831 of whom 600,000 to 700,000 were Kurds in the north of Iraq.832 Considering the catastrophic security conditions, UNHCR initially advised refugees not to return to the country, while assisting those who had nevertheless chosen to return. This UNHCR official position was maintained throughout 2004,833 and in December 2006 UNHCR emphasised the impos- sibility for Iraqis from the Central and Southern Governorates to return to their homes.834 The continuing violence throughout the country still does not permit the safe return of refugees or IDPs. UNHCR has estimated that since 2003 an additional 1.6 million Iraqis have become refugees.835 By March 2007, 2 million refugees were still located outside Iraq; 1.9 million IDPs had not yet been resettled.836 While resettlement is an essential part of solving the refugee
828 Report of the Secretary-General, UN Doc. S/2003/1149, supra note 163, para. 34.
829 Report of the Secretary-General, UN Doc. S/2005/373, supra note 553, para. 64. See also Qazi, A. J., ‘UN’s Role in Iraq’, Forced Migration Review 5 (2007) (special issue).
830 Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), UN Doc. S/2004/710 (3 September 2004), para. 47.
831 Report of the Secretary-General, UN Doc. S/2003/715 (17 July 2003), supra note 160, para. 71.
832 GA, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights. The present situation of human rights in Iraq, UN Doc. E/CN.4/2005/4 (9 June 2004), para. 70.
833 UNHCR, ‘Iraq Operation Update’ (9 March 2004).
834 UNHCR, ‘UNHCR Return Advisory and Position on International Protection Needs of Iraqis Outside Iraq’ (18 December 2006).
835 Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), UN Doc. S/2006/945 (5 December 2006), para. 36. Since the bombing in Samarra in February 2006 for instance, some 470,094 people have been forcibly displaced internally: UNAMI, Human Rights Report (1 November–31 December 2006), para. 13.
836 Report of the Secretary-General pursuant to paragraph 30 of Resolution 1546 (2004), UN Doc. S/2007/126 (7 March 2007), para. 30.
and IDP crisis in Iraq, secure places in Iraq are limited and individuals remain vulnerable to sectarian violence. UNHCR therefore in December 2006 launched a programme to resettle many refugees outside Iraq.
The refugee and IDP question cannot indeed be solved without an overall improvement in security. Sectarian violence and military operations continue to cause the displacement of Iraqi citizens. Emergency relief cannot by itself offer a solution to the disastrous situation of refugees and IDPs. Although initial international financial assistance was generous, funds for emergency aid were rapidly exhausted as they had been envisaged only for the immediate post-conflict phase. The Iraqi Government proved to be unable to deal with the situation,837 though, admittedly, building local capacity is hard to achieve under these cir- cumstances. International assistance will nevertheless be needed for a much monger period than initially envisaged. The Compact with Iraq recognised the need for Iraqi leadership over humanitarian issues,838 but the deteriorating situa- tion will instead necessitate strong UN management of the humanitarian crisis.839 Additionally, and although the need to settle property claims was rapidly raised as a precondition for sustainable returns,840 no real progress has been made to date in that regard.
837 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2006/707 (1 September 2006), para. 28.
838 Section 4.4.2. Iraq Compact.
839 Cf. Report of the Secretary-General, UN Doc. S/2007/126, supra note 836, para. 34.
840 Report of the Secretary-General, UN Doc. S/2003/715, supra note 160, para. 71.
The Rule of Law and Judicial Reconstruction
Reforming the judiciary in order to ensure respect for the rule of law in post- conflict societies is a key element in their reconstruction. The strengthening of the rule of law has been supported by the international community for many years, and was part of post-conflict peace-building strategies prior to the most recent international administrations. Cambodia was in fact a major lesson in that regard. Rule of law elements, especially with regard to the creation of a functioning judicial system, were missing components in UNTAC’s mandate.841
Re-establishing the rule of law in war-torn societies, often characterised by devastated institutions and infrastructure, an ethnically divided population, a lack of essential safety, and traumas resulting from decades of oppression and armed conflict, is without doubt an enormous task. Respect for the rule of law and the redefinition of the applicable laws in conformity with international human rights standards are thus paramount in rebuilding a country and the population’s trust in the idea of a functioning democratic state.
The ‘rule of law’ is a broad and rather unclear concept.842 International pro- grammes containing rule of law elements have varied from delivering advice on constitution-making processes, reviewing national judicial systems and promoting respect for human rights to the latest cases of international administration and
841 Cf. also International Commission on Intervention and State Sovereignty, supra note 17, para. 5.13.
842 As defined by the UN Secretary-General, the rule of law “refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.
It requires, as well, measures to ensure adherence to the principles of supremacy of law, equal- ity before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General, ‘The rule of law and transitional justice in conflict and post-conflict societies’, supra note 15, para. 6).
complex peace-building. The growing importance of justice and the awareness of the international community in this respect have culminated in various recent UN documents. An explicit mention of the value of strengthening the rule of law was included in the Millennium Declaration.843 The Secretary-General’s report ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ is another significant step. The 2004 report highlights the importance of rule of law programmes, tends to strengthen the UN’s support in this area by enhancing the coordination of all UN efforts, and recommends a systematic analysis and application of the lessons learned in Security Council mandates, peace processes and the operations of United Nations peace missions.844
The importance of emphasising respect for the rule of law in post-conflict reconstruction lies in the close connection between justice and the restoration of security in these territories. Consequently, in the initial phase of the post- conflict environment, respect for the rule of law and the effective implementation of laws are perhaps the most important objectives. As Bernard Kouchner, the former Special Representative of the Secretary-General and head of UNMIK, said, “peacekeeping missions need a judicial or law-and-order ‘kit’ made up of trained police officers, judges and prosecutors, plus a set of potentially draco- nian security laws or regulations that are available on their arrival. This is the only way to stop criminal behaviour from flourishing in a post-war vacuum of authority”.845 Re-establishing the rule of law is a major part of restoring public order and security and works in two ways: it prevents the deterioration of the fragile public order and security situation and creates a safe and secure environ- ment in which to address the root causes of the conflict.846 The promotion of justice and the rule of law thus aim to address both the immediate post-conflict situation and the maintenance of peace and security in the long term.847
843 GA Res. 55/2, United Nations Millennium Declaration, UN Doc. A/RES/55/2 (8 September 2000).
844 Report of the Secretary-General, ‘The rule of law and transitional justice in conflict and post- conflict societies’, supra note 15, pp. 19–23.
845 See Smith, R. J., ‘Kosovo Still Seethes as UN Official Nears Exit’, The Washington Post (18 December 2000).
846 See Stahn, supra note 646, pp. 311–344.
847 As former Secretary-General Kofi Annan explained: “Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict period, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice. At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of restoration of the rule of law” (Report of