PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
C. Security Sector Reform: Building National Law Enforcement and
1. Kosovo: Re-establishing Law and Order
As in other areas described elsewhere, Kosovo was left with no functioning police force.654 The Security Council had explicitly mandated UNMIK to “[maintain]
civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo”.655 In the aftermath of NATO’s intervention, and despite the presence of 20,000 KFOR troops since 12 June 1999656 to ensure public order and safety until the international civil presence could take responsibility for this task,657 the security situation deteriorated substantially because of wide-spread arms possession, loot- ing, arson, revenge killings by Kosovo Albanians and cross-border incursions by the Yugoslav army.658 The military presence was not capable of re-establishing law and order in the immediate post-conflict phase, notwithstanding joint efforts by KFOR and the international police force to patrol the whole of the territory.659 KFOR did manage to complete the withdrawal of the Yugoslav forces from Kosovo within a few days after its arrival.660
The security situation in Kosovo remained precarious throughout the early years of UNMIK’s presence.661 Conflicting interpretations of KFOR’s policing mandate by the different national contingents662 and KFOR’s over-broad focus on the military aspects of the mission and lack of preparation for dealing with policing activity663 have been advanced as reasons for KFOR’s incapacity to halt the escalating violence in Kosovo. In addition to this, the malfunctioning and ethnically biased judiciary often resulted in the immediate release of suspects arrested by either KFOR or CIVPOL. Although the only civilian detention facility was run by international police forces in the emergency phase,664 CIVPOL could not prevent the release of suspects by the judiciary. In view of the deteriorating
654 O’Neill, W. G., Kosovo: An Unfinished Peace (Boulder / London: Lynne Rienner Publishers, 2002), p. 99.
655 SC Res. 1244, UN Doc. S/RES/1244 (1999), para. 11, i).
656 Williams, G. H., Engineering Peace. The Military Role in Postconflict Reconstruction (Washington:
United States Institute of Peace, 2005), p. 126.
657 SC Res. 1244, UN Doc. S/RES/1244 (1999), para. 9, d).
658 Report of the Secretary-General, UN Doc. S/1999/779, supra note 117, para. 5 and Report of the Secretary-General, UN Doc. S/2000/177, supra note 474, para. 25.
659 Chesterman, supra note 104, p. 117.
660 A few days before the timetable established under the MTA. See Military Technical Agree- ment between the International Security Force (“KFOR”) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, UN Doc. S/1999/682 (9 June 1999).
661 Report of the Secretary-General, UN Doc. S/2002/62, supra note 481, para. 22.
662 Caplan, supra note 467, p. 49.
663 Dahrendorf, N. et al., ‘A Review of Peace Operations: A Case for Change: Kosovo’, Conflict Security & Development Group, King’s College London (10 March 2003), paras. 45–6.
664 Report of the Secretary-General, UN Doc. S/1999/987, supra note 468, para. 27.
emergency situation in Kosovo and the already mentioned ineffective judiciary, KFOR decided to create its own detention system. As it was mandated by the Security Council to maintain law and order, and considering its distinct com- mand structure, KFOR assumed the power to arrest and detain suspects.665 In our view, and despite criticism of this working method,666 the laws of occupation do in fact provide a useful framework for these types of situation. As a former human rights advisor to the Special Representative of the Secretary-General puts it, “UNMIK and KFOR should have declared martial law. If ever the conditions justified emergency rule, Kosovo from June to December 1999 was it”.667 In addition, the Special Representative of the Secretary-General issued executive detention orders to remedy the failures of the judicial system, based on the dero- gations provided for in the various human rights instruments.668 The executive detention orders were rightly criticised, not because of their legality, but because of the absence of any mechanism for reviewing extra-judicial detentions based on executive orders. A Detention Review Commission was finally established for that purpose.669 The Commission was designed for only a three-month period, which was not renewed. Its task has since then been taken over by the Kosovar Supreme Court.
The ineffectiveness of the military to rapidly re-establish law and order has nevertheless to be combined with the inability to rely on an international police force in the first few months, therefore placing the burden of maintaining law and order exclusively on the military presence. KFOR’s presence remained an essential part of UNMIK’s law enforcement strategy. KFOR troops were responsible for control over several regions in Kosovo, until CIVPOL’s capacity enabled it to
665 See UNMIK Press Release, Statement on the right of KFOR to apprehend and detain, UN Doc. UNMIK/PR/7 (4 July 1999): “In accordance with United Nations Security Council resolution 1244 (1999) of 10 June 1999, KFOR has the mandate and responsibility to ensure both public safety and order as well as civil law and order until the United Nations Interim Administration Mission in Kosovo (UNMIK) itself can take full responsibility for maintaining civil law and order in Kosovo. In performing this task, KFOR has the right to apprehend and detain persons who are suspected of having committed offences against public safety and order, including the commission of such serious offences as murder, rape, kidnapping or arson, or war crimes.” See also Hartmann, M. E., International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, United States Institute of Peace Special Report 112 (October 2003), p. 5.
666 OSCE Mission in Kosovo, ‘Report 6: Extension of Custody Time Limits and the Right of Detainees: The Unlawfulness of Regulation 1999/6’ (29 April 2000).
667 O’Neill, supra note 654, p. 75.
668 UNMIK Press Release, Background Note on Zeqiri Detention, UN Doc. UNMIK/PR/394 (18 October 2000).
669 UNMIK Regulation 2001/18 on the establishment of a Detention Review Commission for extra-judicial detentions based on executive orders, UN Doc. UNMIK/REG/2001/18 (25 August 2001).
take over that responsibility. The deployment of CIVPOL officers throughout the territory, in order to perform basic police services and observe the Kosovo borders, was very slow. The sluggish deployment had to do with many factors.
The UN as such did not plan the police mission until after the end of NATO’s intervention,670 while the recruitment of civilian police officers is by definition time-consuming as, in contrast to the military, there are no national contingents prepared to engage rapidly in international missions. Although CIVPOL’s total authorised strength had been established at around 4,700, this number had not yet been reached fifteen months after UNMIK’s establishment.671 The quality of CIVPOL officers has also been questioned.672 Gradually, CIVPOL assumed responsibility over the entire territory, although, as of January 2002, CIVPOL was still in control of only four of the five Kosovo regions.673
In his first report, the Secretary-General considered the re-establishment of a functioning, credible, professional and impartial police force, while providing an interim police force, to be essential for UNMIK’s law and order strategy.674 UNMIK and the OSCE rapidly engaged in the creation of a Kosovo Police Service (KPS) and the training of Kosovo Police Officers. The OSCE training included new candidates, as well as former Kosovo police officers who had been expelled during Serb control over the territory. Soon after its arrival, the OSCE started rehabilitating the existing police academy, and the first training session began as early as September 1999.675 Further training sessions were organised for managerial positions and trainers. The transfer of law enforcement responsibility from the international police to the Kosovo Police Service was envisaged to take place in several steps, from the partial transfer of patrol responsibility to the full transfer of senior management posts.676 After the gradual take-over of managerial functions by the Kosovo Police Service, full authority was finally transferred to the local police force in January 2006.677
The ‘Disarmament, Demobilisation, and Reintegration’ programme (DDR) in Kosovo, with particular emphasis on the demilitarisation of the Kosovo Libera- tion Army (KLA/UCK), was seen as one of the most urgent issues to be dealt
670 Caplan, supra note 467, p. 56.
671 It was equally acknowledged that, even at full deployment, the UN police force would not be sufficient to maintain law and order. See Report of the Secretary-General, UN Doc. S/1999/987, supra note 468, para. 29.
672 O’Neill, supra note 654, p. 100.
673 Report of the Secretary-General, UN Doc. S/2002/62, supra note 481, para. 31.
674 Report of the Secretary-General, UN Doc. S/1999/779, supra note 117, para. 60.
675 Report of the Secretary-General, UN Doc. S/1999/987, supra note 468, para. 30.
676 Report of the Secretary-General, UN Doc. S/2001/218, supra note 573, para. 35.
677 Except for the ethnically divided town of Mitrovica. See Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2006/45 (25 January 2006), para. 29.
with in the security sector. UNMIK’s approach consisted of creating a special
‘force’ for former KLA/UCK members, the ‘Kosovo Protection Corps’ (KPC).678 The DDR programme started as early as June 1999 with the signature of an agreement between KFOR and the KLA/UCK Commander Hacim Thaci.679 The ‘Kosovo Protection Corps’ was not a police force, nor was it responsible for law enforcement; its main task was to assist in disaster and rescue operations, demining activities and humanitarian assistance in isolated areas. The KPC functioned under the authority of the Special Representative, whereas KFOR remained in charge of the operational direction of the Corps. The KPC was in fact a sui generis response to the demilitarisation of the KLA/UCK, as Kosovo could not possess a national defence force. Although many of the former KLA/
UCK members in fact saw the KPC as the predecessor of a Kosovo national army,680 the Force had no offensive or defensive functions. The Agreement signed between KFOR and the KLA nevertheless envisaged the transformation of the KPC into a national army – “on the lines of the US National Guard” – as part of a political process designed to determine Kosovo’s future status.681
Although the Secretary-General considered the demilitarisation of the KLA/
UCK as “successfully completed on 20 September (1999)”,682 it became clear that the majority of KLA/UCK members had not disarmed.683 In addition, even the integrated KPC officers continued to pose serious security threats to the Province, as they engaged in illegal law enforcement activities.684 Several murders and human rights abuses have equally been attributed to the Kosovo Protection Corps.685 Moreover, while the focus was laid on the integration of former KLA/UCK members, parallel security structures continued to exist in Kosovo, in particular the so-called ‘Bridge Watchers’, composed of Kosovo Serbs in the district of Mitrovicở/Mitrovica, and the Serbian Ministry of Interior Affairs Police (Ministarstvo Unutrasnih Poslova – MUP). Their integration into
678 UNMIK Regulation 1999/8 on the establishment of the Kosovo Protection Corps, UN Doc.
UNMIK/REG/1999/8 (20 September 1999).
679 KFOR, ‘Undertaking of demilitarisation and transformation by the UCK’ (20 June 1999).
680 O’Neill, supra note 654, p. 117.
681 KFOR, ‘Undertaking of demilitarisation and transformation by the UCK’ (20 June 1999), para. 25, b.
682 Report of the Secretary-General, UN Doc. S/1999/1250, supra note 469, para. 10.
683 The KPC was composed of 5,000 members, while 18,500 former KLA members had applied for it. See Caplan, supra note 467, p. 155.
684 Report of the Secretary-General, UN Doc. S/2000/177, supra note 474, para. 32.
685 O’Neill, supra note 654, pp. 120–121.
the Protection Corps has not been successful.686 The problem of parallel security forces in Kosovo persisted throughout UNMIK’s administration.687
Nevertheless, the overall effort in reforming the security sector was described as successful, especially with regard to the creation of a functioning professional police service.688 The several obstacles described above could have been avoided by what we argued earlier: a clear legal framework in respect of law enforcement.
The application of the laws of armed conflict and a clear affirmation of the scope of application of human rights law in the emergency phase could have avoided much discussion on the legality of both KFOR and UNMIK action in respect of law enforcement. In addition, lack of preparation to meet the challenges posed by such comprehensive missions,689 as well as an erroneous assessment of the security situation after NATO’s intervention, equally delayed the re-establishment of law and order. This was especially true with regard to the protection of Kosovo Serbs. In its ‘Responsibility to Protect’ report, the International Commission on Intervention and State Sovereignty emphasised the need to plan security mea- sures before deployment, as ‘revenge killings’ are to a certain extent inherent in post-conflict societies where parts of the local populations have frequently been targeted for their membership of a social group, race or religion.690