B. Th e Laws of Occupation and Post-Confl ict Reconstruction
3. Post-confl ict Administration
The objectives and mandate of an occupying power under the laws of occupation are more limited than other forms of international administration. This results from the different purposes of the two legal bodies. As mentioned above, the laws of occupation mainly focus on relations with the administering authority and on the humanitarian aspect of the occupation. International administrations have not always been set up in accordance with similar instruments. The consent of the host state, for instance, is not a characteristic of all international administra- tions and can therefore not be upheld as a basis for the (non-)application of the laws of occupation. In East Timor for instance, the consent of the host State has been rightly criticised, as Indonesia was not the lawful sovereign, nor had it been recognised as such.461 In addition, the preceding military intervention and consequent military occupation vary from one case to another. It is for these reasons very difficult to establish a single criterion for the application of the laws of occupation to all international administrations. The principles discussed in the previous two sections will thus need to be applied to international administra- tions, in particular to the military components of such missions.
When the establishment of a post-conflict administration is preceded by military intervention, as in Kosovo for instance, we consider that the military forces are bound by the laws of occupation. The same is true in respect of the military component of UNTAET, which can be considered to have been bound by the laws of occupation. As argued in the previous section, this remains true even when a subsequent Security Council resolution endorses or extends the mandate of the military forces.462 The laws of occupation remain the original legal regime applicable to military occupiers, and have to be interpreted in function of relevant Security Council Resolutions. On the other hand, when the host State has explicitly consented to the establishment of the administration, the situation is not really one of belligerent occupation. However, similar to what we argued in the previous section in respect of peace-building operations, the laws of occupation can equally be applied to these cases, even though de jure application can be contested.463
The case is of course different in Iraq. The application of the laws of occupa- tion to the United States forces and administration is undeniable. However, in that case, the powers of the occupier also need to be supplemented by relevant
461 See also Ratner, supra note 8.
462 See: Cerone, supra note 325, pp. 483–485.
463 Cf. Levrat, B., ‘Le droit International Humanitaire au Timor Oriental: entre Théorie et Pra- tique’, 841 International Review of the Red Cross 77 (2001); Sassoli, supra note 349, p. 143 and Kelly, McCormack, Muggleton and Oswald, supra note 383, p. 115.
Security Council resolutions. As an example, all Coalition Provisional Authority Orders and Regulations are based both on the CPA’s authority under the relevant Security Council Resolutions and on the ‘laws and usages of war’.464
464 See for example, the first consideration of CPA Regulation Number 1, “The Coalition Provi- sional Authority”, CPA/REG/16 May 2003/01 (16 May 2003).
Post-conflict Administrations in Practice:
International Administrations, the ‘Light Footprint’
Approach, and the Occupation of Iraq
chapters. This division is based on the somewhat different objectives of the components. The first cluster is principally related to essential governmental tasks, which are more or less short-term objectives and which are related to the executive power. The reconstruction of the judicial system, comprising the re-establishment of the rule of law, can be seen as a more long-term objective, and is by definition related to the judicial power. The next chapter discusses institution-building and democracy, which is a major, if not the most promi- nent objective of these missions, and can to a certain extent be linked to the legislative power and institutions. The short-term objectives nevertheless do not necessarily imply a short-term engagement. Capacity-building by defini- tion requires a long-term course of action, as will be evidenced throughout this analysis. We nevertheless acknowledge that every attempt to categorise necessarily involves exceptions, and could, of course, be handled differently. In addition, our arrangement does not necessarily reflect the division of powers within the missions, although, arguably, the ‘pillar structure’ under UNMIK seems to be on the whole similar to our approach.
Clearly, these components have not enjoyed the same level of importance or priority in every case under examination, nor have all of these components had the same weight in relation to each other. Economic reconstruction for instance has not enjoyed a high priority in every post-conflict mission. Each section is again subdivided into several subsections, in which the implementation of the mandates in Kosovo, East Timor, Afghanistan and Iraq will be addressed.
As we briefly noted in our introduction, it is not the purpose of this book to engage in an all-inclusive analysis of the various peace-building missions undertaken in recent years, nor to undertake the establishment of a ‘model’, if one should exist, to address post-conflict reconstruction. This book will thus not propose an exhaustive description of all measures taken under the mandates assigned to the different missions. Instead, the focus will be on the general approach and on the major difficulties encountered, enabling us to differentiate between the approaches in Kosovo, East Timor, Afghanistan and Iraq.
Civil Administration
Probably one of the most immediate tasks of post-conflict reconstruction mis- sions is the restoration and re-establishment of basic civil administration, which consists of delivering public services to the population through an effective interim administration. In sum, it boils down to performing one of the core functions of a national government. Civil administration however cannot easily be ‘detached’
from other components, as it influences as much as it is influenced by other sectors such as those of judicial reconstruction and institution building.
This chapter is divided into four different sections. The first deals with civil administration sensu stricto, by which we mean the provision of public services.
Special attention will be paid to the reform of and capacity-building in the civil service, since the transfer of authority to national institutions is part of the final objective of such missions. The second section relates to economic reconstruc- tion, which must be seen as part of civil administration, although in the case of Kosovo a separate pillar was set up to oversee that economic reconstruction.
This was however a pragmatic solution to the fact that UNMIK operated as a
‘federation’ of international organisations, each having a distinct field of opera- tion. Our third section is dedicated to the re-establishment of law and order, and the reform of the security sector. The monopoly of a state in the maintenance of law and order within its territory is a vital element in the administration of the territory. As a result, special attention will be given to the establishment of local police and defence forces, and the relationship with the foreign military presence. This interaction between national and international security presences, especially in the immediate emergency period is inevitable, and a necessity.
The last section discusses the provision of emergency relief and the problem of refugees and internally displaced persons.
A. Basic Civil Administration
Basic civil administration is an essential condition for effective governance. As will become clear throughout our analysis, emergency measures have mostly been taken by international officials upon arrival, and have in general caused no real controversy. Indeed, restoring postal services, water and energy supply, and garbage collection and reopening schools and hospitals are logical immedi- ate steps to be taken. A recurrent and most interesting practice is the creation of claims commissions to deal with territorial disputes. These commissions are vital for the creation of sustainable peace, as their decisions influence judicial, economic and security aspects. Post-conflict societies often emerge from years of discrimination imposed by regimes of former occupiers, especially with regard to property rights, which are in addition seen in various international treaties as fundamental human rights. This has almost always led to much friction among the population. Therefore special attention will be paid to this issue.465
Civil administration is of course closely related to the setting up of institu- tions, as they will be in charge of delivering these services, and to the creation of interim institutions in the emergency phase. We will not enter into the details of the interim or transitional administrative structures set up, as they either were described in the first part, which gives an overview of the four cases we will focus on, or will be discussed in the chapter on institution-building. However, a short description of interim structures is necessary to facilitate the analysis of capacity-building in the civil service. We will equally focus on the emergency phase during which the need for the rapid restoration of essential services is paramount. Besides the main problems encountered by the interim authorities, our analysis will be centred on both immediate measures taken to restore essential public services and the building of local capacity in the civil service through the transition from international to local institutions.
1. Kosovo: Replacing Parallel Structures
UNMIK’s second pillar, ‘Civil Administration’, under the direct leadership of the UN, was entrusted with the civil administration of the Province, and was the
465 The issue of housing and property restitution has been the object of several interesting works entirely dedicated to it. See for example, Buyse, A., Post-Conflict Housing Restitution. The European Human Rights Perspective, with a Case Study on Bosnia and Herzegovina (Antwerpen:
Intersentia, 2008) and Van Houtte, H., Delmartino, B. and Iasson, Y., Post-War Restoration of Property Rights under International Law: Volume 1: Institutional features and Substantive Law (Cambridge: Cambridge University Press, 2008) and Das, H. and Van Houtte, H., Post-War Restoration of Property Rights under International Law: Volume 2: Procedural Aspects (Cambridge:
Cambridge University Press, 2008).
UN’s primary responsibility. Security Council Resolution 1244 asked UNMIK to “[perform] basic civilian administrative functions where and as long as required”.466 The reinstatement of essential public services was quickly dealt with.
The restoration of power, water and heating was rapidly, but partially, achieved in the first months after UNMIK’s arrival, although serious breakdowns often occurred.467 Many schools were immediately reopened throughout the country, while the physical reconstruction of damaged buildings had already started in October 1999.468 All hospitals were equally reopened soon after UNMIK’s deployment, and were managed by international staff to fill the vacuum caused by the emergency.469 A separate authority for post and telecommunications was established as early as October 1999.470
As UNMIK was the first mission of its kind in recent years, staff had to be recruited on a case by case basis, the same problem UNTAET would be faced with a few months later.471 The slow deployment of UNMIK outside the capital had led to the resurgence of parallel structures, mainly operated through the Kosovo Liberation Army (KLA/UCK). These parallel administrations collected tax revenues and operated health and educational services.472 UNMIK responded to these shadow structures by introducing a municipal administrative framework, the ‘Joint Interim Administrative Structure’ (JIAS), aimed at implementing official policies in the provinces and integrating members of these parallels structures.473 The municipal authorities were integrated in the JIAS, which explicitly required the dissolution of parallel entities by January 2000.474 The problems of parallel administrative structures nevertheless continued throughout UNMIK’s admin- istration. While Kosovo Albanians’ parallel structures such as schools have been
466 SC Res. 1244, UN Doc. S/RES/1244 (1999), para. 11, b).
467 See on the relation between the energy sector and economy Caplan, R., International Govern- ance of War-Torn Territories: Rule and Reconstruction (Oxford: Oxford University Press, 2005), pp. 139–140.
468 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/987 (16 September 1999), paras. 21–2.
469 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/1250 (23 December 1999), para. 37.
470 UNMIK Regulation 1999/12 on the provision on postal and telecommunications services in Kosovo, UN Doc. UNMIK/REG/1999/12 (14 October 1999).
471 In May 2000, almost a year after UNMIK’s establishment, the civil administration pillar had a staff of 292 internationals out of the 435 envisaged. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538 (6 June 2000), para. 28.
472 OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, ‘Parallel Structures in Kosovo’ (October 2003).
473 Report of the Secretary-General, UN Doc. S/1999/1250, supra note 469, para. 35.
474 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/177 (3 March 2000), para. 12.
satisfactorily integrated in the official administration, Serb parallel structures, mainly property registration and schools, persisted in the Serb municipalities because of ethnical bias within the official structures and Serbian interference in UNMIK’s administration.475
When UNMIK arrived, Kosovo completely lacked any local civil administra- tion, as a consequence of the departure of all Yugoslav administrators and civil servants. The ethnical bias towards Kosovo Serbs, who were a majority in the former civil service, would in any case have necessitated a complete reform of the administration. UNMIK quickly involved the local population, especially Kosovo Albanians, in the area of civil administration. Following the signature of an agreement on 15 December 1999, the first Kosovar multi-ethnic governmental structure was created, the already mentioned Joint Interim Administrative Struc- ture (JIAS), aimed at giving the Kosovars a direct input into UNMIK decision- making.476 The structure comprised three main bodies – the Kosovo Transitional Council, the Interim Administrative Council and administrative departments. The administrative departments were co-headed by local and international officials.
The first operational departments were those relating to civil administration:
Health and Social Welfare, Education and Science, Local Administration and the Central Fiscal Authority.477 Kosovo Serbs were very reluctant to join the interim institutions, and withdrew shortly after the creation of the first interim structures.478 By May 2000, the Joint Interim Administrative Structure’s departments already employed 58.300 local staff, although at the senior level local capacity building was slower.479 In order to bolster local capacity while preserving and ensuring the multi-ethnical character of Kosovo, UNMIK drafted a regulation laying the basis for recruitment into the civil service.480 Besides establishing the conditions for recruitment procedures, the regulation contains in an annex a short ‘Civil Service Code of Conduct’ to be respected by all civil servants. An ‘Institute for
475 OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, ‘Parallel Structures in Kosovo’ (October 2003).
476 UNMIK Regulation 2000/1 on the approval Kosovo Joint Interim Administrative Structure, UN Doc UNMIK/REG/2000/1 (14 January 2000).
477 Civil administration was later handled by the Institutions of Provisional Self-Government, instituted under the ‘Constitutional Framework for Provisional Self-Government’. See UNMIK Regulation 2001/19 on the executive branch of the provisional institutions of self-government in Kosovo, UN Doc. UNMIK/REG/2001/19 (13 September 2001).
478 Report of the Secretary-General, UN Doc. S/1999/1250, supra note 469, para. 3.
479 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2002/1126 (9 October 2002), para. 9.
480 UNMIK Regulation 2001/36 on the Kosovo Civil Service, UN Doc. UNMIK/REG/2001/36 (22 December 2001).
Civil Administration’, led by the OSCE, was equally set up to conduct training sessions for civil servants.481
As briefly mentioned, a recurrent component of post-conflict reconstruction is the setting up of claims commissions in order to establish property rights and provide compensation for those who lost them under former discriminatory laws.
Following NATO’s armed intervention, Serbian officials withdrew completely from Kosovo, taking with them the entire collection of cadastral documents.482 UNMIK therefore decided to create an internationalised ‘Housing and Property Claims Commission’483 in conjunction with a registration office, the ‘Housing and Property Directorate’.484 The great importance of this commission in the reconstruction process can easily be illustrated by the number of submitted claims: by the end of June 2003 – the deadline for the submission of claims – the Commission had received 28,587 claims in addition to the 3,000 proper- ties placed under the Commission’s administration. The handling of the claims was less of a success, at least in the early days. By September 2002, only 644 of the 19,862 claims had been resolved and only 322 decisions implemented – less than 2 per cent.485 The underestimate of the importance of the number of claims received by the Claims Commission required the permanent availability of external funding to enable all the claims to be adjudicated upon.486 On 6 June 2006 the Housing and Property Claims Commission had finally adjudicated on all received claims at first instance, and was replaced by the new ‘Kosovo Property Claims Commission’, composed of Kosovars only.487
UNMIK’s capacity to engage in the rapid, although partial, restoration of essential services needs to be highlighted, especially considering the generally alarming condition of public companies in Kosovo. The basic rehabilitation of
481 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2002/62 (15 January 2002), para. 34.
482 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2001/926 (2 October 2001), para. 17.
483 See in general on this: Das, H. and Van Houtte, H., Post-War Restoration of Property Rights under International Law: Volume 2: Procedural Aspects (Cambridge: Cambridge University Press, 2008), pp. 16 et s.
484 UNMIK Regulation 1999/23 on the establishment of the housing and property directorate and the housing and property claims commission, UN Doc. UNMIK/REG/1999/23 (15 Nov.
1999). For an overview through a human rights lens see OSCE Mission in Kosovo, Depart- ment of Human Rights and Rule of Law, ‘Property Rights in Kosovo’ (30 June 2003).
485 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2002/1126 (9 October 2002), para. 41.
486 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2006/906 (20 November 2006), para. 78.
487 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2007/395 (29 June 2007), Annex I, para. 65.
the civil service sector was immediate, and progressed well during the mission’s presence.488 UNMIK also swiftly integrated local actors in the civil administration departments, by increasing local ownership over essential civil services to pave the way for a transfer to the local administration. Local capacity-building has been slow but promising, although in the field of minority employment efforts need to be sustained. It should however be noted that recreating a functioning civil administration from scratch necessitates long-term commitments. Emergency measures to ensure rapid rehabilitation are paramount, but reforms require a continuing engagement. The 2006 decentralisation exercise in Kosovo was for instance difficult to achieve.489 In addition, the IMF recommended headcount reduction resulted in a hiring freeze from 2006 in order to keep expenditure under control.490 This shows that sustainability requires long-term strategic plan- ning and continuing international assistance and support.
2. East Timor: The Importance of a Long-term Engagement
Beyond emergency measures, the restoration of governance and administration through the reconstruction of essential infrastructure, the provision of basic social services, the recruitment of civil servants and the reinstatement of a law enforcement system were considered immediate priorities for UNTAET.491 The emergency measures taken by UNTAET were mainly aimed at the rehabilita- tion of essential public services. These immediate responses were however only partial with regard to severe logistical problems and did not ameliorate the catastrophic infrastructural condition of the territory. Water and electricity were rapidly although very partially restored.492 UNTAET equally managed to restore the majority of the schools by April 2000.493 Other emergency measures were aimed at a swift restoration of port and airport activity, as well as health services.494 The reconstruction of the physical infrastructure however posed major problems, considering the overall destruction of public facilities in the territory. Road infra- structure, and in general the rehabilitation of the other existing infrastructures,
488 Cf. the Secretary General’s reports on UNMIK.
489 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2006/906 (20 November 2006), para. 13
490 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2007/134 (9 March 2007), para. 62.
491 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc. S/2000/53 (26 January 2000), paras. 40–62.
492 Ibid., para. 48.
493 Report of the Secretary-General on the United Nations Transitional Administration in East Timor, UN Doc. S/2000/738 (26 July 2000), para. 36.
494 Report of the Secretary-General, UN Doc. S/2000/53, supra note 491, paras. 57–61.