Post-conflict administrations in international law : international territorial administration, transitional authority, and foreign occupation in theory and practice

the Concept Of International Administrations Of Territory, In Which Comprehensive Administrative Powers Are Exercised By, On Behalf Of Or With The Agreement Of The United Nations Has Recently Re-emerged In The Context Of Reconstructing (parts Of) States After Conflict. Although In Kosovo And East Timor, The Un Was Endowed With Wide-ranging Executive And Legislative Powers, In The Subsequent Operations In Afghanistan It Was Decided, To Principally Rely On Local Capacity With Minimal International Participation, And In Iraq, Administrative Power Was Exercised By The Occupying Powers. The Objectives Are However Very Similar. this Work First Delineates The Origins Of The Granting Of Administrative Functions To International Actors, And Analyses The Context In Which It Has Resurfaced, Namely Post-conflict Peace-building Or Reconstruction. Secondly, The Book Methodically Establishes The Legal Framework Applicable To Post-conflict Administrations And Peace-building Operations, By Taking Into Account The Post-conflict Scenario In Which They Operate. Based On These Two Analyses, An Enquiry Into The Practice Of The Reconstruction Processes In Kosovo, East Timor, Afghanistan And Iraq Is Undertaken, To Analyse And Understand The Influence Of The International Legal Framework And The Different Approaches On The Implementation Of The Mandates. Finally, The Book Concludes With An Analysis Of Questions On Exit Strategies, Local Ownership, The Internationalisation Of Domestic Institutions, And The Need For A Comprehensive Approach Towards Post-conflict Reconstruction. Cover 1 Contents 8 Acknowledgements 14 Abbreviations 16 Introduction 20 The Context of Post-Conflict Administration 21 Outline of the Argument 23 Methodology, Approach and Selection of Cases 25 PART I MAPPING THE CONCEPT: THE ADMINISTRATION OF TERRITORY AND THE RECONSTRUCTION OF STATES FROM A HISTORICAL PERSPECTIVE 28 Chapter 1. Early Forms of International Administration 34 A. The Saar Basin and the Free City of Danzig 34 B. The Upper Silesia Mixed Commission 37 C. The Proposed UN Administration of the Cities of Jerusalem and Trieste 38 D. Post-war Germany 40 E. The United Nations Temporary Executive Authority in West Irian 42 Chapter 2. Evolving Peace Operations 44 A. ONUC: Assisting the Congolese Government 44 B. The United Nations Council for South West Africa 46 C. Cambodia: Focusing on Elections 47 D. Restoring Peace and Stability in Somalia 49 E. Co-administration in Bosnia and Herzegovina 51 F. The Transitional Administration for Eastern Slovenia 52 Chapter 3. UN International Administrations, the 'Light Footprint' Approach and the Occupation of Iraq 56 A. The United Nations Interim Administration in Kosovo 56 B. The United Nations Transitional Authority in East Timor 59 C. Afghanistan: the 'Light Footprint' Approach 60 D. The Foreign Occupation of Iraq 64 PART II INTERNATIONAL LAW, POST-CONFLICT ADMINISTRATIONS AND PEACE-BUILDING. DEFINING THE LEGAL FRAMEWORK 70 Chapter 4. The Competence of the United Nations to Engage in Comprehensive Peace-building and International Territorial Administration 74 A. The Capacity of the United Nations to Administer Territory outside the Trusteeship System 74 B. The Legality of the Establishment of Post-conflict Administrations and Missions 78 1. UN Security Council 78 (a) Peacekeeping, Chapter VII and Implied powers 78 (b) State Failure as a Threat to International Peace and Security 83 (c) Security Council Action and Domestic Jurisdiction 87 (d) The Security Council and Self-determination 89 2. UN General Assembly 93 Chapter 5. The Legal Status of Territories and States under International Administration 96 A. 'Trust Territories', 'Protectorates' and 'International(ised) Territories' 96 B. Sovereignty and the Suspension or Limitation of Exclusive State Competences 101 C. International Legal Personality 104 Chapter 6. The Temporary Nature of Authority 110 Chapter 7. Human Rights Obligations of International Actors 114 A. Human Rights Obligations in Peace-building Missions 115 1. The UN Charter 115 2. Human Rights as Customary International Law 116 3. Human Rights and Foreign Military Components 120 4. Observations on the Attribution of Conduct 124 B. Immunities 126 C. Accountability Mechanisms in Practice: Ombudspersons and Judicial Review 130 Chapter 8. The Laws of Occupation 136 A. Belligerent Occupation of Foreign Territory 136 1. The Territorial Status of Occupied Territories 139 2. The Obligation to Respect the National Laws of the Occupied Territory 140 B. The Laws of Occupation and Post-Conflict Reconstruction 141 1. Peacekeeping Operations 141 2. Peace-building Operations and Enforcement Action 142 3. Post-conflict Administration 145 PART III POST-CONFLICT ADMINISTRATIONS IN PRACTICE: INTERNATIONAL ADMINISTRATIONS, THE 'LIGHT FOOTPRINT' APPROACH, AND THE OCCUPATION OF IRAQ 148 Chapter 9. Civil Administration 152 A. Basic Civil Administration 153 1. Kosovo: Replacing Parallel Structures 153 2. East Timor: The Importance of a Long-term Engagement 157 3. Afghanistan: The Challenges of Reform 161 4. 'De-ba'athification' of Iraqi Society 164 B. Economic Reconstruction 167 1. Kosovo's Transition towards a Free-market Economy 168 2. 'Timorising' the Economy 171 3. Afghanistan: A 'Free for All Policy'? 174 4. Iraq: Economic Reconstruction and the Laws of Occupation 176 C. Security Sector Reform: Building National Law Enforcement and Defence Capacity 179 1. Kosovo: Re-establishing Law and Order 181 2. Ensuring Sustainability in East Timor 185 3. Afghanistan: the Crucial Role of a Security Strategy 189 4. Iraq: Demobilisation without Disarmament 194 D. Emergency Relief, Refugees and Internally Displaced Persons 198 1. Minorities in Kosovo 199 2. Refugees in West Timor 201 3. Coordinating Returns in Afghanistan 203 4. Iraq: the Prerequisite of Physical Safety 205 Chapter 10. The Rule of Law and Judicial Reconstruction 208 A. Re-establishing the Judicial System 210 1. Kosovo: From Emergency to Provisional Institutions 212 (a) The Applicable Law Dispute 212 (b) The 'Emergency Judicial System' 213 (c) Initial Training, Continuous Education and Practical Skills Training 215 2. Creating a Timorese Judiciary from Scratch 218 (a) 'What Law Applies in a Country That Does not yet Exist?' 218 (b) Emergency Measures 219 (c) Mentoring and Mandatory Judicial Training 221 3. Afghanistan: Reconstruction in a Complex Legal Environment 222 (a) Finding and Compiling the Applicable Law 223 (b) Institutional Reform and Physical Reconstruction 224 (c) Continuous Education 227 4. Limited Reforms in Iraq 230 (a) The Boundaries of Legal Reform under the Laws of Occupation 231 (b) Reorganising the Judiciary 232 (c) Building an Independent Judicial Capacity 234 B. Promoting and Introducing Respect for Human Rights 236 1. The Kosovo Ombudsperson 236 2. East Timor: Focusing on the Adoption of New Laws 239 3. The 'Afghan Independent Human Rights Commission' 240 4. Ensuring Eff ective Human Rights Implementation Iraq 242 C. Transitional Justice: How to Deal with Past Crimes? 244 1. Kosovo: International and Mixed Trials 246 2. UNTAET's Comprehensive Approach 248 3. Afghanistan and the Marginalization of Past Crimes 252 4. The Iraqi Special Tribunal 254 Chapter 11. Institution-building and Democratic Governance 258 A. From Interim to Elected Institutions 260 1. A Constitutional Framework for Kosovo 261 2. Consultation in East Timor 265 3. 'Relatively Fair' Elections in Afghanistan 269 4. Iraq: from Foreign Occupation to National Institutions 271 B. The Context of Elections: Freedom of Expression and Freedom of Association 273 1. Freedoms and Ethnic Sensitivities in Kosovo 274 2. Defamation Laws in East Timor 277 3. Afghanistan: Ensuring Implementation 279 4. Iraq: The Gap between Theory and Practice 280 PART IV IMPROVING POST-CONFLICT ADMINISTRATION. A LEGAL FRAMEWORK FOR COMPREHENSIVE POST-CONFLICT RECONSTRUCTION 284 Chapter 12. Exit Strategies and Post-conflict Administration 288 A. Focussing on 'Getting the Job Done Right Rather than on Getting Out'? 288 B. In Practice: Carefully Balancing Initial and Sustainable Success 290 Chapter 13. Internationalisation, Consultation and Local Ownership 294 A. Local Ownership: Aim or Method? 294 B. Internationalisation vs. Ownership: Internationalising the Judiciary 296 Chapter 14. International Administration, the Light Footprint and Beyond 302 A. UN Involvement, Planning and the Nature of the Transitional Authority 303 B. A Comprehensive Approach 307 C. An International Legal Framework for Post-conflict Reconstruction: Jus Post Bellum? 308 Conclusion 314 The Legal Framework 315 A Comprehensive Approach towards Post-conflict Reconstruction 317 Ownership, Consultation and International Authority 319 Selected Literature 322 I. Books 322 II. Articles 327 III. Treaties 334 IV. Cases 336 A. Permanent Court of International Justice 336 B. International Court of Justice 336 C. European Court of Human Rights 336 D. Other 337 V. Official Documents and Publications 337 VI. Reports, Research Papers and Conference Papers 338 Index 344 "9004170235,9789004170230" Brill Drawing on the context in which the administration of territory by international actors has resurfaced, and on the legal framework applicable to post-conflict administrations and peace-building operations, this book analyses the practice of the reconstruction processes in Kosovo, East Timor, Afghanistan and Iraq.