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1. Justice Under International Administration: Kosovo, East Timor and Afghanistan

Author:
Simon Chesterman
Publication Date:
09-2002
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
In the rare circumstances in which the United Nations administers a post-conflict territory, what law should be enforced? By whom? And, crucially, how should one resolve the potential dilemma between building capacity for sustainable local institutions and maintaining respect for international standards of justice? This report examines these questions through the experiences of United Nations administrations in Kosovo (1999— ) and East Timor (1999-2002) and the assistance mission in Afghanistan (2002— ). Practice in this area has, necessarily, been improvizational rather than principled. But it is possible to draw some broad lessons from these three experiments in judicial reconstruction First, the administration of justice should rank among the higher priorities of a post-conflict peace operation – certainly far higher than it is currently ranked in Afghanistan. There is a tendency on the part of international actors to conflate armed conflict and criminal activity more generally. Drawing a clearer distinction and being firm on violations of the law increases both the credibility of the international presence and the chances of a peace agreement holding. Failure to do this undermined the credibility of the international presence in Kosovo, and led to missed opportunities in East Timor. Secondly, in an immediate post-conflict environment lacking a functioning law enforcement and judicial system, rule of law functions may have to be entrusted to military personnel on a temporary basis. Recourse to the military for such functions is a last resort, but may be the only alternative to a legal vacuum. The law imposed in such circumstances should be simple and consistent. If it is not feasible to enforce the law of the land, martial law should be declared as a temporary measure, with military lawyers – especially if they come from different national contingents – agreeing upon a basic legal framework. Persons detained under such an ad hoc system should be transferred to civilian authorities as quickly as possible. Thirdly, once the security environment allows the process of civil reconstruction to begin, sustainability should generally take precedence over temporary standards in the administration of basic law and order. Whether internationalized processes are appropriate for the most serious crimes should be determined, where possible, through broad consultation with local actors.
Topic:
Conflict Resolution and United Nations
Political Geography:
Afghanistan, Europe, South Asia, Kosovo, and Southeast Asia

2. Tiptoeing Through Afghanistan: The Future of UN State-Building

Author:
Simon Chesterman
Publication Date:
09-2002
Content Type:
Working Paper
Institution:
International Peace Institute
Abstract:
Afghanistan represents a radically different model in the panoply of UN peace operations. On paper it resembles earlier assistance missions that provided governance and development support to post-conflict societies. In practice, however, the UN mission remains intimately involved with the Afghan Transitional Administration and therefore with the peace process that put it in place. This disjunction between formal authority and practical influence poses a challenge not only for the specific operation in Afghanistan but also to accepted models of UN peace operations more generally. Most analyses of UN peace operations suggest that the more complex the political environment, the larger the amount of resources required to complete the mandate. On any such measure, the UN Assistance Mission in Afghanistan (UNAMA) faces an uphill battle. UNAMA is instead pursuing a high-risk strategy that requires two conceptual leaps from the normal mould of peace operations. The first is that it is possible to blur the normal distinction between negotiating a peace agreement and implementing it. The second is that the UN can make up for its small mandate and limited resources through exercising greater than normal political influence. There is widespread agreement among UNAMA and most of its Afghan partners that expansion of the International Security Assistance Force (ISAF) beyond Kabul would be an important stabilizing factor in this process. If it is to be done, it should be done urgently, while all parties are still buying into the Loya Jirga process. Given the reaction of the United States and potential troop-contributing nations, however, expansion now appears highly unlikely. Every UN mission and development programme now stresses the importance of local 'ownership'. This may be the first mission where some of the local population themselves are truly taking charge. Development, however, is notoriously supply- rather than demand-driven; donor countries are infamous for pledging one thing and delivering another. Agencies must therefore take this into account when constructing fictional budgetary targets that they know will not be met, making responsible financial planning still more difficult. Compounding these problems is confusion in Afghanistan as to what projects are actually going to be funded and when. This is partly caused by the refusal of some of the largest donors to have their money pooled into a trust fund for the whole of Afghanistan. The Emergency Loya Jirga was intended to encourage Afghans from all parts of the country to 'buy into the peace process'. This phrase was used metaphorically, but should also be understood literally. Encouraging Afghans to see the solutions to their problems as lying in the embryonic institutions of the state is good politics internationally. It is also Afghanistan's best chance for stability and relative prosperity.
Topic:
Conflict Resolution, Development, Peace Studies, and United Nations
Political Geography:
Afghanistan and South Asia