UN Territorial Administration and Human Rights

The Mission in Kosovo

Gjylbehare Bella Murati

• Publisher: Taylor & Francis
• Year: 2020
• Print ISBN: 9781138103344
• eBook ISBN: 9781351593236
• Edition: 1
• Topic: Jura
• Subtopic: Bürgerrechte

This book offers an original and insightful analysis of the human rights inadequacies that arise in the practice of UN territorial administration by analysing and assessing the practice of UNMIK. It provides arguments based on law and principles to support the thesis that a comprehensive legal framework governing the activities of the UN mission is a crucial prerequisite for its proper functioning. This is complemented by a discussion of several emerging issues surrounding the UN activity on the ground, namely, its legislative, judicial, and executive power.

The author offers an extensive and well-documented analysis of the UN's capacity as a surrogate state administration to respond to the needs of the governed population and, above all, protect its fundamental rights. Based on her findings, Murati concludes that only a comprehensive mandate can serve the long term interests of the international community's objective to efficiently promote, protect, and fulfil human rights in a war-torn society.

UN Territorial Administration and Human Rights provides a detailed critical legal analysis of one of the major UN administrations of territory after the Cold War, namely, the UN administration of Kosovo from 1999 to 2008. The analysis in this book will be beneficial to international law and international relations scholars and students, as well as policymakers and persons working for international organisations. The analysis and the lessons learned through this study shed light on the challenges entailed in governing territories and rebuilding state institutions while upholding the rule of law and ensuring respect for human rights.

1
Making laws for others

Managing complexity

Introduction

The law that was applied to the territory of the former Yugoslavia did not rely sufficiently on accepted principles of international law. This problem was prevalent throughout the whole territory of former Yugoslavia. Nevertheless, the degree of unlawfulness proved to be much higher in Kosovo than in other federal units, especially after the abrogation of its autonomy in March 1989.

Empowered to exercise legislative power in the territory, soon after their deployment the UNMIK authorities embarked on a mission to build up a legal system which would strengthen the rule of law. However, this commitment faced innumerable challenges. It required the establishment of a legal framework which would enable citizens to regain trust in public administration and judicial organs, and protect and promote their human rights.

This chapter analyses sets of legal issues concerning the legislative power of UNMIK by examining its legal framework, its limitations, as well as the activities performed within the framework of its competencies. In particular, it examines the legal implications of actions taken during the initial phase. In addition, it discusses the law-making procedure, the legal nature of enactments promulgated by UNMIK’s law-making body, their powers and the implementation process, as well as their compatibility with international human rights law.

Reconstructing the legal system: “the initial law-making process”

Transforming a weak and devastated country such as Kosovo into a “rule of law society” required a proper identification of problems, allocation of human and financial resources, and finally a proper strategic plan. Above all, the UN needed to create a legal framework within which these activities could be carried out.¹ Yet this undertaking highlights a number of gaps which caused extraordinary difficulties for achieving practical outcomes.

1 About common characteristics regarding the UN’s involvement in reconstructing the post-war judicial system, see Carstein Stahn, Justice under Transitional Administration: Contours and Critique of a Paradigm, Houston Journal of International Law, Vol. 27, 2004–2005.

Given that UNSC Resolution 1244 failed to determine the applicable law in Kosovo, it caused confusion amongst both international and local actors as to which law should govern the administered territory. The confusion created a legal vacuum for several months.² Restricted by the narrow mandate set out in UNSC Resolution 1244, which secured the sovereignty of the FRY over the territory of Kosovo, the UNMIK administration insisted on the application of FRY laws.³ On the other side, the local actors strongly opposed the application of FRY/Serbian laws, claiming that these laws belonged to an oppressive regime and that many of them contained discriminatory provisions especially designed for the purpose of oppressing the Albanian population.⁴ Consequently, UNMIK found itself between a rock and a hard place. There were two options: “continuity”, which implied the continuation of the discriminatory laws; and “reform”, which required the enactment of new laws.⁵

2 See International Crisis Group’s Balkan Report, Starting from scratch in Kosovo, No. 83, 13 December 1999, p 12.

3 Russia has insisted on applying FRY laws. See Simon Chesterman, You the People, the United Nations, Transitional Administration, and State-Building, Oxford University Press, 2004, p. 166. In addition, it has been argued that the international community was largely unprepared to govern Kosovo. It was not clear which functions should be performed by international actors and which should be shared with local actors. See Jock Covey, Michael Dziedzic, and Leonard Hawley, The Quest for Visible Peace, International Intervention and Strategies for Conflict Transformation, US Institute for Peace Press, 2005, p. 166.

4 Blerim Reka, UNMIK as an International Governance in Post War Kosova: NATOs Intervention, UN Administration and Kosovar Aspirations, Shkup: Logos, 2003, p. 189.

5 See International Crises Group’s Balkan Report, supra n. 2, p. 12.

Despite insisting on total discontinuity with the FRY/Serbian legal system, surprisingly, in the middle of the consultation process the local actors proposed the application of the pre-1989 laws, in particular the Kosovo criminal code, which was unlawfully revoked by the Serbian parliament during the Milosevic regime. Some judges even began to apply this code in court proceedings.⁶ The proposal came as a result of frustration with the ongoing violence and the code’s application was seen as a pragmatic choice that would speed up the process of establishing a justice system.⁷

6 See Rosa Ehrenreich Brooks, The New Imperialism, Violence, Norms, and the “Rule of Law”, Michigan Law Review, Vol. 101, June 2003, p. 2292.

7 See International Crises Group’s Balkan Report, supra n. 2, p. 12.

Interestingly, the pre-1989 laws proposed by the Albanian lawyers were almost as inconsistent with international human rights standards as the laws of the post-1989 period.⁸

8 Regarding the criminal justice system, the Model Codes for Post-Conflict Criminal Justice offered by the United States Institute for Peace and the Galway Centre for Human Rights in collaboration with the UN Office on Drugs and Crime should be seen as a useful tool for future missions that can be implemented in transitional post-conflict situations. It takes into account the particular challenges presented by post-conflict societies and could enable those societies to move quickly towards re-establishing a criminal justice system. See Vivienne O’Connor and Colette Rausch (eds.), Model Codes for Post Criminal Justice, Peace Building and Rule of Law, United States Institute of Peace, 2007.

Designed under the Communist umbrella, they failed to meet basic human rights standards, in particular those related to property and civil law.⁹

9 See Ehrenreich Brooks, supra n. 6, Michigan Law Review, Vol. 101, June 2003, p. 2293.

However, on 25 July 1999, after a long debate, the first legal act (Regulation 1999/1)¹⁰ by which the applicable laws in Kosovo were identified was promulgated under the authority of the SRSG.¹¹ In this light, it was decided that the applicable laws should consist of the laws of the Federal Republic of Yugoslavia, laws which were valid until 24 March 1999, to the extent that they did not conflict with the accepted standards of international human rights law.¹²

10 Later amended by Regulations 1999/25 and 2000/54.

11 See Report of the Secretary General on the United Nations Interim Administration in Kosovo, 12 July 1999, UN Doc.S/1999/779, para. 35.

12 To this extent the following laws were applicable: Criminal Law of the Autonomous Province of Kosova, Criminal Procedure of the Federal Republic of Yugoslavia (SFRY), Law on General Administrative Procedure of SFRY, and several civil laws.

However, despite the fact that the applicable law had been determined, it was not possible to establish a functional legal system and ensure law and order for several months as no formal local government structures existed.

Consequently, in the aftermath of UNMIK’s deployment different legal systems were applied: those belonging to the countries whose military troops were present in the territory, namely the US, Germany, France, and Italy.¹³

13 Military contingents were grouped into four regionally based multinational brigades. For more about the initial phase of international presence deployment, see Reka, supra n. 4, p. 186. Blerim Reka was a member of the Joint Advisory Council on Legal Matters (JACLM).

Nevertheless, it is difficult to identify in which circumstances these foreign laws were applied during this period.¹⁴

14 According to de Brabandere, in the cases where the establishment of a territorial administration has been preceded by military intervention the military forces should be governed by the laws of occupation. See Eric de Brabandere supra n. 1, p. 126.

Making law without a democratic legislative body

As a result of the continuing resistance of domestic actors, in particular judges and prosecutors, to applying the existing FRY/Serb laws, in mid-August 1999, the Joint Advisory Council on Legislative Matters (JACLM), comprising both international and local actors, was established under the auspice of the SRSG, Bernard Kouchner.¹⁵ The role of JACLM was to review the existing law, to propose and provide assistance in drafting legislation for the interim administration in the areas of criminal, civil, administrative, and commercial and property law, and to advise the SRSG on legal matters.¹⁶ It was divided into several working groups, each tasked with a specific responsibility.¹⁷

15 Similarly in East Timor, a legislative body named the National Consultative Council (NCC) was assigned the task of providing advice and policy recommendations to the SRSG. By contrast with JACLM,...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• List of acronyms and abbreviations
• Preface
• Introduction: the UNMIK’s mandate in Kosovo
• 1 Making laws for others: managing complexity
• 2 The paradigm of an independent judicial system under international administration
• 3 The paradox of UNMIK’s justice system: measuring the performance of UNMIK’s courts and its quasi-judicial bodies
• 4 The extent of UNMIK’s authority on the ground
• 5 Between immunity and accountability: the immunity and privileges of UNMIK
• 6 Holding UNMIK accountable for human rights violations
• General conclusions
• Bibliography
• Index