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United Nations justice
United Nations justice:
Legal and judicial reform
in governance operations
Calin Trenkov-Wermuth
© United Nations University, 2010

The views expressed in this publication are those of the author and do not neces-
sarily reflect the views of the United Nations University.

United Nations University Press

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ISBN 978-92-808-1173-5

Library of Congress Cataloging-in-Publication Data

Trenkov-Wermuth, Calin.
United Nations justice : legal and judicial reform in governance operations /
Calin Trenkov-Wermuth.
p. cm.
Includes bibliographical references and index.
ISBN 978-9280811735 (pbk. : alk. paper) 1. United Nations. 2. Justice,
Administration of—International cooperation. 3. Social justice—International
cooperation. I. Title.
K2100.T75 2010
341.5'2—dc22 2009038156
Endorsements

“Extensively researched and powerfully argued, United Nations Justice is

a penetrating criticism of past efforts to bring the rule of law to conflict-
ridden countries and an inspiring effort to identify better practices that
can help the UN assist those countries in the creation of a sustainable
peace.”
Michael W. Doyle, Harold Brown Professor of International Affairs, Law
and Political Science, Columbia University

“Establishing sustainable justice systems in societies torn by civil strife is

an enormously complex, sensitive, and ambitious task. Few have tried it,
fewer have succeeded. United Nations Justice provides a candid assess-
ment of two such efforts: the United Nations’ attempts to nurture such
transformations in Kosovo and East Timor. The author questions the
UN’s approach as much as its delivery. In doing so, he raises timely ques-
tions that demand further reflection by scholars, policy analysts, and prac-
titioners alike. Not everyone will agree with his provocative conclusions,
but we could all benefit from the debate that should ensue.”
Edward C. Luck, Senior Vice President, International Peace Institute, and
Professor of Practice, School of International and Public Affairs, Colum-
bia University.

“As Dr Trenkov-Wermuth argues in this important book, the UN’s

attempts to craft judicial and legal systems in the territories it has found
itself administering has been deeply flawed, partly because they have
been too ambitious and partly because they have too often failed to take
note of local custom and reality. His critique deserves to be read by all
those, scholars and practitioners alike, with an interest in improving the
process of post conflict reconstruction.”
James Mayall, Emeritus Sir Patrick Sheehy Professor of International Re-
lations, University of Cambridge.

“Calin Trenkov-Wermuth’s book is a sobering assessment of the con-

siderable obstacles and small victories, but also the avoidable fumbles
and troubling legacies, of the UN’s unprecedented efforts at comprehen-
sive legal and judicial reform in Kosovo and East Timor – a remarkable
and sorely needed memento for future operations.”
Cesare P.R. Romano, co-Director, Project on International Courts and
Tribunals and Loyola Law School Los Angeles

“This study marks an important new contribution to the scholarship on

legal and judicial reform carried out under the auspices of the UN. It is
highly relevant to scholars and practitioners from all disciplines who ex-
plore the relationship between international rule-of-law reform and local
ownership.”
Carsten Stahn, Leiden University & Grotius Centre for International
Legal Studies, The Hague

“This important and timely book analyzes the very considerable deficien-
cies of international legal and judicial interventions. What the author
demonstrates is that these failures are as much conceptual as program-
matic, with outcomes that can undermine the very ideals that inspire
them. The study is well grounded, unflinching in its findings and conclu-
sions and provides compelling insights important for practitioners, plan-
ners and theorists.”
Jim Whitman, Head, Department of Peace Studies, University of Bradford
To
my parents

In memory of
Khristo and Lilia Trenkov, and Max Wermuth

In gratitude to
Israel Almog, David and Sarah Evans, Gitta and Gee Martin, Georg and
Renate Mestmacher, Marjorie Nieuwenhuis, Blagoe and Branka Petrović,
Charles and Sally Svenson, Erwin and Martina Wendland, Anne and
Allen Woolf
For man, when perfected, is the best of animals, but, when separated from
law and justice, he is the worst of all. . .

Aristotle, Politics, Book I, Chapter 2

Contents

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 Legal and judicial reform and the United Nations: Early

practice and assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2 Introduction to the case studies: Assessment criteria, case

study guidelines and case selection . . . . . . . . . . . . . . . . . . . . . . . . . 33

3 The UN Interim Administration Mission in Kosovo . . . . . . . . . . . 50

4 The UN Transitional Administration in East Timor . . . . . . . . . . . . 95

5 Legal and judicial reform reconsidered . . . . . . . . . . . . . . . . . . . . . . 151

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Acknowledgements

Writing a book requires the mental and physical exertions of one person,
but the intellectual, financial and moral contributions of many. I therefore
wish to thank the individuals and institutions who supported me while I
researched, wrote and edited this work. First and foremost, I would like
to thank Marc Weller, who supervised this research in its earlier guise
as a PhD dissertation; I am very grateful for his expert guidance and
rigorous feedback at all stages of the process, but also for providing me
with the opportunity to expand my knowledge of the field through my
involvement with the work of various research projects he directs. I also
owe a debt of gratitude to Maurice Pearton, who read and commented
on several drafts of all chapters, and whose editorial skill and moral
support were invaluable for the completion of the project. The insight-
ful comments and constructive feedback I received from my examiners,
James Mayall and Jim Whitman, were also hugely beneficial in turning
the thesis into a book.
Several individuals at the Centre of International Studies at the Uni-
versity of Cambridge were also particularly helpful: I am grateful to
Geoffrey Edwards for his refreshing feedback on various chapters;
Duncan Bell and Mette Eilstrup-Sangiovanni kindly offered their views
on my methodology; Tarak Barkawi offered valuable criticism of several
chapters I presented at the centre’s colloquium; and Brendan Simms was
supportive at several key junctures. Finally, Wendy Cooke and Wendy
Slaninka provided the type of administrative support which students are
not normally privileged to receive.

x
 ACKNOWLEDGEMENTS xi

I also extend my gratitude to the members of several other faculties,

at both Cambridge and other universities. Devon Curtis’s advice on my
methodology and on the general direction of the study proved to be in-
valuable. T. R. S. Allan clarified some questions on jurisprudence, and
Oliver Ramsbotham helpfully commented on specific ideas and critiques
I wished to propose. John Micgiel of the Harriman Institute provided
me with an intellectual home during my stay at Columbia University,
and Michael Doyle, Edward Luck, Simon Chesterman and Vivienne
O’Connor offered many valuable insights on legal and judicial reform
in governance operations. Kenneth Waltz helped and encouraged me to
challenge my own preconceptions about the United Nations during his
weekly graduate seminar. Finally, Geoffrey Hawthorn, Glen Rangwala
and Mary Sarotte of the Faculty of Social and Political Sciences at Cam-
bridge provided me with the opportunity to teach international politics,
an experience which has in itself helped me to learn as much about my
chosen subject as I did throughout all my prior education. In this respect,
I would also like to express my gratitude to the students whom I have
had the privilege to supervise over the course of four years, and whose
intellect and curiosity helped my own intellectual growth.
Various aspects of my research were funded by different bodies, and
I wish to acknowledge the contribution of these trusts and institutions.
The Kurt Hahn Trust Scholarship offered by the University of Cambridge
in conjunction with the Deutscher Akademischer Austausch Dienst
(DAAD) and the Allen, Meek and Reed Award offered by the Board
of Graduate Studies at Cambridge were very helpful for my research
period; the International Studies Committee of the Gilbert Murray Trust
made it possible for me to carry out research in New York; the Fitz-
william Society Trust Research Fund enabled me to travel to Kosovo;
and the Dick Haywood Trust and the Cambridge Board of Graduate
Studies Worts Travelling Scholars Award helped me to undertake re-
search in Geneva.
Most of the interviews conducted in the course of field research were
confidential. While I do not directly cite anyone in the text, I wish to
acknowledge those who kindly shared their time and candidly offered
their wisdom in New York, Pristina and Geneva: Wendy Brafman, Jean-
Christian Cady, Jack Christofides, Haki Demolli, Ahmet Hasolli, Nei-
thart Hoefer-Wissing, Alex Hug, Robert Husbands, Philip Kanning,
Isabella Karlowicz, Iain King, Nesrin Lushta, Henry McGowen, Beth
Miller, Charles Nihan, Robert Pulver, Pranvera Recica, Mona Rishmawi,
Annamyriam Roccatello, Elizabeth Rolando, Kirsti Samuels, Eileen
Simpson, Neeraj Singh and Michael Steiner. Erwin and Martina Wend-
land in Geneva and Eileen Simpson in Pristina assisted me with the set-
ting up of interviews, and offered generous hospitality.
xii UNITED NATIONS JUSTICE

Without the assistance of the staff of the libraries where much of the
research for this dissertation was carried out, the task of researching
would have been a far more daunting experience, and I therefore wish to
thank those whose help remains all too often unacknowledged. They are
the staffs of the Cambridge University Library, the Squire Law Library,
the Social and Political Sciences faculty library, the Mill Lane Library
and the Fitzwilliam College Library at the University of Cambridge; the
Butler Library and the Lehman Social Sciences Library at Columbia
University; the New York Public Library; the British Library; the Bib-
liothèque de Sciences-Po; the Bibliothèque Sainte-Geneviève; and the
Bibliothèque publique d’information du Centre Pompidou.
I also wish to thank the Centre of International Studies at Cambridge
for its institutional support, and Fitzwilliam College for its pastoral sup-
port. And I am very grateful to Vesselin Popovski for first introducing me
to UNU Press, and to Robert Davis for his professionalism in guiding me
through the publication process.
Finally, a number of friends and several family members contributed
to this project, both directly and indirectly. Jehangir Khan supervised my
first work experience at the United Nations, which inspired my interest to
study the work of the organization further. My discussions with Patrick
Lenta proved instrumental for the book’s methodology and aided my
understanding of legal theory. Cecile Mouly helped to clarify key con-
cepts and theoretical debates regarding peace research. The interesting
discussions I had with Axel Wennmann on UN politics and affairs gave
me insight into the internal workings of the organization. Richard Moules
offered his practical assistance on several occasions. Martin, Jenny, Emma
and Chris Jones were my adoptive family in the United Kingdom, and I
am grateful for their hospitality. Eleni Orfanidou helped me to under-
stand more about life, love and friendship than I could have hoped for.
My friends from Fitzwilliam College and beyond provided me with sup-
port and friendship that turned my experience of Cambridge, and of
writing this study, into the most enjoyable and memorable years of my
life. And I thank Cecily Campbell-Bezat for waking in me feelings, hopes
and dreams I had when we were children.
In proofreading the entire draft, my stepfather, Peter Atkinson, offered
invaluable editorial assistance. My father, Kamen Trenkov, who had a
keen interest in my topic and my progress from the beginning, offered
moral support. My brother and sister-in-law, Jassen and Ashley Trenkov,
have been steadfast supporters throughout, and I am especially grateful
to my brother for his technical assistance. But my greatest appreciation
goes to my mother, Judith Wermuth-Atkinson, whose editorial assist-
ance in the final days helped immensely, but more importantly who went
 ACKNOWLEDGEMENTS xiii

beyond the usual call of a mother’s duty in finding the courage to leave
her old life behind and escape from communist Bulgaria 22 years ago,
so that she could offer a life to my brother and myself that has now sur-
passed everything that we ever imagined to be possible.
Abbreviations

CIVPOL civilian police

COMKFOR Commander of KFOR
CPA Coalition Provisional Authority (Iraq)
DMU Detainee Management Unit (East Timor)
DPKO UN Department of Peacekeeping Operations
ECHR European Convention on Human Rights
EU European Union
FALINTIL Forcas Armadas de Libertacao Nacional de Timor Leste (National
Armed Forces for the Liberation of East Timor)
FRY Federal Republic of Yugoslavia
GC IV Geneva Convention IV
HRFOR UN Human Rights Field Operation in Rwanda
IAC Interim Administrative Council (Kosovo)
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IJPs international judges and prosecutors
INTERFET International Force for East Timor
JAC/PJA Joint Advisory Council on Provisional Judicial Appointments
JIAS Joint Interim Administrative Structure (Kosovo)
JSMP Judicial System Monitoring Programme
JSAP Judicial System Assessment Program (Bosnia)
KFOR Kosovo Force
KLA Kosovo Liberation Army

xiv
 ABBREVIATIONS xv

KTC Kosovo Transitional Council

KWECC Kosovo War and Ethnic Crimes Court
LSMS Legal System Monitoring Section
LRA Lord’s Resistance Army
MICIVIH UN/OAS International Civilian Mission in Haiti
NCC National Consultative Council (East Timor)
NATO North Atlantic Treaty Organization
NGO non-governmental organization
OAS Organization of American States
OCHA UN Office for the Coordination of Humanitarian Affairs
OHCHR UN Office of the High Commissioner for Human Rights
ONUC UN Operation in the Congo
ONUSAL UN Observer Mission in El Salvador
OSCE Organisation for Security and Co-operation in Europe
PISG Provisional Institutions of Self-Government (Kosovo)
RUF Revolutionary United Front (Sierra Leone)
SC UN Security Council
SCU Serious Crimes Unit (East Timor)
SOC State of Cambodia
SRSG Special Representative of the Secretary-General
STL Special Tribunal for Lebanon
TA Transitional Administrator (East Timor)
TJSC Transitional Judicial Service Commission (East Timor)
UDT Uniao Democratica Timorense (Timorese Democratic Union)
UN United Nations
UNAMET UN Mission in East Timor
UNDP UN Development Programme
UNHCR UN High Commissioner for Refugees
UNITAF Unified Task Force (Somalia)
UNMIBH UN Mission in Bosnia and Herzegovina
UNMIK UN Interim Administration Mission in Kosovo
UNMISET UN Mission of Support in East Timor
UNOSOM UN Operation in Somalia I & II
UNPOL UN Police
UNTAC UN Transitional Authority in Cambodia
UNTAES UN Transitional Administration in Eastern Slavonia, Baranja and
Western Sirmium
UNTAET UN Transitional Administration in East Timor
UNTAG UN Transitional Assistance Group (Namibia)
UNTEA UN Temporary Executive Authority (West Irian)
USAID US Agency for International Development
 1

Introduction

For the first four decades of the existence of the United Nations, Cold
War rivalries between the United States and the Soviet Union hampered
the organization’s work in many areas. Its conflict management activities
were mainly limited to what came to be known as peacekeeping opera-
tions, a concept invented by the then Canadian Minister of Foreign
Affairs, Lester Pearson, and UN Secretary-General Dag Hammarskjöld
in response to the need to oversee the withdrawal of French, British and
Israeli troops from Suez in 1956. Starting with the UN Emergency Force
in Egypt in 1956, most peacekeeping operations until the late 1980s took
a similar form: that of a lightly armed military corps, prohibited from the
use of force, with the exception of self-defence needs, and from inter-
fering in the domestic politics of the host state; traditionally their task
was either to monitor a cease-fire agreement or to patrol a neutral buffer
zone between adversaries.1
The territorial rivalries of the two superpowers ensured that there was
little deviation from this basic model of UN engagement in the manage-
ment of hostilities. The United States and the USSR wanted to maintain
a dominant influence over any political developments in their respective
spheres of influence, and were therefore keen to minimize any outside
interference; thus, a new peacekeeping mission could be set up only to
the extent that the strategic interests of either of the two powers were
not significantly threatened.2 Furthermore, apart from Article 2(7) of the
UN Charter expressly prohibiting the organization’s interference in mat-
ters that fall within the domestic jurisdiction of the state, the ideological

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
2 UNITED NATIONS JUSTICE

differences of the superpowers also ensured that the United Nations

would stay out of the domestic politics of states, failing or not, because
any such interference would be ideologically charged: it would either sup-
port the liberal democratic and market-oriented economic model of the
United States, or the model of the Soviet Union, a one-party people’s de-
mocracy with public ownership and control of the means of production.3
The end of the Cold War in the late 1980s, and the collapse of the
Soviet Union in 1991, gave rise to a new era of international involve-
ment in inter- and intra-state conflicts.4 This was the case mainly for two
reasons. Firstly, the end of the confrontation between the superpowers
changed their perception of the international community’s involvement
in conflicts as a threat to their strategic interests; thus there was less rea-
son for either the United States or Russia, as the successor to the Soviet
seat on the Security Council, to block any UN moves to establish peace
missions. And secondly, the end of the tensions also signalled the end of
much of the military and economic aid which the superpowers had used
to influence and prop up various regimes. On both grounds, the United
States and Russia began to allow the international community to become
involved in conflict resolution in areas that were no longer strategically
significant to them.5
Nevertheless, the end of the Cold War itself sparked intra-state con-
flicts, allowing political problems hitherto suppressed to come to the fore:
the dissolution of Yugoslavia, for instance, although brewing for at least
10 years after Tito’s death in 1980, did not become a reality until 1991.6
Furthermore, the end to external financing of certain regimes prevented
the continued suppression of their internal political opposition, and
ultimately led to violent civil conflicts. For this reason, once external aid
for Somalia began to dry up in the early 1990s, Siad Barre’s government
was driven from office by his political enemies, who then went on to fight
among each other for political control.7 This not only led to a protracted
civil conflict, but also to a large-scale humanitarian crisis.
Yet with the UN’s newly found freedom to intervene in conflicts and
regions where it was previously unable to help came increasingly com-
plex mandates, which not only called for its traditional peacekeeping role,
but also for the United Nations to make, restore, enforce or build peace.
The “Agenda for Peace” of 1992 signalled a change in the organizational
culture, from one that focused mainly on conflict management or resolu-
tion to one that also incorporated conflict prevention as a main goal of
the organization.8 In particular, the notion of peacebuilding entered the
UN’s official language, and was regarded as key in order for peacemaking
and peacekeeping operations to be “truly successful”.9 Peacebuilding ac-
tivities were defined by UN Secretary-General Boutros Boutros-Ghali as
actions “to identify and support structures which will tend to consolidate
 INTRODUCTION 3

peace”10 in order “to prevent the recurrence of violence”.11 The action

was to be undertaken through a set of mechanisms which included the
disarmament of warring factions and the restoration of order, the gather-
ing and potential destruction of weapons, the repatriation of refugees, the
training of security personnel, the promotion of human rights, the reform
and strengthening of government institutions and the enhancement of
political participation through formal and informal procedures.12
The increasingly complex peacekeeping, peace-enforcement and peace-
building demands of the early 1990s eventually culminated in mandates
which called for the UN’s outright governance of war-torn regions. Three
territories came to be governed by the United Nations: Eastern Slavonia
in 1996 (UNTAES), Kosovo in 1999 (UNMIK) and East Timor, also in
1999 (UNTAET). What made these three UN missions distinctive is that
all sovereign powers traditionally associated with the state – executive,
legislative and judicial – were vested in them; but while UNTAES fo-
cused on the peaceful reintegration of Eastern Slavonia into an existing
polity, Croatia,13 UNMIK and UNTAET had to set up new political en-
tities. They had to govern all aspects of public life, from the running of
schools and public utilities to fiscal management and law enforcement.14
This exercise of sovereign power was an entirely different enterprise
from any previous peacekeeping activities the United Nations had under-
taken, no matter what their complexity,15 and presented problems for
which any precedents were not directly helpful.
One of the important areas of peacebuilding for the United Nations
was rule-of-law reform. UN attention to this area was triggered by its ex-
perience in the transitional authority mission to Cambodia (UNTAC):16
since that protracted conflict had left Cambodia’s justice system in a
debilitated state, the mission’s mandate required the United Nations to
assist Cambodia’s Supreme National Authority with judicial reform and
administration prior to national elections.17 However, UNTAC failed
to accord sufficient resources and attention to this task, which ended
in disappointing and inconsequential results.18 This negative experience
led in 1993 to the then Australian Foreign Minister, Gareth Evans, pro-
posing the introduction of UN justice packages, which “should be part
of any peacekeeping and post-conflict peacebuilding exercises in coun-
tries where the rule of law, and the institutions needed to support it, have
manifestly broken down”.19 Although the United Nations failed to adopt
and in fact officially rejected the idea of the justice package a decade
after its initial conception,20 from 1993 onwards the organization began
to pay more attention to rule-of-law reform.
While police reform in particular became a central and often success-
ful feature of many of the UN’s missions during the 1990s,21 legal and
judicial reform proved to be a much more challenging and controversial
4 UNITED NATIONS JUSTICE

area of peacebuilding. In 2000 the report of the UN Panel on Peace

Operations noted that:

the United Nations has faced situations in the past decade where the
Security Council has authorized the deployment of several thousand police in
a peacekeeping operation but has resisted the notion of providing the same
operation with even 20 or 30 criminal justice experts.22

But what the UN’s experience has shown is that due to the inter-
dependence of the “triad”23 of the justice system – the police, the judiciary
and the prisons – a failure to reform one of these sectors will undermine
any achievements reached in any of the other sectors: in Haiti, for in-
stance, the UN’s human rights staff observed that the effectiveness of
the newly reformed police force was undermined by the weakness of the
judicial institutions and prisons.24
In addition to political and budgetary problems within the United
Nations itself and among its membership regarding judicial and legal re-
form efforts, the organization had to contend with many technical, struc-
tural and substantive problems in the field. For instance, in countries that
had been plagued and polarized by civil war, and that had little or no ex-
perience of democratic institutions, political influence over the judiciary
was a common phenomenon.25 Furthermore, the relatively low income
of judicial officials in societies emerging from conflict and economic
hardship allowed for extensive corruption in the judiciary. Both of these
problems created a real challenge for the United Nations in establishing
judicial independence. Haiti is a particular case in point. Its justice sys-
tem had suffered greatly under the military dictatorship of Raoul Cédras
between 1991 and 1993: the military dominated the judiciary, which was
in itself corrupt; the judges and prosecutors lacked adequate legal train-
ing, and most facilities were in a state of disrepair; civilian and military
leaders were immune to prosecution; and the people had little respect for
rule-of-law officials.26
Furthermore, the grim reality of the sheer physical loss and damage to
judicial institutions and materials, and the death or flight of qualified
legal and judicial personnel, created a huge obstacle to UN reconstruc-
tion and reform. In Kosovo and East Timor the retreating Serb and Indo-
nesian forces, respectively, left a trail of destruction; most court buildings
in East Timor had been burned, and most court equipment and materials
necessary for legal practice, such as legal texts and case files, had been
looted, dislocated or burned.27 In Kosovo many courtrooms had been
booby-trapped or mined, records destroyed or dislocated and court and
office equipment looted.28
 INTRODUCTION 5

Moreover, after Yugoslav President Slobodan Milošević had stripped

Kosovo of its autonomy in 1989, he replaced many Albanian judges and
prosecutors with Serbian appointees. Most of these left their posts along
with the Serbian forces retreating from Kosovo in 1999. So Kosovo was
left with only a few judges and prosecutors; many of them had last served
in 1989, but now they had to fill important posts without adequate train-
ing or recent legal experience, a not uncommon scenario in UN missions.
In East Timor all judges and prosecutors had been directly appointed
from Indonesia, and after the withdrawal of the Indonesian forces, no
jurists were left. The United Nations had to attempt to recruit individuals
with any sort of legal experience by dropping leaflets from aircraft; even
after these efforts, only a handful of individuals applied for judicial posts.
Thus the United Nations was assigned the daunting task of building a
judiciary entirely anew.29
In addition, the United Nations frequently had to contend with either
the absence or the inadequacy of legal codes, and thus had somehow to
fill the legal vacuum or the gaps in the law. In Cambodia the Vietnamese-
drawn criminal and criminal procedure codes were not viable if the
United Nations was to achieve its key objectives, and consequently
UNTAC chose to draft and enact its own laws. This effort, however, was
marred by the fact that these UN laws failed to live up to internation-
al standards: the absence of consent, for instance, was not included as a
key factor in the offence of rape.30 In Somalia the former Italian penal
code was utilized,31 and in Afghanistan the Bonn Agreement resurrected
Afghanistan’s 1964 constitution as the central legal document to guide
the legal and political development of the country.32 In East Timor the
Indonesian legal code was chosen as the applicable law, and in Kosovo
the laws of the Federal Republic of Yugoslavia were used for the first
five months of the mission, until this unpopular decision was overturned,
mainly as a result of effective protests by Kosovar jurists who favoured
Kosovo’s legal code of 1989 instead. The difficulty with these legal codes
was that they were inadequate in addressing many modern crimes, and
were unable to respond to the needs of a modern economy.
Finally, the task of reforming the legal and judicial systems in the re-
spective missions was made significantly more difficult because of the
lack of historical precedent for this type of assignment and thus ade-
quate practical experience from which the United Nations might draw
lessons. Given the organization’s membership and prior involvement
with decolonization, a consideration of colonial experience and practice
may have been inappropriate. Furthermore, the United Nations was also
not an occupying power, and certainly did not have the resources and
financial means of one; thus drawing on historical examples such as US
6 UNITED NATIONS JUSTICE

involvement with legal and judicial reforms in Germany and Japan after
the Second World War would have yielded few useful lessons. The United
Nations could and did adopt some of the guidelines on legal and judicial
matters for territories under occupation, as outlined in the law on bel-
ligerent occupation, as part of its approach in its governance operations.
However, applying the law of belligerent occupation to missions that did
not have the resources of an occupying power, and whose mandate in-
cluded not only judicial administration but by implication also the estab-
lishment of a sustainable legal system, did not prove to be useful.
For these reasons, and in particular the lack of a real model on which
to base its approach, many of the UN’s early decisions on justice sector
reform and transitional justice were broadly taken ad hoc. But after some
initial mishaps with its ad hoc decisions, after a decade of gruesome vio-
lence and after some sharp academic criticisms about its peacebuilding
and justice sector reform endeavours, the United Nations began to de-
velop certain assumptions on how best to restore the rule of law in post-
conflict societies, how to address problems of transitional justice, and in
this respect also how to undertake legal and judicial reform.
By the time the United Nations came to govern Kosovo and East
Timor in 1999, some of these assumptions had taken a firm hold in the
UN’s thinking on justice sector reform, and the approach which emerged
consisted of five key elements: firstly, the laws chosen for the beginning of
a mission had to be based on previously applicable legal codes, and these
codes had to be as comprehensive as possible; secondly, the chosen legal
framework had to incorporate a complete human rights catalogue from
the beginning of a mission; thirdly, the courts had to continue to function
or be re-established in the same configuration as had existed previously
in a territory from the beginning of the mission; fourthly, past atrocities
needed to be addressed promptly, and wherever necessary through the
local legal framework and court system; and fifthly, local participation in
the judicial process was to be pursued from the start of the mission, and
to the fullest extent possible.
The central argument of this book is that these five main elements of
the UN’s approach were not suited to the task of establishing a sustain-
able legal system, largely because they failed to address adequately some
of the key tensions at the heart of such governance operations. These ten-
sions stem firstly from a mission’s need to balance the demands for order
and security on the one hand and justice on the other hand, and secondly
from a mission’s need to govern a territory to a high standard while also
helping to empower the local community through local ownership of in-
stitutional processes. The failure to take such tensions into account led to
the violation of numerous legal principles and judicial norms, to frequent
and major local opposition to various UN decisions, and in some in-
 INTRODUCTION 7

stances to increased levels of violence and political destabilization. In

essence, the approach confused the ends with the means: there appears
to have been a naïve assumption that by starting with what should be the
final product of the reform efforts, the desired results could be achieved.
This assumption not only proved to be ineffectual, but also yielded an ap-
proach which threatened to undermine the fundamental goals of justice
and the re-establishment of the rule of law.
It is clear that a sustainable legal system is vital for the rule of law in
any society, and that the rule of law is vital for a sustainable peace. As
Kofi Annan has acknowledged, the United Nations has “learned that the
rule of law delayed is lasting peace denied and that justice is the hand-
maiden of true peace”.33 Thus the failure to reform the legal framework
and judicial institutions quickly and effectively, and thereby to aid in the
creation of a sustainable legal system, has the potential to result in an
eventual relapse into violence. In this respect, it is crucial to understand
the failures of the UN’s reform method, and how the UN’s approach has
itself contributed to problems in this area, since such an understanding
may render any future governance operations with a justice sector reform
mandate more effective and successful. While this study focuses predomi-
nantly on uncovering, analysing and assessing the UN’s approach to legal
and judicial reform in its governance operations, some of the alternative
methods proposed in the literature, which may better balance the above-
mentioned tensions, thus decreasing the likelihood that legal principles
and judicial norms are violated in the reform process and increasing the
likelihood that a sustainable legal system will be established, are analysed
and evaluated in the final chapter.
Delay to the rule of law in early UN peacebuilding operations, start-
ing with Namibia in 1989, resulted from the ad hoc basis of decisions on
justice sector reform. But by the time the United Nations began admin-
istering Kosovo and East Timor, a decade’s worth of failed peacebuilding
experiences, together with academic developments in the areas of tran-
sitional justice and peacebuilding and the changing nature of the post–
Cold War conflicts, had led the United Nations to adopt the assumptions
about justice sector reform, and the particular approach to such reforms,
discussed above. However, much of the literature on the subject presents
the UN’s reform decisions in a way which fails to account for these as-
sumptions and the approach which they led to. Such accounts clearly lean
towards an explanation of key decisions as having been taken on an ad
hoc basis, depending on the particular circumstances and exigencies found
in the territories under administration. The principal legal adviser to
the UN Transitional Administration Mission in East Timor (UNTAET),
Hansjoerg Strohmeyer, presents the UN’s decision on the choice of law
in Kosovo and East Timor as having been taken ad hoc for “practical”
8 UNITED NATIONS JUSTICE

reasons,34 an explanation which ignores the political context, the legal

rationale and the theoretical basis underpinning this decision. Thus, in
addition to highlighting the five key elements to the UN’s approach to
legal and judicial reform in both Kosovo and East Timor, this book will
root these elements within their academic, political, legal and historical
context.
It is undeniable that many of the difficulties which the United Nations
encountered with its legal and judicial reform efforts resulted from in-
adequate funding and resources, and inappropriate decisions taken by
particular individuals. But explanations of the difficulties based on these
factors, however true, fail to relate to the key elements of the UN’s ap-
proach and the assumptions which underpinned those decisions. Hence
the solution to the problems lies not solely in better funding and more
resources, as advocated in a number of articles and reports.35 The UN’s
own approach contributed to and in part created the difficulties which
the organization encountered in reforming the legal system in the ter-
ritories it administered, and thus a better understanding of the way in
which this occurred will lay the groundwork for an approach which leads
to fewer complications.
To date, there is no comprehensive account and analysis of the UN’s
approach to legal and judicial reform in its governance operations.
The issue of international territorial administration and the UN’s gov-
ernance of war-torn societies is treated in a number of books written
on the subject.36 There are also various articles and reports that focus
broadly on the subject of international territorial administration, or
more specifically on the UN’s efforts to that end.37 Legal and judicial
reform as an aspect of rule-of-law reform, and of international territo-
rial administration more broadly, is addressed in some of those works.
There are articles which deal with particular aspects of legal and judi-
cial reform in governance operations, e.g. the establishment of special
courts, tribunals and internationalized panels for the addressing of past
atrocities, the deployment of international judges and prosecutors, and
various specific rule-of-law issues.38 One book focuses exclusively on the
new internationalized criminal courts.39 Another deals with the challenges
of addressing serious crimes in post-conflict societies.40 A third deals with
the establishment of the rule of law in UN governance operations in broad
terms, but does not aim to focus on transitional justice as such.41 Some
authors try to tackle particular problems, such as how to address the legal
vacuum in the immediate aftermath of a conflict, for instance focusing on
model legal codes42 or the role of legal advisers in international territo-
rial administration;43 others deal with the question of what lessons can be
learned from legal and judicial reform efforts in multidimensional peace-
keeping operations, and how to strengthen the rule of law in such op-
erations.44 However, such lessons learned accounts are broader in scope
 INTRODUCTION 9

and draw lessons that apply more generally to rule of law reform in all
types of multidimensional peace operations, whereas this study focus-
es more in depth on legal and judicial reform in operations where the
UN has governed a territory. And the aforementioned articles, on the
other hand, are too focused on particular aspects of the reform efforts.
An attempt to discuss legal reform and judicial reconstruction in gov-
ernance operations was made by an official directly involved with and
responsible for many of the key reform decisions taken in Kosovo and
East Timor, but he fails to discuss flaws and mistakes made during the
operations.45
Furthermore, no article or study accounts for all key elements of the
UN’s approach, or attempts to link that approach to the intellectual as-
sumptions which underpinned it and the theories which had an impact
on it. Also, a number of the works have evaluated some aspects of that
approach in terms of internationally accepted standards of justice, par-
ticularly as reflected in international human rights instruments, but an at-
tempt to assess and evaluate it through legal theory is lacking. This book
attempts a more comprehensive explanation of the UN’s approach to legal
and judicial reform in its governance operations, and also an assessment
and evaluation of that approach through the lens of jurisprudence.
What renders this study important is the fact that the UN’s experience
with such reforms in its governance operations is likely to inform not
only any similar future UN endeavours in international territorial admin-
istrations with a justice sector reform mandate, but also more broadly the
conduct of such reforms in the UN’s peace-assistance missions, and the
conduct of such reforms undertaken by other bodies and organizations.
While the international community has taken a step back from govern-
ance operations at the moment, as the light-footprint46 approach which
was adopted in Afghanistan in 2001 and in some of the UN’s subsequent
missions clearly illustrates, the history of international territorial admini-
stration throughout the twentieth century and the international commu-
nity’s most recent efforts to that end in Eastern Slavonia, Kosovo, East
Timor and Bosnia teach us that the international community may sooner
or later revert to the model of international governance again.47 Given
the challenges and difficulties which the United Nations faced with such
reforms, it is important to undertake a comprehensive analysis and assess-
ment of the UN’s approach, so as to gain an insight into the ways in which
that approach itself contributed to the problems, and the ways in which
it must be adjusted so as to lead to a better and improved method in
the future. However, even if no governance operations were ever under-
taken again, it is clear that the UN’s experience with legal and judicial re-
forms is likely to hold many valuable lessons for its own peace-assistance
missions where such reforms have to be undertaken, as well as for the
endeavours of other institutions involved with such reforms.
10 UNITED NATIONS JUSTICE

While many intergovernmental, regional, non-governmental and gov-

ernmental organizations and bodies have become involved with justice
sector reforms in recent years,48 the particular interest here in UN prac-
tice stems from the fact that no other organization has been involved in
such reforms to the same extent as the United Nations: only the United
Nations has been mandated in recent years to establish a legal system in
a post-conflict society virtually from the ground up; all other organiza-
tions have been involved in such reforms primarily in an advisory capac-
ity, and have mostly dealt with a legal system that was already in place.
Furthermore, the focus on UN operations is also because the United
Nations has been involved in international territorial administration
more than any other institution or body in the last 60 years. This fact has
a bearing on the relevance of the study’s focus on UN operations, since
it serves as an indication that any potential future governance missions
will more likely than not be led by the United Nations, and therefore UN
practice and its particular methods of reforming the justice sector merit
close scrutiny. And finally, focusing on legal and judicial reform in UN
governance operations, rather than within a broader context, makes the
subject more manageable within the given limits, and allows for sufficient
breadth and depth in the case-study analysis.
It should be stressed here that the book will not consider any questions
and issues relating to legal and judicial reform from an organizational or
managerial perspective: for instance, questions about where within a UN
mission, or the United Nations more broadly, decisions on such reforms
should be made. The question as to which department or UN body plays
or should play the leading role on issues of rule-of-law reform is very in-
teresting indeed, and until relatively recently the matters were not clear-
cut: the Office of the High Commissioner for Human Rights (OHCHR)
was designated as the focal point for rule-of-law issues within the UN
system for a long time. But while it undertook noble initiatives, such as
the development of various rule-of-law tools for post-conflict states,49 the
relatively small size and budget of the institution did not place it in a
position to undertake initiatives that go beyond the publishing of reports
which offer practical guidance on the matter to field missions, and to be-
come actively involved with rule-of-law reform in peace operations itself.
Most of the legal and judicial reform efforts have been run directly by
the field missions themselves and thus also indirectly by the UN’s De-
partment of Peacekeeping Operations, which has been in charge of these
missions. However, despite such a key responsibility and the depart-
ment’s extensive involvement with legal and judicial reform through its
missions, it has employed in the past only a few criminal justice and rule-
of-law experts, whose duties have been stretched well beyond capacity,
frequently mandating them to be in several places at the same time.50
 INTRODUCTION 11

Furthermore, the UN’s Office of Legal Affairs was consulted on some

legal and judicial reform matters for the UN’s governance operations, but
it did not play a formal role in the reforms undertaken in the UN’s mis-
sions. And while the crisis prevention and recovery efforts of the UN De-
velopment Programme (UNDP) have focused over the course of the past
decade to no small extent on rule-of-law reform and transitional justice,51
and the UNDP does have capacity and some funding for legal and judi-
cial reform initiatives, it was not extensively involved in such reforms in
the UN’s governance operations.
It is evident that for many years the United Nations lacked clarity as to
which of its departments, units or sister organizations should lead on rule-
of-law reform matters. At one point more than 10 different UN depart-
ments or agencies claimed expertise in the rule-of-law area, and some of
these were running competing law reform programmes, sometimes even
in the same country.52 This confusing and competitive approach led to
various calls, from member states and experts alike, for a more coordi-
nated and coherent approach to such reforms.53 Since 2007, the Rule of
Law Coordination and Resource Group, bringing together nine leading
UN departments and agencies engaged in rule-of-law activities, and sup-
ported by a Rule of Law Unit, has attempted to improve the coordina-
tion of such efforts. Whether this coordination mechanism will be enough
remains uncertain, but it is a positive step step in the right direction. But
while the question of how to best coordinate rule of law reform efforts is
highly interesting, this book will not broach this subject. Such questions,
as well as questions about where decisions and advice on matters of legal
and judicial reform within a particular mission should originate, would
best be answered in a study that focuses on organizational management –
something which this work does not aspire to do.
There are a few other areas that this book will not touch upon: since
this is essentially not a legal study, it does not concern itself with any
major discussions on subject matter jurisdiction, legal procedures, spe-
cific issues related to substantive criminal or procedural law, or any overly
legalistic accounts of legal frameworks, institutional structures and judi-
cial mechanisms. While each of these topics is touched upon to a certain
extent, a competent discussion on these matters requires the expertise
of a lawyer, or an international lawyer, which this author does not pos-
sess. Furthermore, the issue of the integration of customary laws and
judicial mechanisms within a modern and statutory-based legal system
will also not be discussed in depth, and neither will the question of how
peacebuilders can contend with legal pluralism in a post-conflict con-
text, for the reasons outlined below. Finally, the book will not address
in any significant detail the grand questions of rule-of-law reform, such
as whether it is true that there can be no peace without justice, whether
12 UNITED NATIONS JUSTICE

amnesties granted through truth and reconciliation processes must in-

deed be shunned in favour of trials and prosecutions for past atrocities,
and how broadly to attain justice in a post-conflict society.54
The book will touch upon a number of these topics, but there will be
no substantive discussion of these issues; this is not because they are not
interesting and relevant for justice sector reform, but simply because they
are beyond the feasible scope of this study – each topic would warrant a
lengthy study by itself. In essence, the main focus of the study will remain
on an evaluation of the UN’s legal and judicial reform efforts in its gover-
nance operations, particularly in Kosovo and East Timor, and on demon-
strating that the UN’s approach to such reforms was not well suited to its
goal of establishing a sustainable legal system.
The book is divided into five chapters. Chapter 1 examines the UN’s early
legal and judicial reform efforts, focusing particularly on the first decade
of post–Cold War operations; further, it investigates the assumptions
which the UN formed about such reforms, and which eventually under-
pinned the UN’s approach to these reforms in its governance operations.
Chapter 2 briefly discusses the case-study selection – Kosovo and East
Timor – and provides the rationale for that selection; it introduces the
various criteria which are used in the case-study chapters for the assess-
ment of the UN’s approach, and briefly discusses the questions which
are asked of each case study in the controlled comparison. Chapter 3
presents the Kosovo case study. After a brief introduction to the back-
ground of the conflict over Kosovo, and the UN Interim Administration
Mission in Kosovo (UNMIK), the chapter goes on first to demonstrate
how the five key elements of the UN’s approach were implemented in
practice, and then to discuss various legal and judicial developments in
the territory which followed, in no small part as a result of that approach.
The chapter moves on to analyse and discuss the developments as pre-
sented, and to evaluate the approach critically on the basis of the criteria
introduced in Chapter 2. The concluding section summarizes the various
ways in which the UN’s approach was responsible for the problems and
challenges which the mission had to face, and for the numerous violations
of legal principles and judicial norms which resulted; it also suggests that
it was the approach’s failure to address adequately and balance the key
tensions of a governance operation which led to these failures. Chapter
4 presents the East Timor case study, and follows a similar structure to
Chapter 3. Chapter 5 highlights the issues raised by the UN’s legal and
judicial reform experience in Kosovo and East Timor, explores how these
issues have been represented in the literature on the topic, contends with
some of the main assumptions underlying the UN’s approach and analy-
ses and evaluates some of the proposed changes to key elements of that
approach.
 INTRODUCTION 13

Notes
1. The two notable exceptions to this model were the UN’s operations in the Belgian
Congo (ONUC) and in Western New Guinea (UNTEA) in the early 1960s. For an over-
view of the UN’s early peacekeeping operations see Ratner (1995).
2. Paris (2004: 15).
3. Ibid.
4. On this see Mayall (1996); Kaldor (1999).
5. Paris (2004: 16).
6. Any earlier moves towards dissolution of the Yugoslav federation would have been
countered by the Soviet Union, and might also have met with military intervention by
Soviet forces.
7. Paris (2004: 16).
8. UN General Assembly and Security Council (1992).
9. Ibid., para. 55.
10. Ibid.
11. Ibid., para. 21.
12. Ibid., para. 55.
13. For an overview of UNTAES and its challenges see Schoups (2001); Boothby (2004).
14. Caplan (2005: 2).
15. Richard Caplan (ibid.) draws this distinction between international administration and
any “ ‘expanded’, ‘complex’, or ‘multidimensional’ peacekeeping” operations. Hansjoerg
Strohmeyer (2001b: 46) argues regarding UNMIK and UNTAET that the “scope of
the challenges and responsibilities deriving from these mandates was unprecedented in
United Nations peacekeeping operations”.
16. Mani (2002: 54).
17. See “Agreement on a Comprehensive Political Settlement of the Cambodia Conflict”,
Annex I: UNTAC Mandate, Section B: Civil Administration, para. 5.b – see Treaties list.
For a discussion of UNTAC’s civil mandate see Doyle (1995).
18. Mani (2002: 54).
19. Evans (1993: 56, 110). Gareth Evans was Australia’s foreign minister from 1988 to 1996.
He served as president and CEO of the International Crisis Group from 2000 until 2009
and is currently Honorary Professorial Fellow at the University of Melbourne. In his
initial conception (ibid.: 56), the justice package contained four key elements: “the pro-
vision, as appropriate, of a body of criminal laws and procedures, drawing on universal
principles; civil police, with training as well as law enforcement responsibilities; a panel
of judges, prosecutors and defenders able to work with available local professionals dur-
ing the transition period, again with an obligation to train their local successors; and
adequate correctional facilities, and personnel to staff them while developing local re-
placements”. On justice packages see also Plunkett (1998).
20. See UN Security Council (2004).
21. For a good overview of peacebuilding and police reform see Holm and Eide (2000).
22. UN General Assembly and Security Council (2000b) (Brahimi Report), para. 40.
23. The term “triad” is borrowed from Rama Mani (2002: 56), who refers to the judiciary,
the prisons and the police as “the tripod or triad of the justice system”.
24. Mani (ibid.). For a further discussion of police reform in Haiti see Neild (1995).
25. Caplan (2005: 60).
26. Mani (2002: 64–65). For an overview of judicial reform in Haiti see O’Neill (1995); see
also MICIVIH (1994a). For a general overview of peacebuilding in Haiti see Kumar
(1998).
27. Strohmeyer (2001b: 49).
14 UNITED NATIONS JUSTICE

28. Caplan (2005: 61).

29. Ibid.
30. Plunkett (1998: 69).
31. Plunkett (2003: 69).
32. See “Agreement on Provisional Arrangements in Afghanistan Pending the Re-
establishment of Permanent Government Institutions”, section II, 1(i) – see Treaties list.
33. Comments of UN Secretary-General Kofi Annan to the Security Council – see UN
Security Council (2003).
34. Strohmeyer (2001b: 58).
35. See, for instance, Cohen (2002); see also the Brahimi Report (UN General Assembly
and Security Council, 2000b), which attributes the difficulties with legal and judicial re-
form partly to the UN’s attitude towards the allocation of resources.
36. Chesterman (2004); Caplan (2005); Zaum (2007); Fox (2008); Knoll (2008); Stahn (2008);
Wilde (2008).
37. See, for instance, Chesterman (2001a, 2001b, 2002a, 2003, 2004); Kondoch (2001); Mathe-
son (2001); Ruffert (2001); Stahn (2001); Wilde (2001a, 2003, 2004); Caplan (2002, 2004a,
2004b); Yannis (2004).
38. See, for instance, Linton (2001a, 2001b, 2001c, 2002); Stahn (2001); Cohen (2002); Dick-
inson (2003a, 2003b); Katzenstein (2003); Cockayne (2005a, 2005b); Nouwen (2006);
Perriello and Wierda (2006).
39. Romano, Nollkamper and Kleffner (2004).
40. Rausch (2006).
41. Bull (2008).
42. Fairlie (2003); Oswald (2004); O’Connor (2005); O’Connor and Rausch (2005, 2007).
43. Wilde (2001b).
44. Baskin (2002); Carlson (2006); UN Department of Peacekeeping Operations (2006).
Please note that Scott Carlson was the consultant with primary responsibility for devel-
oping the latter document for the UN’s Department of Peacekeeping Operations.
45. Strohmeyer (2000, 2001a, 2001b, 2001c).
46. See, for instance, UN General Assembly and Security Council (2002), para. 98. For a
further discussion of the light-footprint approach see Chesterman (2004: 88–92).
47. Bosnia was a case of international territorial administration since it was governed by
the Peace Implementation Council, made up of “an ad hoc coalition of states and or-
ganizations operating with the backing of the UN Security Council” (Caplan, 2005: 34),
but was not a case of UN governance, a point important for the discussion of the case-
study selection in Chapter 2.
48. For instance, the World Bank, the UN Development Programme, the Office of the High
Commissioner for Human Rights, the Inter-American Development Bank, the Ameri-
can Bar Association, the Organisation for Security and Co-operation in Europe and the
US Agency for International Development.
49. See OHCHR (2006a, 2006b, 2006c, 2006d, 2006e).
50. Interview with UN official, April 2005.
51. See UNDP (2006).
52. Carlson (2006a), p. 14.
53. In his lessons-learned study, Scott Carlson calls for such a ‘One UN Approach’; member
states had also called for more coherent efforts since 2005.
54. On the latter question see Mani (2002).
 15

1
Legal and judicial reform and the
United Nations: Early practice
and assumptions

This chapter has two main aims: firstly, it will introduce legal and judicial
reform as an aspect of the UN’s early peacebuilding efforts, and highlight
that many of the initial reform decisions were taken largely ad hoc; and
secondly, it aims to uncover the roots of the UN’s assumptions about such
reforms, especially as they were formed in the latter half of the 1990s.
The chapter is thus divided into two sections. The first outlines the UN’s
legal and judicial reform efforts in Namibia, El Salvador, Cambodia, So-
malia, Haiti, Rwanda and Bosnia. This discussion will demonstrate that
the United Nations did indeed not have a particular approach when
taking on such reforms. The second section goes on to show, however,
how some aspects of this early experience, as well as some other factors,
led to a crystallization of the organization’s assumptions about the direc-
tion it should take when undertaking such reforms.

The UN’s early legal and judicial reform efforts

As with many of its early post-conflict peacebuilding endeavours,1 the

UN’s legal and judicial reform efforts were undertaken primarily ad hoc.
The particular reform initiatives were not conceived as part of a legal
and judicial reform strategy. Instead, the measures were taken on a case-
by-case basis, they were not wide-reaching and, due to the UN’s limited
mandates and frequent local political opposition, they largely failed to

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
16 UNITED NATIONS JUSTICE

address adequately the wider legal and judicial needs of the particular
society hosting the UN operation.
In Namibia the United Nations carried out what was the first, and one
of the few moderately successful, legal reform endeavours of the early
post–Cold War period. The UN Transitional Assistance Group (UNTAG)
was heavily involved in the supervision of the abolition of various dis-
criminatory laws: all in all, 56 distinct pieces of legislation, “some of the
most egregious legal instruments of colonial repression and apartheid”,2
were either abolished or altered. Notwithstanding this significant altera-
tion in the country’s applicable law, however, the UN’s limited mandate
made it unable, despite persistent efforts, to overrule the administrator-
general of the territory on the country’s system of ethnic administration,
which was entrenched through the country’s AG-8 law; the law remained
in place throughout Namibia’s transitional period, on the grounds that
repealing it early would not only demand a complete restructuring of
local administration but would demand it at a time when Namibia was
on the eve of elections, and had neither the time nor the resources to de-
vote to such an endeavour.3 The UN’s other main legal reform efforts in
Namibia were in the realm of drafting the electoral laws needed for the
country’s first elections; this drafting was a success, and became a model
for the UN’s similar task in its mission to Cambodia.
In El Salvador, one of the primary non-security objectives of the UN
Observer Mission in El Salvador (ONUSAL) was the task of aiding the
reform of the judicial system. However, the UN’s role was relatively lim-
ited: ONUSAL was not given direct responsibility for judicial admin-
istration, and its mandate only called on it “to offer its support to the
judicial authorities of El Salvador in order to help improve the judicial
procedures for the protection of human rights and increase respect for
the rules of due process of law”.4 Essentially, the mission was limited to
“commenting on legislation; using good offices to solve problems at the
local level; and advising authorities on judicial procedure and investiga-
tive techniques”.5 But it encountered “significant difficulties”6 with its
judicial reform efforts, in part as a result of local opposition to such re-
forms by politicians and senior members of the judiciary, and partly be-
cause it lacked an adequate mandate for institutional reform; thus the
UN’s own impact on judicial reforms was only “minimal”.7
In order to fill the gaps on judicial reform left in the Mexico Agree-
ment of 1991,8 and make up for the deficiencies caused by its weak
judicial reform mandate, the United Nations tried to influence the judi-
cial reform process in El Salvador in several other ways. The first was
through the Truth Commission, which it helped to establish and which
was responsible for investigating and documenting human rights abuses
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 17

committed by all parties involved in the conflict, and for making rec-
ommendations to the government.9 The commission made various far-
reaching recommendations, including the voluntary resignation of all
Supreme Court justices and major Supreme Court reforms.10 However,
the Salvadoran government’s response was “dismissive”11 and few of the
commission’s recommendations were implemented: the Supreme Court
justices declared their intention to stay in office,12 and President Cristiani
said that the report “[did] not respond to the wishes of the Salvadorans
who [sought] to forgive and forget everything having to do with that
very sorrowful past”, arguing also that the commission had exceeded its
powers in writing these recommendations.13
ONUSAL and the Salvadoran government also established another
body, namely the Joint Group for the Investigation of Politically Moti-
vated Illegal Armed Groups – that is, the so-called “death squads”.14 The
joint group, which was composed of two candidates selected by President
Cristiani, the human rights ombudsman of El Salvador and the direc-
tor of ONUSAL’s Human Rights Division, noted that such squads were
still in existence after the 1991 peace process, and that the justice system
“continued to provide a margin of impunity these structures require”.15
Essentially, though, no prosecutions or dismissals for involvement in
these death squads resulted from the group’s efforts.
There were several other efforts at judicial reform: ONUSAL organ-
ized judicial training seminars, and its Human Rights Division, along with
the Truth Commission, made various recommendations on the judicial
system’s independence and effectiveness, as well as on judicial imparti-
ality and competence; however, such efforts had “little impact”.16 Thus
ONUSAL’s attempts to reform the judiciary, through its mandated ac-
tivities, its efforts as part of the Joint Group and its involvement with
the Truth Commission, were on the whole unsuccessful. The UN’s failed
judicial reform efforts, and the “culture of impunity”17 which neither the
United Nations nor the Truth Commission was able to address, influenced
some of the UN’s later assumptions about how to conduct legal and judi-
cial reform.18
The UN’s legal and judicial reform efforts in Cambodia were equally
unsuccessful. While the civil administration mandate of the UN Transi-
tional Authority in Cambodia (UNTAC) included neither supervision
nor control of the justice system, which remained firmly in the control of
the Cambodian executive,19 the mandate did include the task of assist-
ing Cambodia’s Supreme National Authority with judicial reform prior
to the elections.20 Furthermore, the Paris Agreement provided UNTAC
with an unprecedented “intrusive and authoritative” mandate not only to
implement universal human rights but also to oversee human rights, to
18 UNITED NATIONS JUSTICE

investigate and engage in “corrective action” in regard to human rights

violations and to prevent a return to “the policies and practices of the
past” – that is, to genocide.21
This highly ambitious mandate was not matched with the resources
which would have made its fulfilment possible: only 10 officers were as-
signed to the UNTAC human rights component in the initial planning of
the mission, and eventually only one human rights officer was assigned
to each of the 21 Cambodian provinces, with 10 additional officers sitting
in Phnom Penh.22 UNTAC completely failed to fulfil its role of fostering
an environment in which human rights would be respected, and also in
its “corrective” role.23 To begin with, human rights violations continued
largely unchecked; moreover, UNTAC decided to draft provisions relat-
ing to the judiciary, as well as to criminal law and criminal procedure,
since the Vietnamese-drawn criminal code and criminal procedure code
were deemed to be “woefully unworkable to achieve the UN’s fundamen-
tal objectives”.24 But UNTAC’s legal code was composed hastily, was not
written by lawyers and ended up being in itself “seriously deficient”:25
for instance, assault was not punishable as an offence unless it led to an
injury that either lasted six months or was permanent; furthermore, an
absence of consent was not incorporated as an element of the crime of
rape.26
Cambodia’s Supreme National Council, which was designated in the
Paris Peace Agreements as the body that would have domestic authority
and sovereignty, did adopt the UN criminal law and criminal procedure
code in 1992. However, the ruling Cambodian People’s Party was upset
with the adoption of this code, and decided quickly to approve its own
criminal procedure code in 1993, which came to be known as the State
of Cambodia Law on Criminal Procedure, or SOC Law.27 Both codes ap-
plied throughout the 1990s, causing much confusion as to the applicable
law, but the absence of a judicial framework, and the UN’s failure to in-
stitute such a framework, meant that UNTAC was unable to carry out
corrective actions.
UNTAC did take a “revolutionary step” in appointing its own special
prosecutor28 in response to mounting human rights violations and politi-
cal violence, and the unwillingness of the local authorities to prosecute
suspects.29 But for reasons of neutrality and human rights, UNTAC was
unable to rely on the State of Cambodia’s (SOC) prison, court and police
system. At the same time, however, UNTAC did not have its own pris-
ons initially, and it lacked a court system. And even after UNTAC cre-
ated the first UN detention centre, and the special prosecutor was able to
issue warrants for arrest against those who committed atrocities and
human rights violations, he had no way of prosecuting such individuals: the
mission’s civilian police component (CIVPOL) was unarmed, UNTAC’s
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 19

military force interpreted its mandate as lacking enforcement powers

for this purpose and, more importantly, UNTAC lacked a functioning
judiciary.30
Furthermore, after a few initial court appearances, Cambodian courts
refused to hear the special prosecutor; thus the effort of establishing this
UN special prosecutor position faltered.31 So the United Nations found
itself in a situation where it was expected to protect human rights and
re-establish law and order, but it had no functioning court system which
could help it to do so; the absence of a judicial framework was the “single
largest cause of the failures UNTAC experienced in public security”, and
also resulted in the UN’s holding of detainees in violation of their ha-
beas corpus rights.32 While the United Nations was able to create the first
UN detention centre and the position of the first UN special prosecutor,
it failed in establishing what was needed equally as much, namely a
judiciary.
Gareth Evans, Australia’s former foreign minister, who was involved in
initiating the UN peace plan for Cambodia, summarized the UN’s judi-
cial failures in Cambodia quite aptly:

The point is simply that if a peace keeping force is given a mandate to guard
against human rights violations, but there is no functioning system to bring vio-
lators to justice – even those who violate others’ right to life – then not only is
the UN force’s mandate to that extent unachievable, but its whole operation is
likely to lose credibility.33

Thus UNTAC’s experience in Cambodia identified the criminal justice

system as one area where the United Nations needed to provide signifi-
cantly more resources than it had, and that meant “a body of applicable
law; an effective police force; an independent judiciary; prosecutors and
defenders; correctional facilities; and gaolers”.34
Even though on the whole the UN’s legal and judicial reform efforts
failed, UNTAC’s human rights component did succeed in pushing the
Supreme National Council to adopt the key human rights covenants, and
the mission made a positive legal reform contribution with its efforts to
draft an electoral law.35 The UN’s prior experience with drafting such a
law in Namibia in 1989 and 1990 served as a model for UNTAC, which
went on to devise procedures and regulations for electoral administra-
tion, outline requirements for voter and political party registration,
establish guidelines for polling and the recoding of electoral results and
stipulate a code of conduct for participants in the electoral process, all as
part of this electoral law effort.36
While it was operating in Cambodia, the United Nations also became
involved with legal and judicial reforms in Somalia. Security Council
20 UNITED NATIONS JUSTICE

Resolution 814 (1993) had empowered the special representative of the

Secretary-General (SRSG) to assist in “the re-establishment of national
and regional institutions and civil administration in the entire country
. . . [and the] restoration and maintenance of . . . law and order”.37 When
the Unified Task Force (UNITAF) handed over its responsibilities for
Somalia to UNOSOM on 4 May 1993, the then SRSG, Admiral Howe,
took this task seriously, and given that there was no Somali transitional
government that he could assist, he decided to declare that UNOSOM
II would enforce the Somali penal code of 1962.38 UNOSOM II’s Justice
Division proceeded to draw up a detailed plan and budget for police
and judicial reforms; the court structure that was to be established was
modelled on Somalia’s 1962 three-tiered judicial system, meaning that
there were to be 21 district courts, seven regional courts and two courts
of appeal – one in Mogadishu and one in Hargeisa.39
While the then Under-Secretary-General for Peacekeeping Operations,
Kofi Annan, approved this plan, he felt that local, regional and district
councils would first need to be set up, so that they could have supervi-
sory authority over the police and the judiciary, before funding for jus-
tice sector reforms should be requested from donor countries; Annan
failed to inform SRSG Howe of this decision, and Howe worked on the
assumption that Annan and the Department of Peacekeeping Opera-
tions (DPKO) were in the process of implementing the funding and staff-
ing requirements for the overall justice plan.40 According to Ganzglass,
“Annan’s decision, which was not required by Resolution 814, was stra-
tegically flawed and fatal to the Justice Program.”41 Apart from the fact
that Resolution 814 did not specifically say that regional councils must
be formed prior to any police and judicial reforms, Ganzglass argues that
it was up to the admiral to decide how and when to proceed on such re-
forms, and furthermore that the Security Council’s intent was clearly to
give priority to justice sector reforms.42
In June 1993 the conflict with Aided broke out, effectively preventing
the efforts to establish councils in Mogadishu; however, Ganzglass be-
lieves that the door to justice sector reforms in other parts of the country
still stood wide open, and accuses Annan and the DPKO of failing to
make requests for any donations for such efforts.43 Justice sector reforms
were to be, in the words of Admiral Howe, UNOSOM’s “ticket out of
Somalia”,44 but as Ganzglass puts it, the “‘ticket out’ was never even pur-
chased”.45 While the DPKO did eventually attempt to gather funds for
this effort, it was the initial failure to seek funds for police and judicial
reform which killed the UNOSOM justice programme.46
While the United Nations was trying to deal with Somalia, it also set
up a joint mission with the Organization of American States (OAS) in
Haiti in April 1993 – the UN/OAS International Civilian Mission in Haiti
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 21

(MICIVIH). In late 1993 MICIVIH became involved with legal and ju-
dicial reforms: it began with identification of the particular deficiencies
in the judicial system,47 and eventually expanded its work to a judicial
assistance programme which provided technical assistance, advisory ser-
vices and training, and assisted with the work to end impunity and also
with mission activities regarding the police and prison authorities which
had a judicial dimension.48 Given that MICIVIH had limited resources
for its judicial reform efforts, the mission did a “respectable job”; but the
judiciary nevertheless remained relatively weak and inefficient, and im-
punity prevailed.49
The UN’s judicial reform efforts in Rwanda were relatively mini-
mal, and came primarily in the form of recommendations on areas for
improvement. After the chaos that ensued with the flight of the Forces
Armées Rwandaises and the Rwandan government, the judicial system
was virtually destroyed.50 The newly established government, set up by
the Rwandese Patriotic Front, had no means in terms of human or physi-
cal resources to restore the rule of law to the country.51 The UN Human
Rights Field Operation in Rwanda (HRFOR) conducted an assessment
of the tasks that needed to be completed,52 but the UN’s judicial reform
efforts in Rwanda did not go much beyond the drafting of reports. Al-
though international donors did respond to this crisis, provided materials
for the rebuilding of courthouses and offered legal texts and basic sup-
plies, as well as some legal training and advice to the Ministry of Justice,
the judiciary’s ethos was not restored.53
Despite some progress, such as the successful launch of the National
Awareness Campaign on the Judicial System in October 1996, HRFOR
noted its concern about the shortcomings in the administration of justice:
“not only was there a serious shortage of judges, clerks and material re-
sources for the courts, and a shortage of defence lawyers, but there had
also been serious allegations that the military of Rwanda had acted in
contravention of judicial orders”.54 By early 1997 it also emerged that
some defendants had no access to legal counsel, and that most judicial
officials had only had four months’ training. But while its reports were
helpful, the United Nations did not get seriously involved with judicial
reforms in Rwanda, and failed to recognize publicly and address vari-
ous other judicial problems, such as the trend of ethnic recruitment (i.e.
largely Tutsi to the exclusion of Hutu) into the judiciary – a trend that
significantly undermined judicial impartiality in Rwanda.55
The UN Mission in Bosnia and Herzegovina (UNMIBH) was the last
instance prior to the UN’s involvement in Kosovo where the organization
had to undertake judicial reforms without being fully in charge of such
reforms. Security Council Resolution 1184 (1998) mandated UNMIBH to
create a programme to monitor and assess the Bosnian court system as
22 UNITED NATIONS JUSTICE

part of an overall package of legal reforms coordinated by the Office of

the High Representative.56 The programme that was set up – the Judicial
System Assessment Program (JSAP) – consisted of a number of teams
of local and international lawyers, and carried out numerous assessments
of the legal institutions in Bosnia.57 Having successfully charted the key
weaknesses in the legal system, the JSAP published a series of reports on
the matter, making a number of recommendations.
Towards the end of 2000, however, the JSAP’s responsibilities were
transferred to an independent judicial commission within the Office of
the High Representative, and thus the UN’s judicial reform role was
nearly terminated. In order to retain some judicial reform function,
UNMIBH established a criminal justice advisory unit, which was to fos-
ter cooperation between the police and the criminal justice system. The
unit monitored key court cases, acted as a liaison between the police and
the judiciary, advised the International Police Task Force on procedural
matters related to the legal process and helped train the local police in
implementation of various criminal procedures. On the whole, UNMIBH
had a relatively limited role in Bosnia, and the impact which the United
Nations could have on the judicial reform process was therefore also
limited.
The discussion above has demonstrated that while the United Na-
tions did clearly undertake various legal and judicial reform endeavours,
these early efforts were not part of a particular legal and judicial reform
strategy, but were begun ad hoc and had at best a modest impact in the
missions where they were carried out. As the following section will dem-
onstrate, this negative experience, along with a few other factors, was
responsible for the UN’s development of certain key assumptions about
how to undertake legal and judicial reform.

The assumptions about legal and judicial reform

Since the United Nations did not publish official reports on legal and judi-
cial reform during the 1990s, and there is no public access to UN internal
communications and documents,58 the rationales behind the assumptions
the United Nations made and the changes it implemented in regard to
legal and judicial reform at the end of the 1990s are not documented.
However, the UN’s justice sector reform practice in its governance opera-
tions provides an indication of how the organization interpreted its early
experience, and the lessons that it learned from it. This section attempts
to explain the potential motivations and rationales behind five key as-
sumptions the United Nations made, which led to the eventual adoption
of a particular approach to legal and judicial reform.
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 23

Application of previously applicable laws

The failures of UNTAC’s hastily drafted and enacted laws, which were
unable to fulfil the UN’s own basic standards,59 did not push the United
Nations in the direction of applying a pre-prepared off-the-shelf or generic
criminal code and criminal procedure code in post-conflict societies, as
Evans and Plunkett had recommended.60 Instead, it adopted the prin-
ciple that any applicable law chosen for a territory must be based on
legal codes that have previously applied in that territory, and which are
thus rooted in local legal and cultural customs, and potentially familiar
to some in the local population. But why did the United Nations come
to favour, and still favours,61 selecting an applicable law that is based on
prior legal codes?
A potential clue as to its reasoning is provided in a statement by an
expert panel that was convened after the “Report of the Panel on United
Nations Peace Operations” (the Brahimi Report) called on the Secretary-
General on 21 August 2000 to:

Evaluate the feasibility and utility of developing an interim criminal code,

including any regional adaptations potentially required, for use by such opera-
tions pending the re-establishment of local rule of law and local law enforce-
ment capacity.62

This panel of experts concluded in less than two months that it:

Doubted whether it would be practical, or even desirable given the diversity

of countries’ specific legal traditions, for the Secretariat to try to elaborate a
model criminal code, whether worldwide, regional or civil or common law
based, for use by future transitional administration missions.63

This statement, which was made on 20 October 2000, less than two
months after the Brahimi Report called on the Secretary-General to look
into this matter, appears to have been a foregone conclusion, rather than
a conclusion based on any serious research initiated after the report was
published. Some of the members of this panel, which was to include “in-
ternational legal experts, including individuals with experience in United
Nations operations that have transitional administration mandates”,64
were some of the same individuals who advised the United Nations on
the choices of the applicable law for prior UN operations; once it sets up
a roster of experts in a particular field, the United Nations tends to seek
their advice for many different missions and reports. The experts’ state-
ment shows that there was clearly a perception in 2000, and probably
also much earlier, that the development of an interim legal code would
24 UNITED NATIONS JUSTICE

be neither practicable nor desirable, for the stated reasons, but arguably
also because the UN’s failure to draft adequate laws in Cambodia meant
that it should shun further law-drafting activities.
But apart from the fact that the “diversity of countries’ specific legal
traditions” and the failures in Cambodia suggested to some that a UN
criminal law would be impracticable, the United Nations arguably also
based its assumption about the need to use previously applicable laws
on several other factors – historical precedents of legal and judicial re-
form in post-conflict societies, the law of belligerent occupation, practical
considerations and the ideology of legitimacy. The assumption that legal
and judicial reforms must be based on local legal traditions and customs
has several precedents during the twentieth century. Notably, the Allies
made such an assumption in Germany after the Second World War: they
reinstated the penal code of 1871, the Court Organisation Act of 1877
and the Code of Criminal Procedure of 1877, as well as all later amend-
ments, and chose to eliminate only the discriminatory laws of the Nazi re-
gime and any sections of laws that reflected Nazi ideas.65 Moreover, even
though he himself clearly placed a significant stamp on the new Japanese
constitution, General Douglas MacArthur nevertheless began legal re-
forms in Japan after the Second World War on the basis of the 1889 Meiji
constitution.66 Such precedents would leave few UN practitioners in two
minds about the notion that even where significant justice sector reforms
need to be undertaken, the basic legal framework must be rooted in a
society’s prior legal traditions and codes.
The assumption was also consistent with the requirements of the law
on belligerent occupation regarding the choice of law for an occupied
territory: the idea of continuity of the legal system is a fundamental prin-
ciple of the law of occupation, as had been expressed in Article 43 of
the Hague Regulations67 and Article 64 of Geneva Convention IV (GC
IV).68 While the United Nations did not equate to an occupying power de
jure in administering a territory internationally, selecting the path most
consistent with international legal requirements on the administration of
a post-conflict territory seemed sensible, particularly given the UN’s pre-
vious and failed attempts to draft UN laws in Cambodia.
Also, there were some practical reasons behind the assumption: Hans-
joerg Strohmeyer,69 for instance, argues that the decision to apply the
laws in Kosovo and East Timor that had applied immediately prior to the
adoption of Security Council Resolutions 1244 (1999) and 1272 (1999),70
respectively, was made “solely for practical reasons”71 of avoiding a legal
vacuum in the initial phase of the mission, and also to avoid the need for
local lawyers, most of whom had obtained their qualifications at domes-
tic universities, to be introduced to a new legal system. The discussion
so far shows that practical reasons were not the only ones, even if they
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 25

certainly affected the assumption. Finally, applying a previously applica-

ble legal code was also consistent with the UN’s ideology of legitimacy
– that is, the notion that its actions must be perceived as legitimate if they
are to be effective. Any legal reforms would seem less forced and more
legitimate if they are rooted in prior legal traditions, since they would be
perceived locally as less of an imposition from the outside; this would
significantly increase the chances that they may be accepted, thereby
making the UN’s task of selling such a legal code much easier.

Implementation of human rights standards within the legal

framework

The United Nations also made the assumption that it should incorporate
international human rights standards and principles as part of the legal
framework. This assumption followed naturally from the organization’s
broad obligations under the UN Charter regarding human rights. Article
1(3) states that one of the fundamental purposes of the United Nations
is “To achieve international cooperation in . . . promoting and encourag-
ing respect for human rights and for fundamental freedoms . . .”;72 simi-
larly, Article 55 sets out the UN’s obligation to promote “human rights”
to help foster “stability and well-being”.73 Various other articles also hint
at this key role for the United Nations in the area of promoting human
rights, and since the early days of the organization it has worked to en-
courage states to adopt and adhere to the various conventions, covenants,
treaties, charters, articles and other documents that make up the interna-
tional human rights regime.
Thus it is not surprising that, in undertaking legal and judicial reforms,
the United Nations would set out to promote human rights by arguing,
for instance, for the adoption of international human rights instruments
as part of a legal framework, and for the observance of human rights
standards as part of the judicial process. However, the assumption that
international human rights instruments must be incorporated into the
local legal frameworks, and that the judiciary must uphold international
human rights standards, only reflected the broad strategic objectives of
the organization in promoting human rights, rather than a carefully de-
vised strategy for legal and judicial reform.

Establishment of a regular court structure

In respect of the court structure, the United Nations assumed that the
best course of action is either to allow the functioning of the regular
courts to continue if they are still in existence or, if they have ceased to
function, to re-establish the regular court structure of the territory. As
26 UNITED NATIONS JUSTICE

with the choice of law, the law of belligerent occupation influenced the
UN’s choice of court system: GC IV requires that “the tribunals of the
occupied territory shall continue to function in respect of all offences
covered by the said laws”,74 and the UN’s assumption was consistent with
this requirement. Furthermore, the historical precedent for establish-
ing post-conflict court structures was exactly that: once the Western Al-
lies occupied Germany, they permitted German courts to function in the
same configuration as they had done before and during the war. So there
was a precedent that in governing territories, one does permit the courts
to continue functioning as they have before, and this precedent did not
escape the United Nations. The basic assumption about post-conflict judi-
cial reconstruction was thus that in carrying out this function, the United
Nations must indeed re-establish the regular court system rather than es-
tablish a new type of system.

Prosecution of past atrocities

The UN’s stance in the latter half of the 1990s, that there is a need to
end impunity for past atrocities, influenced its overall approach to judi-
cial reform. The Nuremberg and Tokyo war crimes trials that followed
the Second World War set a good precedent for addressing war crimes
and genocide, but similar atrocities committed in the subsequent 50
years went largely unpunished. Various international legal instruments75
were created in order to address such crimes, but until relatively recently
“Nations . . . honoured these obligations largely in the breach.”76
As some states overthrew their dictators and authoritarian regimes
in Southern Europe in the 1970s, Latin America in the 1980s and East-
ern and Central Europe in the late 1980s and early 1990s, they entered a
process of transition, and with this process came deliberations about the
ways in which past atrocities could be addressed.77 In particular, politi-
cians and academics deliberated how best to balance the “legal and mor-
al imperative of rendering justice for past atrocities”78 with the various
political constraints that a transition brings.79 During the 1980s the order
of the day was to grant amnesties for past human rights abuses,80 and to
establish truth commissions in order to address such abuses, deal with
questions of the disappeared, help along the process of national reconcili-
ation and healing, and set the historical record straight.81 By and large,
crimes went unpunished.
In the 1990s, however, this pattern began to change. Impunity did re-
main a major problem: even though various peace agreements made in
the early 1990s, such as those for El Salvador and Guatemala, included
provisions requiring individual accountability, amnesties were never-
theless granted; and quite commonly peace agreements did still include
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 27

amnesty provisions, and amnesty laws were passed for the past crimes
of various governments in Latin America and Africa.82 However, the no-
tion that prosecutions and punishment of atrocities are vital for a lasting
peace in a post-conflict society, in that they hold the potential to end cy-
cles of violence and strengthen democracy, began to dominate not only
the debate over whether to have an amnesty-oriented or prosecutions-
oriented transitional justice policy,83 but also the debate on rule-of-law
reform more broadly. Overall, the issue of accountability occupied the in-
ternational community’s time and resources more than any other matter
related to justice sector reform.
While there was general agreement that amnesties should not be
granted for either ongoing or future atrocities, the issue of how to ad-
dress past atrocities was divisive. Various human rights groups,84 victims’
associations, some UN agencies and various observers came to believe
that the punishment of criminal offences is the best insurance against any
future repression.85 Academics also became increasingly persuaded by
the notion that atrocities must be prosecuted.86 On the other hand, offi-
cials in states undergoing political transitions felt that holding the perpet-
rators of past atrocities liable for their crimes undermines and endangers
the transition to democracy, and should therefore be either partially or
completely limited.87
By the mid-1990s the attitudes towards the prosecution of past atroci-
ties and the holding of war crimes trials had changed sufficiently in the
international community to allow the establishment of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) and the Interna-
tional Criminal Tribunal for Rwanda (ICTR) for the atrocities com-
mitted during the break-up of Yugoslavia and the genocide committed
in Rwanda, respectively. These ad hoc tribunals were the first serious at-
tempt since the Nuremberg and Tokyo trials to bring war criminals to
justice. The international community was apparently persuaded by the
notion that some crimes must not go unpunished if there is to be a lasting
peace. The United Nations itself became vocal about the need to end im-
punity, demanding accountability for past atrocities: on visiting the ICTY
in 1997, UN Secretary-General Kofi Annan declared that “Impunity
cannot be tolerated, and will not be. In an interdependent world, the
rule of law must prevail.”88 Furthermore, he also hailed 17 July 1998,
when the Rome Statute for the International Criminal Court (ICC) was
adopted, as “the day the world finally united to bring an end to the cul-
ture of impunity” and said it sent “a message to those who would commit
these heinous crimes that you have nowhere to hide; you will be made
accountable”.89
But if the respective positions of the UN Human Rights Commit-
tee, the UN General Assembly’s resolution on Guatemala and the UN
28 UNITED NATIONS JUSTICE

Secretariat’s policy on the 1996 Abidjan Agreement for Sierra Leone

are any indication, the organization’s stance on impunity and granting
amnesties was not at all coherent in the early to mid-1990s. In the first in-
stance, the Human Rights Committee had already condemned amnesties
in 1992 by highlighting their negative impact on states’ respect for the
prohibition against torture;90 by 1996 it expressed its disapproval of blan-
ket amnesties more generally.91 However, in 1996 the General Assembly
failed to condemn amnesties for Guatemala, adopting instead a weak
resolution which recognized “the commitment of the Government and
civil society of Guatemala to advance in the fight against impunity and
towards the consolidation of the rule of law”.92 Furthermore, the United
Nations, which acted as the moral guarantor at the signing of the peace
in Abidjan in 1996, made no comments about the amnesty granted to the
Revolutionary United Front (RUF) under the agreement, which included
the clause that “the Government of Sierra Leone shall ensure that no
official or judicial action is taken against any member of the RUF . . . ”93
By the time of the Lome Agreement for Sierra Leone in 1999, how-
ever, the United Nations had changed its position: a similar clause in the
agreement led a UN representative to comment on the document that
“The United Nations holds the understanding that the amnesty provi-
sions of the Agreement shall not apply to the international crimes of gen-
ocide, crimes against humanity, war crimes and other serious violations
of international humanitarian law.”94 This statement clearly demonstrates
the shift in the UN’s position on impunity by the end of the 1990s; argu-
ably, the position crystallized with the arrival of Kofi Annan and his ad-
ministration in 1997.
By the end of the 1990s the acknowledgement of and pursuit of the
truth about past atrocities were considered by many professionals and aca-
demics as key for a lasting peace. But the UN’s preference was for some
form of trials to take place wherever possible, and for truth commissions
to be complementary to a trial mechanism, rather than for them to act as
the only mechanism for addressing past atrocities along with the grant-
ing of amnesties. As the case-study chapters will amply demonstrate, the
UN’s assumption that an end to impunity and the prosecution of the per-
petrators of atrocities are vital for a sustainable peace significantly influ-
enced the organization’s approach to judicial reform in its governance
operations.

Local participation in the judicial reform process

The final assumption about legal and judicial reform made by the United
Nations is that the local population of the host territory should actively
participate in the judicial reform process. This was logical, given that a
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 29

reformed legal system can be sustainable after the departure of the in-
ternational community only if it can rely on the consent and prior in-
volvement of local jurists. Furthermore, the perception was arguably that
the involvement of local actors in the judicial process, despite potential
problems, was a political necessity. Firstly, failing to involve local actors
in a practice as significant to post-war reconstruction as the judicial pro-
cess, a process from which such actors may well have been excluded,
may be perceived as an attempt to impose outside justice, and may
lose the vital trust of the local community. And secondly, especially in
instances where ownership over judicial administration would rest with
the United Nations, involving local actors in the judicial process would
perhaps alleviate some concerns about the extent of the powers the in-
ternational community wields in the territory: it would give some level
of ownership over the judicial process to local actors for the time dur-
ing which sovereignty rests not with the nation but with the international
community.

Notes
1. For more on the UN’s peacebuilding endeavours see De Soto and Del Castillo (1994);
Ratner (1995); Mayall (1996); Doyle, Johnstone and Orr (1997); Pugh (2000); Cousens
and Kumar (2001); Chesterman (2004); Paris (2004); Caplan (2005); Dobbins et al. (2005).
For the peacebuilding efforts of the UN’s agencies see Whitman (1999). For theoretical
discussions on peacebuilding see, for instance, Galtung (1976); Lederach (1997); Doyle
and Sambanis (2000); Jeong (2002).
2. Dobbins et al. (2005: 39).
3. Ibid., p. 40.
4. San José Agreement 1992, “The Path to Peace”, para. 14(h), cited in Wilkins (1997: 272).
5. Wilkins, ibid.
6. Dobbins et al. (2005: 53).
7. Wilkins (1997: 272).
8. “Mexico Agreement” – see Treaties list.
9. Dobbins et al. (2005: 59).
10. See UN Security Council (1993b), a report discussed in Dobbins et al. (2005: 60); see
also UN Security Council (1993c). Other reform proposals included that all members
of the judiciary, armed forces and civil service named in their report were to be dis-
missed; all persons named in the report were also to be disqualified from public office
for a period of 10 years; and new legislation was to be adopted so that due process was
guaranteed in the criminal justice system and the effectiveness of habeas corpus could
be improved.
11. Johnstone (1997: 321).
12. Ibid.
13. President Cristiani, quoted here in Johnstone, ibid.
14. Dobbins et al. (2005: 60).
15. “Report of the Joint Group for the Investigation of Politically Motivated Illegal Armed
Groups”, UN Doc S/1994/989, 22 October 1994, p. 29, cited here in Dobbins et al. (2005:
60–61).
30 UNITED NATIONS JUSTICE

16. Dobbins et al. (ibid.: 61); see also Johnstone (1997: 332–335).
17. Johnstone (ibid.: 335).
18. For a further discussion of judicial reform efforts in Central and Latin America see
Domingo and Sieder (2001).
19. Dobbins et al. (2005: 77).
20. Mani (2002: 54); for more on UNTAC see Berdal and Leifer (1996); Heininger (1994).
21. Doyle (1997: 146).
22. Ibid.
23. Ibid., p. 147.
24. Plunkett (1998: 69).
25. Plunkett (1994: 71).
26. Plunkett (1998: 69); on this see also Amnesty International (2002a).
27. Human Rights Watch (2003); on this see also Linton (2002: 100–101).
28. The special prosecutor was Mark Plunkett, an Australian barrister.
29. Doyle (1997: 147).
30. Ibid., p. 148.
31. Plunkett (1994: 72).
32. Doyle (1997: 148); habeas corpus is a Latin legal term, literally meaning “[We command
that] you have the body”, and refers to a detainee’s right to be seen by a judicial au-
thority within a short amount of time after his or her detention, so that the authority
can rule on the legality of the detention.
33. Evans (1993: 110).
34. Ibid.
35. Dobbins et al. (2005: 85).
36. Ibid.
37. See UN Security Council (1993a), paras 4(c) and (d).
38. Ganzglass (1997: 29). Mark Plunkett (1998: 69) refers to this code as the former Italian
penal code.
39. Ganzglass, ibid., p. 30.
40. Ibid.
41. Ibid.
42. Ibid., p. 31.
43. Ibid., pp. 31–32.
44. Ibid., p. 31.
45. Ibid., p. 33.
46. Ibid.
47. See MICIVIH (1994b); document cited in Mani (2002: 65).
48. See “Le projet d’appui à la Justice de la MICIVIH” (MICIVIH’s assistance to the ju-
diciary report), July 1998, and “Summary of the Report on the Justice System (French/
English)”, May 1996, both available at www.un.org/rights/micivih/renforen.htm.
49. Mani (2002: 65); on this see also Maguire (1996); O’Neill (1995).
50. HRFOR (1996: 2), cited in Mani (2002: 64).
51. Mani, ibid.
52. The particular tasks were as follows: “Refurbishing material needs; transportation;
basic supplies; legal texts; recruiting and training judicial personnel; technical assistance;
prisons; judicial and legal reform.” See Mani, ibid.; see also HRFOR (1996: 4–12).
53. Mani, ibid.
54. UN Commission on Human Rights (1997), paras 157–158; the reference made is to a
HRFOR report of October 1996.
55. See Common Security Forum (1997).
 LEGAL AND JUDICIAL REFORM AND THE UNITED NATIONS 31

56. UN Security Council (1998), section 1. The Office of the High Representative was di-
rectly responsible to the Peace Implementation Council and was not a UN-related body.
57. See “Background Information on UNMIBH”, available at www.un.org/Depts/dpko/
missions/unmibh/background.html.
58. There is no transparency when it comes to UN internal documents and commu-
nications; while the United Nations frequently pushes for greater transparency in the
operations of certain governments, no Freedom of Information Act applies to the UN’s
non-classified documents, memoranda and other internal communications.
59. Plunkett (1998: 69).
60. See Evans (1993: 56, 100); Plunkett, ibid.
61. UN Security Council (2004); the report indicates that the United Nations has not
changed its position on this matter.
62. UN General Assembly and Security Council (2000b) (Brahimi Report), para. 83.
63. UN General Assembly and Security Council (2000c), para. 31.
64. Brahimi Report (UN General Assembly and Security Council, 2000b), para. 83.
65. Friedlander (2002).
66. For a good discussion of American constitutional reforms in Japan see Shoichi (1997).
67. See Uhler et al. (1958), particularly the commentary on Article 64. The reference here is
to “Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex:
Regulations Concerning the Laws and Customs of War on Land” – see Treaties list.
68. “Convention Relative to the Protection of Civilian Persons in Time of War” – see
Treaties list. Henceforth, the convention will be referred to as Geneva Convention IV;
Article 64 states that “The penal laws of the occupied territory shall remain in force,
with the exception that they may be repealed or suspended by the Occupying Power in
cases where they constitute a threat to its security or an obstacle to the application of
the present Convention.”
69. Hansjoerg Strohmeyer was a legal adviser to the SRSG in Kosovo and the UN’s prin-
cipal legal adviser in East Timor between October 1999 and June 2000. He is currently
chief of the Policy Development and Studies branch at the UN Office for the Coordina-
tion of Humanitarian Affairs (OCHA) at UN headquarters.
70. See UN Security Council (1999a, 1999e).
71. Strohmeyer (2001b: 58).
72. “Charter of the United Nations” – see Treaties list; henceforth UN Charter.
73. UN Charter, Article 55.
74. See Geneva Convention IV, Article 64.
75. For instance, the Genocide Convention, 1948; the Universal Declaration of Human
Rights, 1948; the Geneva Conventions on the Laws of Armed Conflict, 1949, and their
two additional Protocols of 1977; the Convention against Racial Discrimination, 1966;
the Convention against Torture and Degrading Punishment, 1984. For a good overview
of these documents and some introductory commentary see Roberts and Guelff (1989);
Brownlie (1992).
76. Neier (1998: 75); cited in Mani (2002: 88).
77. Mani (ibid.: 89).
78. Ibid.
79. On this issue see generally Kritz (1995); Huyse (1995); McAdams (1997); Robertson
(1999); Bass (2000); Hayner (2001).
80. Mani (2002: 89).
81. For more on the early truth commissions see Hayner (1994).
82. On this see Chesterman (2004: 158–161); see also Chesterman (2001b). Among the
Latin American countries granting amnesties for past atrocities in the 1990s were Chile,
32 UNITED NATIONS JUSTICE

Brazil, Uruguay, Argentina, Nicaragua, Honduras, El Salvador, Haiti, Peru and Guate-
mala. More recently this pattern has been repeated in African countries, such as Côte
d’Ivoire, South Africa, Algeria, Sierra Leone and Liberia.
83. Chesterman (2004: 161).
84. For instance, the NGO No Peace Without Justice has been pushing for an end to impu-
nity; Amnesty International has also come to favour prosecutions for past atrocities.
85. Chesterman (2004: 161); see also Mani (2002: 89); Bassiouni (1996).
86. See, for instance, Orentlicher (1991); Roht-Arriaza (1996); Scharf (1996); Ratner (1999);
Popkin (2000); for an opposing view see Osiel (2000).
87. Chesterman (2004: 161).
88. The statement can be found on the ICTY’s website at www.un.org/icty/cases-e/factsheets/
achieve-e.htm.
89. OCHA (2006).
90. Chesterman (2001b: 160).
91. Ibid.; see also UN Human Rights Committee (1996), para. 9.
92. See UN General Assembly (1996), para. 8, cited here in Chesterman (2001b: 160).
93. See Article 14 of the Abidjan Agreement – see Treaties list.
94. UN official, cited here in OCHA (2006).
 33

2
Introduction to the case studies:
Assessment criteria, case study
guidelines and case selection

The central question of this book is whether the five main elements of the
UN’s approach to legal and judicial reform in its governance operations
were suited to the task of establishing a sustainable legal system. This
chapter1 introduces the ways in which the book will address this question.
First, the elements of the UN’s approach are outlined, and the ration-
ale behind the particular focus and methodology of the work is clarified.
The criteria by which the sustainability of a legal system can be assessed
are then introduced, and the general questions which will be asked of
each case study are discussed. And finally some relevant terminology is
explained, and a justification for the case-study selection is offered.
In order to answer the central question, the case-study chapters in-
vestigate the relationship between the likelihood of establishing a sus-
tainable legal system within the territory under UN administration and
the five elements of the UN’s approach, which derive from the five as-
sumptions about legal and judicial reform discussed in Chapter 1 and
their subsequent implementation into practice. The five elements of the
UN’s approach are concordance of the applicable laws with prior legal
codes from the beginning of a mission; completeness of the human rights
catalogue from the beginning of a mission; reinstitution of a regular
court system from the beginning of a mission; pursuit of prosecutions for
past atrocities from the beginning of a mission; and local participation
in the judicial process from the beginning of a mission and to the fullest
extent possible. Thus the overarching question that Chapters 3 and 4
focus on is whether these five practical steps enhanced or diminished

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
34 UNITED NATIONS JUSTICE

the likelihood of establishing a sustainable legal system in the two cases

where the United Nations directly governed a territory.
There are two main reasons why the relationship between these five
elements and the likelihood of establishing a sustainable legal system is
the key focus of the investigation. In the first instance, the main goal of
peacebuilding, according to the United Nations, is “the creation of struc-
tures for the institutionalization of peace”,2 or put differently, the consoli-
dation of peace for the purposes of preventing the recurrence of armed
conflict. Thus the sustainability of the peace has become a key goal of
peacebuilding efforts. Since a sustainable legal system is integral to the
rule of law, and the rule of law is integral to a sustainable peace, investi-
gating whether the UN’s legal and judicial reform efforts help to estab-
lish a sustainable legal system is in turn important for the question of
whether or not the UN’s efforts are in fact helping to establish a sustain-
able peace. And secondly, the reason why the likelihood of establishing a
sustainable legal system is evaluated is because judging outright success
in creating such a sustainable system is difficult without the passing of a
significant amount of time. However, judging the likelihood of sustaina-
bility is a somewhat easier undertaking, even when only a relatively short
period of time has elapsed since the beginning and/or end of an operation.
Certainly, judging what constitutes a sustainable legal system – that is,
a sustainable legal framework and sustainable judicial institutions – is
a difficult challenge in its own right: in the first instance, the criteria by
which one judges whether a legal system is sustainable will determine the
direction of the entire discussion, so the inclusion or exclusion of certain
criteria will prejudice the conclusions to a certain extent. Secondly, what
may be necessary in the views of some for a sustainable legal system may
in the view of others lead to the downfall of that very system. Given that
it will not be possible to satisfy all expectations, the least controversial set
of criteria needs to be chosen.
Essentially, the criteria of sustainability selected for this book fall
into five categories. The first of these looks at the credibility of the legal
framework – that is, the system of rules which governs the respective
territory – and the credibility of the official administration of these rules,
and judges the sustainability of the legal system on whether or not the
system of rules that has been put in place violates any principles fun-
damental for the existence of a legal system, and whether the rules are
administered in accordance with such principles. The second category
of criteria assesses the effectiveness and correctness of the delivery of
justice, judging the sustainability of the system on whether or not the
workings of the judicial institutions and judicial personnel violate a set of
judicial norms. The third category assesses the quality of the legal frame-
work, judging the sustainability of that framework on the inclusion of the
 INTRODUCTION TO CASE STUDIES 35

most fundamental and basic human rights. The fourth category of criteria
evaluates the acceptability of the legal framework and the judicial insti-
tutions in the local community, judging the sustainability of the system
on whether it is tolerable locally and whether it has taken root in the
society. And the fifth and final category evaluates the viability of the legal
system, judging its sustainability on whether or not it has negative impli-
cations for the security situation on the ground.

Criteria for assessing the sustainability of a legal system

With regard to the assessment of the legal framework and its adminis-
tration, the first category, it is possible to turn to legal theory and look
for criteria that legal positivists and adherents to natural law agree upon
as fundamental to a system of legal rules and legal administration. One
such set of criteria was developed by Lon Fuller in his work The Morality
of Law.3 They comprise eight principles of legality, which a legal sys-
tem must not fail on if it is to be considered a legal system at all and
thus also if it is to be sustainable; these will be discussed in the first sub-
section. Legal theory does not, however, provide a similarly comprehen-
sive set of criteria by which the related judicial institutions and their
workings, the second category for assessment, can be judged, and con-
sequently such a set of criteria will be devised in the second subsection.
The third subsection sets out a number of fundamental human rights
standards and principles which should be part of a legal system if that
system is to be sustainable. The fourth subsection sets out a few simple
indicators which are used to judge whether a legal system has taken root
in a particular society. And the fifth and final subsection sets out some
indicators which are used to establish whether the legal system has nega-
tive security-related consequences.

Fuller’s principles of legality

Despite the age-old dichotomy in legal philosophy over the content of

law,4 when it comes to the procedural idea of law-making, the adherents
of the natural law tradition and legal positivists agree that a legal system
needs to adhere to certain principles. Lon Fuller expounded these prin-
ciples in The Morality of Law. What renders his work particularly appro-
priate for an evaluation of the international community’s effort at legal
reform is that Fuller wrote specifically about the attempt to “create and
maintain a system of legal rules” and the ways in which such an attempt
may fail; he describes his eight principles of legality in terms of “eight
distinct routes to disaster”:5
36 UNITED NATIONS JUSTICE

• the first and most obvious lies in a failure to achieve rules at all, so that
every issue must be decided on an ad hoc basis
• a failure to publicize, or at least to make available to the affected party,
the rules he is expected to observe
• the abuse of retroactive legislation, which not only cannot itself guide
action but undercuts the integrity of rules prospective in effect, since it
puts them under the threat of retrospective change
• a failure to make rules understandable
• the enactment of contradictory rules
• the enactment of rules that require conduct beyond the powers of the
affected party
• introducing such frequent changes in the rules that the subject cannot
orient his action by them
• a failure of congruence between the rules as announced and their ac-
tual administration.6

Fuller’s key contention about these principles is that “a sufficiently

gross departure from [them] . . . would result in something that was not
simply bad law, but not law at all”.7 Even Fuller’s harshest critics agreed
that the eight principles are necessary if a legal system is to exist.8
Thus we can agree that, without some minimal compliance with Full-
er’s precepts, there can be no legal system at all, and that a high degree
of compliance with them is necessary if the legal system is to deserve rec-
ognition as efficient and effective. The fact that his principles are widely
accepted as a standard upon which the relative success or failure of a
legal system can be measured, and that they provide a common ground
among positivists and adherents of the natural law tradition, means that
they can also be used as objective criteria to assess the success of the
UN’s efforts to establish legal regimes in its governance operations.
Fuller, however, was no utopian; he admitted that perfect compliance
with the precepts of legality is neither feasible nor desirable: a system “in
which all eight of the principles of legality are realized to perfection, is
not actually a useful target for guiding the impulse toward legality . . . ”.9
His reasoning was based on the distinction he made between the morality
of duty and the morality of aspiration. Fuller explains that:

Because of the affirmative and creative quality of its demands, the inner moral-
ity of law lends itself badly to realization through duties, whether they be moral
or legal. No matter how desirable a direction of human effort may appear to
be, if we assert there is a duty to pursue it, we shall confront the responsibility
of defining at what point that duty has been violated. It is easy to assert that
the legislator has a moral duty to make his laws clear and understandable. But
this remains at best an exhortation unless we are prepared to define the degree
of clarity he must attain in order to discharge his duty . . . All this adds up to
the conclusion that the inner morality of law is condemned to remain largely a
 INTRODUCTION TO CASE STUDIES 37

morality of aspiration and not of duty. Its primary appeal must be to a sense of
trusteeship and to the pride of the craftsman. [The one important exception to
these observations] relates to the desideratum of making the laws known, or at
least making them available to those affected by them. Here we have a demand
that lends itself with unusual readiness to formalization.10

Thus, following Fuller, when it comes to assessing the legal reforms

which the United Nations has undertaken, we have to assess not the ex-
tent to which the laws are, but the extent to which they fail to be, for in-
stance, clear, non-contradictory, constant, etc. The important exception, as
the statement above indicates, is that we need to assess whether the laws
are promulgated.
While it is evident that the United Nations is operating in complex pol-
itical environments, and that therefore it cannot expect to achieve the
highest levels of excellence in establishing legal regimes, Fuller’s argu-
ment that “total failure”11 or “sufficiently gross departure”12 from any of
his principles results in something that is not a legal system nonetheless
stands, and an assessment about the relative success of the UN’s legal
reform efforts must be made in that respect. Certainly, what constitutes
“total failure” or “sufficiently gross departure” from any of these princi-
ples is a matter of dispute; nevertheless, what we must assess in the
UN’s efforts is whether there is a failure to aspire to achieve these
criteria.

The judicial norms

Fuller’s theoretically agreed-upon principles do not extend to the prin-

ciples or norms a judiciary must not fail on in order to be considered a
sound judicial system, and thus cannot be used to judge the UN’s insti-
tutional reform efforts. It is therefore necessary to devise such a set of
criteria. Fuller wrote about the aim to “create and maintain a system of
legal rules”, and the ways in which such an effort may fail; this can also
be adopted for the goal of establishing and maintaining a judiciary, and
the ways in which such an effort may also fail. The proposed 10 distinct
routes to judicial disaster are as follows:
• a failure to establish a hierarchical institutional structure
• a failure to provide access to justice
• a failure to provide access to effective counsel
• a failure to provide an appeals procedure
• a failure to reach judgments impartially
• a failure to reach judgments independently
• a failure to hear cases within a reasonable amount of time
• a failure to deliver judgments within a reasonable amount of time
• a failure to provide adequate translation during trial proceedings
38 UNITED NATIONS JUSTICE

• a failure to deliver justice across different judicial bodies in a consist-

ent manner.

A total failure in any of these 10 routes does not simply result in a

badly functioning judiciary, but in something which cannot legitimately
be considered a sustainable judicial system or a judiciary which the
United Nations should wish to create or be associated with.
A brief explanation of the rationale for the inclusion of these criteria
may prove helpful. Firstly, perhaps the most obvious failure in the effort
to establish a judiciary is the failure to create a hierarchical institutional
structure. Without such a structure, a judicial system cannot exist, and
the structure needs to be hierarchical, meaning that there needs to be at
least a two-tier judicial system, so as to make the norm of providing an
appeals procedure meaningful – an appeal can only be filed if such a two-
tier judicial structure is in place since a higher judicial body is needed for
the review of an appeal.
Even if such a structure exists, unless it is accessible to the population
at large, the efforts at establishing and/or reforming a judicial system also
fail; what is meant here is that members of society should be able to seek
redress through the justice system, but also physical access in terms of
the infrastructure, as well as economic access, meaning that the poorest
members of a society should be able to access the justice system. What
is also meant is access for all minorities and both gender groups.13 The
provision of access to effective counsel is a key principle that must also be
observed.14 The important point is that defence counsel must be effective.
For instance, it is not sufficient to provide a detainee with a defence
attorney who does not hold adequate qualifications. Any failure in this
respect would clearly render the defence ineffective, and would thus vio-
late a defendant’s right to a fair trial.
The right to an appeal is one of the key provisions of a fair trial.15
In order to uphold this right, it is not sufficient to provide a mechanism
through which such an appeal can be launched, such as a higher tribunal;
what is needed are the means to make an appeal possible and meaning-
ful. For instance, “an unreasonably short time frame for lodging an appeal
and long delays in the appeal court rendering a judgement” are potential
obstacles to the realization of this right.16 Similarly, the failure to provide
transcripts of court proceedings upon which an appeal can be launched
would also render this right meaningless, since an appeals judge would be
unable to review a case adequately.
Furthermore, judicial impartiality is vital to the legitimacy of a judi-
ciary, as is judicial independence.17 A failure to deliver justice impartially
would undermine the entire basis for the existence of a judicial institu-
tion, and a lack of independence would render parts or the whole of the
 INTRODUCTION TO CASE STUDIES 39

judicial system obsolete. Detainees also have the right to a trial without
undue delay,18 which “includes the right to receive a reasoned judgment
(at trial and appeal) within a reasonable time”.19 But the question as to
what constitutes a reasonable amount of time for the preliminary hear-
ings on a case, the opening of a trial and the delivery of a judgment is
difficult. Amnesty International explains that:
What is a reasonable time is judged on the circumstances of the individual case.
Elements to be considered include: national legislation, whether the accused
is in custody . . . the complexity of the case, the conduct of the accused and the
conduct of the authorities. Trials lasting as long as 10 years have been deemed
reasonable, while others lasting less than one year have been found to be un-
reasonably delayed.20

The circumstances in a post-conflict society complicate matters slightly,

and what is a reasonable amount of time will depend on the particular
social and political circumstances. However, the end of a violent conflict
arguably heightens the desire which a society has for the quick delivery
of justice, given that it would frequently have been deprived of such jus-
tice for an extended period of time. Thus a public perception of unreason-
able delays in justice holds the potential to lead to a return to violence as
a way of dispute resolution, since any disaffected parties may seek justice
by other means, which would undermine not only judicial reforms but
also peace.
The right to an interpreter and to adequate translation of documents is
also vital,21 not only for a detainee’s right to understand the proceedings
of a trial, but importantly also for the determination of a party’s guilt or
innocence, and for the provision of an adequate transcript, which is, as
we saw, indispensable for the right to an appeal. And finally, an inability
to deliver justice across different judicial bodies in a consistent manner
would render a judicial system unjust; the location of a trial, the jurists
involved in the trial and the particular court in which a trial takes place
should have no bearing on the potential outcome of a case. If similar
cases result in different outcomes depending on such factors, the judicial
system would be operating inconsistently and thus unjustly, and would
fail in its existential purpose, which is to deliver justice.

The fundamental human rights standards and principles

The issue as to whether one can judge the sustainability of a legal sys-
tem on the inclusion of human rights standards and principles is conten-
tious. In the first instance, legal positivists, who unlike natural lawyers do
not believe that law must have a moral content in order to be consid-
ered law,22 would take the stance that judging the sustainability of a legal
40 UNITED NATIONS JUSTICE

system on what are essentially moral principles is wrong, and would re-
ject the need for such an element as a measure of sustainability. Further-
more, many would argue that even where such principles are part of a
legal framework, they may not be observed, as has been the case in many
nations under dictatorship; this fact, it could be argued, renders the inclu-
sion of such principles as a measure of sustainability obsolete.
However, the reason why these principles will be considered as a mea-
sure of sustainability is because it can be demonstrated that few legal
regimes which failed to incorporate the most basic human rights princi-
ples have been sustainable in the long run. Whether we consider the legal
regime in place under successive apartheid governments in South Africa
or in any number of other similar regimes, eventually they do come to
an end. Thus the inclusion of fundamental human rights principles as
part of a legal framework will be treated as an indicator of long-term
sustainability.
Some basic human rights standards and principles are outlined below,
and the inclusion as part of a legal framework of articles which reflect
the spirit, if not directly the letter, of each of these principles is a key cri-
terion on which the sustainability of the framework is judged. But their
inclusion as sustainability criteria does not suggest that they must all be
implemented from the beginning of a mission;23 rather, the UN’s over-
all efforts for the incorporation of these principles within the respective
legal frameworks will be assessed.
The 10 basic human rights principles which must be part of a legal sys-
tem if it is to be sustainable are as follows.
• Everyone has the inherent right to life, liberty and security of person.
This right shall be protected by law. No one shall be arbitrarily de-
prived of his life.24
• Everyone shall have the right to recognition everywhere as a person
before the law.25
• No one shall be held in slavery or servitude; slavery and the slave trade
shall be prohibited in all their forms.26
• No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.27
• All are equal before the law and are entitled without any discrimina-
tion to equal protection of the law.28
• No one shall be subjected to arbitrary arrest, detention or exile.29
• Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal in the determination of his rights
and obligations and of any criminal charge against him.30
• Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and free-
dom, either alone or in community with others and in public or private,
 INTRODUCTION TO CASE STUDIES 41

to manifest his religion or belief in teaching, practice, worship and

observance.31
• Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and re-
gardless of frontiers.32
• Everyone has the right to freedom of peaceful assembly and asso-
ciation.33

Articles 1–5 and 8 are non-derogable rights; Articles 6–7 and 9–10 are
rights from which the United Nations can derogate, especially during the
emergency phase of a mission.

The acceptability of the legal system in the local community

A key measure by which one can judge the sustainability of a legal sys-
tem is whether or not it is acceptable to the community that is meant to
be bound by it, and whether it has taken root in that community. Even
if a legal system is in line with Fuller’s principles of legality, the judicial
norms and the human rights principles, if it is not acceptable, and if it has
not taken root, then the chances that it will be sustainable are slim. Be-
low are four key indicators which can be used to judge whether or not a
legal system set up by the United Nations is acceptable to the community
it is meant to apply to, and the extent to which, if at all, such a system has
taken root in that community.
A legal system cannot be deemed to be acceptable, or to have taken
root, if either during or soon after the departure of the UN mission there
is/are:
• substantial changes to the legal framework and/or the judicial structure
• major competing or parallel legal frameworks and/or judicial mecha-
nisms operating
• major public opposition to the legal framework or judicial structure
• major opposition to the legal framework and judicial structure by local
jurists.

A brief explanation of these indicators is warranted: while changes to

specific laws and the creation or termination of particular judicial mech-
anisms, for instance, would not be considered as substantial changes, a
wholesale change to the basic legal code or to the entire judicial struc-
ture either during the UN’s mission or upon the departure of the United
Nations will be interpreted as an indication that the legal system has
been rejected. However, the coming into force of a new constitution,
which the United Nations has helped to shape, will not be considered as a
42 UNITED NATIONS JUSTICE

substantial change. Furthermore, customary dispute resolution mecha-

nisms and laws, for instance those present in some societies at the vil-
lage or tribal level, will not be deemed as competing or parallel judicial
mechanisms so long as there is a mechanism whereby disputed cases can
be referred to the UN-backed judiciary. However, should the legal system
be wholly absent from a province or large district of a host territory, as
a result of which a parallel court system functions and a parallel legal
framework applies, this will indicate that the legal system has not taken
root and/or is not acceptable.
The stipulation that there should be no major public opposition to the
legal framework or the judicial structure allows for a healthy level of op-
position or debate on proposed changes to laws or procedures, as can be
found in any society. However, it would count as major public opposi-
tion if, for instance, there were rejection by a significant proportion of an
ethnic or religious minority group, or by a major political party which
plays an important role in a territory’s political life, of the established
legal system. Finally, even if a population at large does not find the legal
system objectionable, if the jurists meant to operate within it are opposed
to it, it cannot function. But only instances where a substantial number
of local jurists register opposition to the legal system will be counted as
major opposition; thus individual judges, prosecutors or other lawyers
bent on spoiling the legal and judicial reform process would not count as
major opposition.

The viability of the legal system in terms of its security-related

implications

The final measure by which the sustainability of a legal system can be

assessed is whether or not it is viable in terms of its implications for
the security situation on the ground. It is conceivable that the United
Nations establishes a legal system that aggravates the security situation; if
this is the case, that system cannot be deemed to be sustainable by virtue
of the fact that it endangers the very peace which is essential for its exist-
ence. Below are three key indicators which can be used to judge whether
the legal system as set up has aggravated the security situation.
A legal system has negative implications for security if it can be shown
that:
• it exacerbates pre-existing tensions which have previously led to overt
violence
• it creates new tensions which have the potential to lead to overt vio-
lence
• it directly causes overt violence.
 INTRODUCTION TO CASE STUDIES 43

Case-study guidelines
Terminology

The central question of this book, identified above, is whether the five
key elements of the UN’s approach to legal and judicial reform in its
governance operations are suited for the goal of establishing a sustain-
able legal system. As the previous section has indicated, a sustainable
legal system for the purposes of this book is comprised of a system of
legal rules and a framework of judicial institutions which fundamentally
violate neither Fuller’s principles of legality nor any of the judicial norms,
and which, short of a duty of fulfilling these criteria, positively aspire to
be in line with them. Furthermore, a sustainable legal system is one which
incorporates and observes the 10 human rights principles and shows no
indications that it is not acceptable locally, or that it aggravates the se-
curity situation. The word reform is used in the broadest sense possible,
and includes, for instance, efforts to reform and/or establish a particular
institution from the ground up. And a governance-type UN operation is a
mission where the Security Council has vested all sovereign powers nor-
mally associated with a state, i.e. executive, legislative and judicial powers
over a certain territory, in that particular mission.
But what is meant by legal and judicial reform? International institu-
tions use a variety of names to refer to programmes that have a rule-
of-law component, such as administration of justice, judicial reform, legal
reform, etc.34 When discussing the international community’s rule-of-law
reform efforts, however, much of the literature fails to analyse compre-
hensively the different components of such efforts, and is not precise in
the use of terminology. Rama Mani, for instance, only discusses the re-
form of what she calls the “tripod” or “triad” of institutions of the rule
of law – that is the police, judiciary and prison service – to the exclusion
of legal reforms.35 Yet reforming the content of the legal framework, the
applicable law, is as vital to rule-of-law reform as any institutional re-
forms. Furthermore, her terminology lacks clarity and definition, because
the chapter in which she fails to discuss legal reforms is entitled “Legal
Justice: Order or the Rule of Law?”36
Moreover, while much of the literature distinguishes between, for
instance, police reform and judicial reform,37 the distinction between
judicial reform and legal reform is not always made, and the two are
frequently discussed under the common rubric of justice reform or the
international administration of justice.38 But while the two are indeed
related, a distinction between them is analytically useful, since the skills
required to undertake such reforms, and the principles these reforms
44 UNITED NATIONS JUSTICE

must follow, are different. Thus the phrase legal and judicial reform seeks
consciously to highlight the fact that the book is not just about legal re-
form or judicial reform, but is interested in investigating both.

Methodology

The methodological approach most appropriate for this study is known

as a “controlled comparison”.39 The premise behind this research strat-
egy is that the “intensive analysis of a few cases may be more rewarding
than a mere superficial statistical analysis of many cases”.40 Furthermore,
it is designed for instances in which the universe of cases of a particular
phenomenon is smaller than would be required for a statistical analysis,
or when scholars wish to study particular causal mechanisms in greater
depth than would be possible simply by examining statistical correla-
tions.41 Both of these apply to a study that focuses on legal and judicial
reform as an aspect of UN governance: firstly, the number of governance
operations where legal and judicial reforms were attempted is very lim-
ited; and secondly, the complex nature of such reforms certainly warrants
careful attention to the particulars of each case.
The emphasis of the methodology is on a structured and focused com-
parative approach. It is focused because “it deals selectively with only
certain aspects of the historical case” – in this instance legal and judi-
cial reform as an aspect of a governance operation; and it is structured
because “it employs general questions to guide the data collection and
analysis of that historical case”.42 Thus one of the key tasks in employing
this methodology is to formulate adequately the general questions one
must ask of each case, so that the information derived directly contrib-
utes to answering the question at hand.43
The analysis of each case will broadly consider the impact of the five
elements of the UN’s approach to legal and judicial reform on the mis-
sion’s efforts to establish a sustainable legal system. The assumption will
be that if the elements are suited to the task, then they should not detract
from the essential goal of establishing such a sustainable system. What
is meant by detract here is that these elements should lead neither to a
violation of Fuller’s principles nor to a violation of the judicial norms,
but instead should aspire to be in line with them. Moreover, the UN’s
efforts should not have failed in incorporating human rights principles
as part of the legal framework. Finally, the UN’s approach should not
have led to any of the circumstances which indicate that the legal system
is not acceptable locally, and no aspect of the approach should have ag-
gravated the security situation on the ground. Any of these outcomes
would clearly call into question the suitability of the approach to the stated
aim.
 INTRODUCTION TO CASE STUDIES 45

The “data requirements to be satisfied in the analysis of the cases”,44

that is the specific questions to be asked in each of the cases in the con-
trolled comparison, will be as follows.
• Did any of the five elements of the UN’s approach lead to a violation
of any of Fuller’s eight principles of legality? And did the five elements
demonstrate the UN’s aspiration to be in compliance with Fuller’s
principles?
• Did any of the five elements lead to a violation of any of the 10 judicial
norms? And did the five elements demonstrate the UN’s aspiration to
be in compliance with the judicial norms?
• Did any of the five elements lead to a failure on the part of the United
Nations or the local community to incorporate the 10 basic human
rights principles in the legal framework, or to a rejection of them as
part of that framework?
• Did any of the five elements lead to any of the factors which indicate
that the legal system has been rejected locally or has not taken root in
the society?
• Did any of the five elements lead to any of the factors which indicate
that the legal system has aggravated the security situation?

In answering the above questions, the analysis of the case studies will
give us an indication as to whether the UN’s legal and judicial reform
efforts aided or detracted from the goal of establishing a sustainable
legal system, and thus whether they enhanced or diminished the likeli-
hood that such a system would be established. If the key elements of
the approach detracted from the goal, that approach would need to be
reconsidered.

Case selection
The reasons why UN operations in particular are chosen for this inves-
tigation were expounded in the Introduction; but essentially, as the most
active peacebuilding body in the world, and as the organization which
has been recently involved in legal and judicial reform in war-torn ter-
ritories to the greatest extent, its particular methods merit close scrutiny:
firstly, because its past efforts are likely to influence any similar reforms
undertaken by the United Nations and other bodies in the future, and
secondly because any such future endeavours are more likely than not
to be UN-led once again. The particular interest in studying legal and
judicial reform in governance operations stems from the fact that, while
international territorial administration has emerged again as a method
applied by the international community for addressing the aftermath of a
46 UNITED NATIONS JUSTICE

conflict in a particular territory, the efforts to reform the legal framework

and judicial institutions in such operations have not been studied com-
prehensively or in any depth.
The universe from which the cases can be selected are instances where
the United Nations undertook some form of legal and judicial reform
as part of a governance operation. All in all, the United Nations has
had four governance operations to date: the UN Temporary Executive
Authority (UNTEA) in West New Guinea, or West Irian, from 1962 to
1963;45 the UN Transitional Administration for Eastern Slavonia, Baranja
and Western Sirmium (UNTAES) from 1996 to 1998; the UN Tran-
sitional Administration in East Timor (UNTAET) from 1999 to 2002;
and the UN Interim Administration Mission in Kosovo (UNMIK), which
began in 1999 and has not ended yet. UN governance missions were
previously envisioned for Trieste (1947), Jerusalem (1947) and Namibia
(1967), but were never created.46 Even though the United Nations had
“extensive administrative prerogatives”47 in the Congo during its mission
there between 1960 and 1964 (ONUC), it did not hold sovereign powers.
And while the Paris Peace Agreement for Cambodia envisioned that the
United Nations would exercise direct control over five key administrative
responsibilities of each of the four warring factions,48 the United Nations
never did exercise such direct control as a result of a host of problems,
and UNTAC’s role was scaled down to the supervision and monitoring of
the factions’ activities.49
From the UN’s four governance operations, it was only as part of
UNMIK and UNTAET that the organization undertook legal and judi-
cial reforms. The United Nations only briefly administered the territory
of West Irian after the Netherlands withdrew in 1962, prior to handing
over responsibility for the territory to Indonesia in 1963.50 Other than its
quiet acquiescence to an Indonesian-led and rigged popular consultation
with representative councils, which unsurprisingly voted unanimously in
favour of remaining with Indonesia after its occupation of the former
Dutch colony, the United Nations had no undertakings of any major sig-
nificance.51 And in Eastern Slavonia the UN’s primary responsibility was
to govern the territory until it could be reintegrated into Croatia;52 given
that the ultimate aim of the mission was to administer the region until
Croatia was in a position to extend its sovereign authority over the terri-
tory, no attempts were made to implement any justice sector reforms. The
UN executive largely left the administration of the region to the Serbs,
opting only occasionally to override certain decisions when it saw this
as necessary.53 Thus the two case studies at the centre of this work select
themselves: they are UNMIK and UNTAET, two missions which saw the
United Nations attempt to establish a new legal system virtually “from
the ground up”.54
 INTRODUCTION TO CASE STUDIES 47

What makes an investigation of the UN’s approach to legal and ju-

dicial reform in these cases interesting is that both are quite different.
While the East Timor mission was a case of UN governance in a territory
which was designated to become a new state, and which was emerging
from a two-decade-long illegal occupation, the Kosovo mission is a case
of UN governance in a territory whose ultimate political status was un-
certain. Looking at the reforms in cases which are politically different will
demonstrate the relative feasibility of using a similar reform method in
politically differing cases. Furthermore, looking at two cases rather than
just one is useful not only because it helps to confirm that, despite some
minor differences in the UN’s approach to justice sector reforms in both
of these missions, there was indeed a broad pattern to that approach, but
also because it helps to draw analytical comparisons between the reasons
for the relative successes and failures of that approach.

Notes
1. This chapter is modelled on Roland Paris’s (2004: 55–62) similarly entitled chapter in
his book At War’s End: Building Peace After Civil Conflict.
2. UN General Assembly and Security Council (1995), para. 49; cited in Paris (ibid.: 56).
3. See Fuller (1969: 38–39).
4. While natural lawyers argue that law must necessarily have a moral element, and that
what the law is cannot be separated from what the law should be, legal positivists argue
that law and morality are two separate realms, focusing instead on what the law is.
5. Fuller (1969: 38).
6. Ibid.
7. Ibid., pp. 38–39.
8. Fuller (ibid.: 197–198) cites the responses of his most respected opponents.
9. Ibid., p. 41.
10. Ibid., pp. 42–43.
11. Ibid., p. 39.
12. Ibid.
13. For instance, “International Covenant on Civil and Political Rights” (ICCPR) – see
Treaties list; Article 14(1) states that “In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law, everyone shall be entitled
to a fair and public hearing by a competent, independent and impartial tribunal estab-
lished by law.” See also, for instance, Article 6.1 of the “European Convention on Hu-
man Rights” – see Treaties list.
14. See “Basic Principles on the Role of Lawyers” – see Treaties list; Principle 1 states that
“All persons are entitled to call upon the assistance of a lawyer of their choice to pro-
tect and establish their rights and to defend them in all stages of criminal proceedings”,
thereby laying out the right to defence. Several other principles lay out the right that
this defence must in fact be effective: Principle 2, for instance, states that “Governments
shall ensure that efficient procedures and responsive mechanisms for effective and
equal access to lawyers are provided for all persons” and Principle 9 states that
“Governments, professional associations of lawyers and educational institutions shall
48 UNITED NATIONS JUSTICE

ensure that lawyers have appropriate education and training and be made aware of the
ideals and ethical duties of the lawyer and of human rights and fundamental freedoms
recognized by national and international law.”
15. Article 14(5) of the ICCPR specifies that “Everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal according to
law.”
16. See Amnesty International (1998: Section B, Chapter 26.3).
17. See “Universal Declaration of Human Rights” (UDHR) – see Treaties list; Article 10
states that “Everyone is entitled in full equality to a fair and public hearing by an inde-
pendent and impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him.” This article is similar to Article 14(1) of the ICCPR,
which emphasizes that “In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.”
18. Article 9(3) of the ICCPR stipulates that “Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to re-
lease”, and Article 14(3)(c) of the ICCPR states that “everyone shall be entitled . . . in
full equality . . . to be tried without undue delay”.
19. Amnesty International (1998: Section B, Chapter 24.3).
20. Ibid., Chapter 19.2.
21. Article 14(3)(f) of the ICCPR states that “In the determination of any criminal charge
against him, everyone shall be entitled to . . . have the free assistance of an interpreter if
he cannot understand or speak the language used in court.” See also Amnesty Interna-
tional (ibid.: Chapter 23.3), which states that “the right to an interpreter has generally
included the right of an accused to have relevant documents translated free of charge”.
22. See, for instance, Hart (1961).
23. The issue of derogation from human rights principles is discussed in Chapter 5.
24. UDHR, Article 3; see also Article 6(1) of the ICCPR.
25. UDHR, Article 6.
26. Ibid., Article 4.
27. Ibid., Article 5.
28. Ibid., part of Article 7.
29. Ibid., Article 9.
30. Ibid., Article 10.
31. Ibid., Article 18.
32. Ibid., Article 19.
33. Ibid., Article 20(1).
34. Mani (2002: 55).
35. Ibid., p. 56; Mani does have a section entitled “Contending with Customary Law and
Legal Pluralism”, but a discussion of a reform of the legal framework is largely absent
from her work.
36. Ibid.
37. See, for instance, Holm and Eide (2000).
38. See Chesterman (2002a).
39. See, for instance, George (1979).
40. Ibid., p. 50; on this see also Lijphart (1971: 685).
41. Paris (2004: 58).
42. George (1979: 62).
43. Ibid., p. 55; Paris (2004: 59).
44. George (ibid.).
 INTRODUCTION TO CASE STUDIES 49

45. For an overview of UNTEA see Higgins (1970: 101–106).

46. Caplan (2005: 18).
47. Ibid.
48. Foreign affairs, public security, finance, defence and information.
49. Caplan (2005: 18–19).
50. Ibid., p. 31.
51. Ibid.
52. Ibid., p. 19. See also “Basic Agreement on the Region of Eastern Slavonia, Baranja and
Western Sirmium, or Erdut Agreement” – see Treaties list.
53. Caplan (2005: 19).
54. Ibid., p. 61.
50

3
The UN Interim Administration
Mission in Kosovo

Background
The Kosovo conflict 1

The hostilities over Kosovo, between Christian Orthodox Serbs and its
predominantly Muslim Albanian population, go back to the defeat
of the Serbs in the Battle of Kosovo on 28 June 1389. Until then, Kos-
ovo was at the heart of the Serbian kingdom. However, when the Serb
Prince Lazar lost against the invading Turks, Kosovo became a part of the
Ottoman Empire for the following five centuries. Even though no longer
under Serbian authority, Serbian folklore kept Kosovo firmly embedded
in Serbian hearts and minds for six centuries after the territory was lost.
With the disintegration of the Ottoman Empire and the first Balkan War
in 1912, Serbia managed to reacquire Kosovo; since then, Kosovo has had
a violent history.
Between the First and Second World Wars Serbia attempted to con-
solidate its power over Kosovo by expelling the territory’s Albanian and
Turkish population, and redistributing the land of those expelled and
other non-Serb land-owners to Serb colonists. Once the German forces,
which had occupied Yugoslavia during the Second World War, were driven
from the territory in 1945, 10,000 Albanian troops fought 40,000 Serb
forces for control of Kosovo. The Albanians lost, with heavy casualties
being sustained on both sides; subsequently, the Serbs drove out many of

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
 KOSOVO 51

Kosovo’s Albanian inhabitants, deporting thousands to Turkey. Through-

out the 1950s violence against Albanians continued in sporadic outbursts,
with some incidents claiming dozens of lives.2
In 1974 Tito’s new Yugoslav constitution granted autonomous status
to the province, which it enjoyed until 1989. After Tito’s death in 1980,
resentment against some of his policies began to crop up in the indi-
vidual Yugoslav republics, and Serbia particularly felt that it had been
treated unjustly under the 1974 constitution. On the 600th anniversary
of the Battle of Kosovo in 1989, the then president of Serbia, Slobodan
Milošević, travelled to the famous Kosovo Field where Prince Lazar had
fought and lost the battle for Kosovo, and stripped the territory of its
autonomy in an impassioned Serb nationalist speech.3
After Milošević’s speech, the treatment of Albanians in Kosovo be-
came increasingly worse: Albanians were barred from holding public
office, and were effectively reduced to second-class citizens. In 1991 the
Yugoslav federation fell apart, and Slovenia, Croatia and eventually
Bosnia and Macedonia declared their independence; Kosovo followed
suit in May 1992. Kosovo Albanians chose as the first president of the
Republic of Kosovo Ibrahim Rugova, who at the time was the leader of
the Kosovo Democratic League. Rugova requested that a UN protector-
ate be established in Kosovo until full independence, and set up a govern-
ing system to take charge of taxation, health and education. Rugova
insisted that all anti-Serb protests remain non-violent; however, his cam-
paign failed to achieve the international community’s recognition of
Kosovo’s independence.
What followed were seven years marred by exchanges of violence be-
tween Serb authorities, police and paramilitary forces and Albanian sepa-
ratists, a conflict which culminated in NATO’s intervention in 1999. While
the early 1990s were far from trouble-free, President Bush’s Christmas
warning of 1992 to Milošević that Serbia itself would be attacked if it
used force in Kosovo had an impact on the Serbian leadership. Secretary
of State Warren Christopher of the first Clinton administration reiterated
the warning, and any indications of a potentially major Serb attack faded
away initially.4 While the situation in Kosovo remained relatively calm
during the war in Bosnia, the province did not escape the violence which
swept all of Yugoslavia. Even though Milošević had heeded Bush’s warn-
ing, and did not instigate a major offensive throughout the early and mid-
1990s, Serb violence against ethnic Albanian civilians, who made up 90
per cent of the population, became common. At the Dayton Peace Con-
ference in 1995 the international community was unwilling to jeopardize
the peace it had managed to secure for Bosnia by dragging further issues
into the agreement; this led to its failure to address the Kosovo problem
– a fact that came back to haunt it in 1998 and 1999.
52 UNITED NATIONS JUSTICE

As it became apparent that Rugova’s non-violent political campaign

had failed to place the Kosovo issue on the agenda at Dayton and pre-
vent further Serb abuses against Albanians, the province’s Albanians
grew increasingly impatient with him. Their support for the Kosovo Lib-
eration Army (KLA),5 an organization which had been in existence in
various forms throughout the twentieth century, but which surfaced once
again in 1992, grew steadily. From 1997 onwards the KLA and the Ser-
bian police and paramilitary forces fought each other, and the civilian
population, on many occasions. KLA attacks on Serb forces would incite
attacks by Serbs against Albanian villagers, which in turn would incite
further KLA attacks. Strategically, the KLA wanted to draw the Serbs to
commit many of the atrocities that they did commit, so as to attract the
international community’s attention to Kosovo; in the end, they suc-
ceeded in this. By the summer of 1998 Albanian civilian casualties were
in the hundreds and approximately 300,000 Albanians had been displaced
internally within Kosovo,6 placing the Kosovo question firmly on the
international agenda.
After several UN resolutions on the matter, and a near NATO inter-
vention in October 1998, a staged attempt to resolve the crisis diplo-
matically through peace talks was convened in Rambouillet, France, in
February 1999. The peace terms the United States offered to the Federal
Republic of Yugoslavia (FRY) would have been unacceptable to any gov-
ernment, and Rambouillet was less of a peace conference and more the
staging of a diplomatic effort to pacify those who would not go to war
without such a last attempt at diplomacy.7 After the conference failed,
NATO launched the first air-strikes against Serbian military targets in-
side the FRY on 24 March 1999. Seventy-eight days later the war on
Serbia, dubbed Operation Allied Force, came to an end after NATO and
the FRY reached an agreement on Serbia’s withdrawal from Kosovo on
9 June, and the deployment of an international security presence, the
Kosovo Force (KFOR), among others.8

UNMIK

On 10 June 1999 the Security Council passed Resolution 1244, establish-

ing the UN Interim Administration Mission in Kosovo (UNMIK).9 The
resolution mandated an international civilian presence “to provide an in-
terim administration for Kosovo under which the people of Kosovo can
enjoy substantial autonomy within the Federal Republic of Yugoslavia”.10
Resolution 1244 vested the UN mission with unprecedented sovereign
powers: it provided the mission’s head – the special representative of the
Secretary-General (SRSG) – with full executive, legislative and judicial
 KOSOVO 53

powers over Kosovo.11 And indeed, the first regulation or law which the
SRSG passed unequivocally stated that “all legislative and executive
authority with respect to Kosovo, including the administration of the judi-
ciary, is vested in UNMIK and is exercised by the Special Representative
of the Secretary-General”.12 Unlike in Bosnia, however, the international
community decided to place various actors under a single administrative
umbrella, headed by the SRSG.13 Four main pillars made up the original
administrative structure of the mission, and each of these pillars had the
lead responsibility in one specific area: the United Nations was in charge
of civil administration (Pillar II), the Office of the UN High Commis-
sioner for Refugees (UNHCR) was responsible for humanitarian assistance
(Pillar I), the European Union (EU) was given economic reconstruc-
tion (Pillar IV) and the Organisation for Security and Co-operation in
Europe (OSCE) was in charge of institution building (Pillar III). In June
2000, one year after the mission had begun, Pillar I for humanitarian
assistance was phased out and transformed into the pillar for police and
justice, which was placed under direct UN control.
UNMIK came to govern Kosovo in June 1999. While sovereignty over
the territory effectively rested with the SRSG, who derived his powers from
the Security Council and Resolution 1244, the United Nations neverthe-
less made the effort to involve local actors in the administration of the
territory: UNMIK initially established the Kosovo Transitional Council
(KTC), a body originally made up of 12 and later expanded to 35 mem-
bers of key ethnic and political groups. While the KTC played an impor-
tant role in the legitimization of UNMIK by virtue of its membership,
the body was also meant to ensure that local actors had some input into
the decisions that affected the running of the territory.14 Furthermore, six
months into the mission UNMIK also created the Joint Interim Adminis-
trative Structure (JIAS),15 which saw various departments under the four
different pillars co-headed by one local and one international official, the
so-called dual-desk model,16 thus again allowing for local input into the
governing of the territory. Local input into policy-making was attempted
through the establishment of the Interim Administrative Council (IAC),
an advisory body made up of eight members – four international UNMIK
officials, three Albanian officials and one Serb official.17
In May 2001 UNMIK created a constitutional framework which set out
new Provisional Institutions of Self-Government (PISG),18 replacing the
JIAS and IAC. This framework saw the establishment of a new legislative
assembly, made up of 120 local members, able to elect a president and
propose laws; an executive branch, run by a prime minister who is nomi-
nated by the president; and also a judiciary, made up of minor offence
courts, municipal courts, district courts and a supreme court. While this
54 UNITED NATIONS JUSTICE

governance structure ensured that Kosovo continued to enjoy substantial

autonomy from Serbia, it remained under the authority of the SRSG, and
thus the territory was firmly in the grip of the international community.

The five elements in practice

As argued in the previous chapters, the UN’s approach to legal and ju-
dicial reform consisted of five key elements. The aim of this section is
to demonstrate the validity of this claim with regard to Kosovo: the first
subsection focuses on the UN’s choice of applicable law for Kosovo; the
second considers the incorporation of human rights into the legal frame-
work; the third discusses UNMIK’s establishment of regular courts in
Kosovo; the fourth subsection discusses the plans for a war and ethnic
crimes court for the territory; and finally the fifth subsection specifies
how the United Nations tried to involve local actors in the judicial pro-
cess from the beginning of the mission.

Concordance of the applicable law with prior legal codes from

mission’s beginning

Given that Security Council Resolution 1244 (1999) vested the United
Nations with legislative and executive powers, UNMIK had free rein in
determining the applicable law; with this task, the United Nations found
itself in uncharted territory. The mission could have, for instance, chosen
to apply a generic off-the-shelf legal code, or martial law in combination
with a basic legal code drawn from previously applicable laws. Guided
by the assumption that the laws chosen from the beginning of a mission
must conform to previously applicable legal codes, UNMIK’s Regulation
1999/1 declared that “the laws applicable” in Kosovo immediately prior
to the commencement of NATO’s bombardments in the FRY in March
1999 would “continue to apply”.19 These laws were made up predomi-
nantly of the laws of Serbia,20 which along with Montenegro was one of
the two constituent territories of the FRY in 1999, and would continue to
apply, mutatis mutandis,21 as follows: firstly, only in so far as they did not
conflict with internationally recognized human rights standards; secondly,
as long as they did not conflict with the mission’s mandate; and thirdly,
they should not conflict with any UN regulations.22 Thus the United
Nations aimed to prevent contradictions in the legislation that could arise
from its attempt to combine previously applicable laws with human rights
standards and SRSG-issued laws.
While the decision to apply previously applicable laws was the UN’s
preferred option, it was supported by Russia, and possibly also China.
 KOSOVO 55

The UN’s Office of Legal Affairs was involved in the process of draft-
ing Regulation 1999/1,23 and during that process UN lawyers consulted
the member governments that had opposed NATO’s intervention in Kos-
ovo and supported the clause of Security Council Resolution 1244 (1999)
which reaffirmed the FRY’s territorial integrity.24 Russia and China, in
particular, had major political considerations regarding the future status
of Kosovo: it was important for both states that NATO’s intervention
would not change the FRY’s territorial boundaries. Any change in Kos-
ovo’s status would set a precedent which could have unwelcome legal,
political and security implications in the two states, which were them-
selves struggling with secessionist movements at the time. Russia, his-
torically an ally of the Serbs, would have insisted that the law in force
in Kosovo should continue to be the law of the Federal Republic of Yu-
goslavia, as it had been throughout the 1990s, arguably believing that by
applying the same law in Kosovo, a potential secession would be made
legally and politically more difficult.
This would seem to contradict Strohmeyer’s assessment that the deci-
sion to apply previously applicable laws in Kosovo was made “solely for
practical reasons”, such as “to avoid the need for local lawyers . . . to be
introduced to an entirely foreign legal system”.25 While the choice of law
may indeed have had positive practical implications, there were clearly
also political considerations at play. However, Russia’s position did not
force the United Nations into a position it did not already hold: Stroh-
meyer’s point about the perceived practicality of adopting Serb and Yu-
goslav law, and the UN’s assumption that laws must indeed be based on
previously applicable laws, suggest that the United Nations was likely to
have adopted such laws even without Russian pressure.

Completeness of human rights catalogue from mission’s beginning

UNMIK aimed to establish a human rights regime within the legal

framework: Regulation 1999/1 stipulated that the applicable laws would
only apply to the extent that they were not inconsistent with “inter-
nationally recognized human rights standards”, and made officials’ ob-
servance of such standards binding.26 This sweeping provision implied
that human rights law would not only apply but would override any
national legislation that came into conflict with it. The problem with this
regulation, however, was that it failed to clarify which particular hu-
man rights instruments applied. As will be discussed later in this chap-
ter, the question of whether or not human rights law applied in Kosovo’s
courts became a contentious issue, and it took five months to clarify the
matter.
56 UNITED NATIONS JUSTICE

Reinstitution of a regular court system from mission’s beginning

While the literature largely fails to pay attention to the type of courts
UNMIK established, some articles term UNMIK’s initial efforts to that
end as the “Emergency Judicial System”.27 Referring to this system as an
emergency system, however, is potentially misleading because it suggests
that these courts were different from the courts as they used to function
before NATO’s intervention or after UNMIK officially created the court
system with Regulation 2001/9.28
When UNMIK arrived in Kosovo, law and order had broken down:
the Serbs’ withdrawal left the territory in a legal vacuum since virtually
all police officers and most jurists working in Kosovo during Milošević’s
reign chose to leave in fear for their safety. The majority of the popu-
lation regarded the few jurists who remained as collaborators with the
oppressive regime; thus such jurists were unacceptable as candidates for
judicial posts, and the courts effectively ceased to function.29 To address
this problem, the SRSG first issued two emergency decrees – the first es-
tablishing an advisory council on judicial appointments, and the second
appointing local and international officials to act as advisers on this
council.30 Subsequently the SRSG appointed 55 judges and prosecu-
tors, and resurrected the district courts and prosecutors’ offices in Pris-
tina, Prizren, Mitrovica and Pec. Mobile units consisting of judges and
prosecutors who travelled by helicopter to conduct hearings, primarily
regarding bail for KFOR-arrested individuals, also began to operate out
of Pristina District Court31 and covered areas not included in the jurisdic-
tion of the other district courts, such as the district of Gnjilane.32
The mobile courts were arguably an emergency measure designed to
deal with the growing number of KFOR detainees. But while the restora-
tion of the district courts was said to be only provisional, and therefore
perceived as part of this emergency judicial system, very little about the
system – apart from the few weeks in which the mobile courts operated
– indicated that it was different from the regular court system existing
in the territory prior to March 1999. Interesting to note in this respect
is that the SRSG issued no emergency decree to establish an emergency
judicial system: the first two emergency decrees related to the appoint-
ment of the council that was to select judges, and then these judges were
simply appointed to some of the district courts as they had existed prior
to NATO’s intervention. The United Nations made the assumption that
these district courts had not ceased to function, despite the fact that
Belgrade’s administrative ties with Kosovo were severed when Kosovo
became an internationally administered territory. If UNMIK issued regu-
lations on the applicable law and emergency decrees on judicial appoint-
 KOSOVO 57

ments, it is curious that no regulation or decree was issued regarding the

courts.
The fact that UNMIK simply re-established the previously existing
court structure is confirmed when considering that, apart from appointing
criminal law judges within the judiciary, it also appointed five civil law
judges, three of whom were said to be employed by the Pristina Munici-
pal Court in 1999,33 even though civil trials did not commence until 2000.
The fact that this court was in existence in the first place, without a UN
regulation or decree to create it, attests to the fact that rather than es-
tablishing a genuine emergency judicial system, UNMIK simply took on
the regular court system which was in existence prior to the conflict, and
gradually employed more and more judges throughout that system.
The mobile courts operating for a brief period throughout the territory
were a potential indication that UNMIK may have been interested in a
solution to the judicial problem other than the revival of regular courts;
the other indication was UNMIK’s establishment of the Ad Hoc Court of
Final Appeal to hear appeals stemming from the district courts.34 How-
ever, even those indications do not suffice to imply that UNMIK was in-
terested in establishing anything but a regular court system: the Ad Hoc
Court of Final Appeal was simply a replacement for the previously exist-
ing Kosovo Supreme Court, which used to function as the appeals court
in Kosovo,35 and the mobile courts were identical in their structure and
procedures to the regular courts, the only difference being the lack of a
physical court building for them.
The ultimate indication that UNMIK was set on simply establishing a
regular court system early on, rather than an emergency court system,
comes from the former chief of the OSCE Mission in Kosovo’s Legal
System Monitoring Section, and a legal adviser to that section, who
noted that at the beginning of the mission:

there was a consensus within UNMIK that it might be necessary to declare

a state of emergency. Although such a declaration would have resulted in the
derogation of certain human rights for a limited period of time, there was
broad agreement among the human rights components that, given the circum-
stances, it was appropriate. Periods of detention could be extended (as they
eventually were), international judges and prosecutors could be brought in for
limited periods to preside over issues of arrest and detention, and an intensive
legal educational training program could be instituted. UNMIK demurred and
opted to forge ahead with plans to start the regular judicial system within a
matter of months.36

When UNMIK did finally and officially establish the regular court sys-
tem through the promulgation of Regulation 2001/9, many of the courts
58 UNITED NATIONS JUSTICE

it created already existed. The regulation specifies that there shall be a

Supreme Court of Kosovo, district courts, municipal courts and minor
offence courts.37 So the Supreme Court replaced the functions previously
carried out by the Ad Hoc Court of Final Appeal, and the district courts
had existed since the mission’s beginning, as had many of the municipal
and minor offence courts, even if they did not begin to hear cases until
2000. It should be noted that while a judicial structure may be referred
to as an emergency judicial system, what determines whether it truly
is an emergency framework is not the nomenclature used to describe
it, but the extent to which it can be distinguished from the institutional
structure, procedures and laws applied in courts which had previously
operated in a particular territory.38

Pursuit of prosecutions for past atrocities from mission’s beginning

UNMIK gave the issue of addressing past atrocities a high priority early
on. The UN’s position was that impunity cannot be tolerated, and ad-
dressing the war and ethnic crimes committed by Serbs and Albanians
was vital for the reconciliation of the two communities. Due to the very
hostile inter-ethnic relations and the highly unstable security situation,
however, it became clear that such prosecutions would require special
measures to ensure the fairness and effectiveness of the trials:39 essen-
tially, credible neutrality was indispensable.40 However, it also became
clear early on that the International Criminal Tribunal for the Former
Yugoslavia (ICTY) would not be the primary organ for the investigation
and prosecution of war crimes committed in Kosovo. In September 1999
Carla Del Ponte, the ICTY’s chief prosecutor, stated that the “primary
focus of the Office of the Prosecutor must be the investigation and pros-
ecution of the five leaders of the Federal Republic of Yugoslavia, and
the Republic of Serbia”,41 thus precluding any major involvement of the
court in Kosovo-related cases. In addition, UNMIK rejected the notion
of an international tribunal for Kosovo, believing initially that Kosovo’s
judges, many of whom had not practised law since being stripped of their
positions by Milošević in the late 1980s, were capable of coping with a
mounting caseload.42
But while the idea of an international tribunal was ruled out, a pro-
posal for the creation of a special war and ethnic crimes court in Kosovo
was circulating internally at UNMIK.43 The presence of only local and
predominantly Kosovo Albanian jurists within the judiciary had created
a problem for accountability and impartiality, precipitating a justice crisis;
and so support grew for the establishment of a special court which would
have jurisdiction over ethnically motivated crimes and war crimes com-
mitted during the conflict itself.44
 KOSOVO 59

In December 1999 UNMIK’s Technical Advisory Commission on Judi-

ciary and Prosecution Service45 proposed the creation of the Kosovo War
and Ethnic Crimes Court (KWECC).46 The idea was that the court would
try individuals for genocide, war crimes and crimes against humanity, as
well as other serious crimes committed on grounds of ethnicity, race, na-
tionality, religion, political opinion or association with a minority in the
territory of Kosovo since 1 January 1998.47 Essentially, KWECC was to
function within a broader system of adjudication between the domestic
courts and those of the ICTY, and it was to have concurrent jurisdiction
with the regular UNMIK courts. Importantly, it was to be separate from
the regular court structure.48 The chief prosecutor was to be given au-
thority to decide whether to hear a case or send it to another court, and
the court was to have primacy over other domestic courts and would be
able to assume jurisdiction over any case at any given point. KWECC
was to have concurrent jurisdiction with the ICTY but would defer to
its competence, focusing primarily on the less high-profile criminals
whom the ICTY did not have the capacity to try.49 The court was to be
composed of panels where local and international representatives would
hear cases together, but its chief prosecutor, deputy chief prosecutor,
registrar and staff, as well as its president and vice-president, would all be
international.
The proposal for KWECC was initially supported by UNMIK’s De-
partment of Judicial Affairs, which also spent considerable time and
resources in the development of operational plans for the court’s estab-
lishment. Progress on the court’s development was mentioned in two
consecutive Secretary-General reports, and its creation appeared to be
only a matter of time. However, despite the fact that according to one of
those reports the local and international response to the establishment of
the court was “favourable”,50 the court never became operational.51
While it is difficult to determine the precise reasons why the court did
not come into being, there was local as well as international opposition,
primarily on jurisdictional and budgetary grounds.52 Albanians objected
to the type of cases that the court would be allowed to try, feeling that in-
ternational judges and prosecutors should be permitted to try war crimes,
but that ethnic crimes should be left to the local judiciary; this essentially
amounted to a sanctioning of trials of Serbs charged with committing war
crimes, but an opposition to allowing internationals to get involved in
trials where Albanians were the suspected perpetrators of violence.53
Furthermore, Albanian legal experts claimed that KWECC would violate
the legal system in Kosovo.54 Their objection is likely to have been over
the fact that the court was to have primacy over regular courts, mean-
ing it would have had the right to request any case to be passed to it
for trial. Finally, the Albanian community felt that the local judiciary was
60 UNITED NATIONS JUSTICE

certainly capable of adjudicating these crimes in an impartial and compe-

tent manner.55
From the international perspective, international lawyers reported a
general perception that the court would be “a mini-ICTY and very expen-
sive”, and several states also opposed it.56 Some NATO member states in
particular were concerned about KWECC’s jurisdictional reach,57 and ar-
guably about the potential consequences its establishment might have for
NATO troops and the organization itself. In the end, the court became
the victim of the budgetary concerns of the UN’s Advisory Committee on
Administrative and Budgetary Questions in August 2000: one UN official
is reported to have expressed the view that since the ICTY commands
an enormous budget, “why pour money into a mini-ICTY that will cost
a fortune?”58 While the Albanians’ objections are unlikely to have had
a strong impact on the decision to do away with KWECC, the excessive
costs associated with its creation,59 along with the perception that the
court’s existence would interrupt the work of the ICTY and that a con-
flict of jurisdiction with the ICTY might exist,60 tipped the scale against
its creation.61 Furthermore, the United Nations also came to believe that
the presence of international judges and prosecutors, who had been in-
troduced in small numbers into the regular court system from February
2000, made the establishment of KWECC obsolete anyway.62
Fernando Castanon, who was to be the chief of the court, defended its
creation, arguing that the court would not violate the Kosovo legal sys-
tem, claiming instead that it would strengthen Kosovo’s legal capacities;
Castanon also dismissed the apparent dilemma over the court’s interrup-
tion of the Hague tribunal as entirely mistaken, but his defence was to no
avail. Despite having put significant efforts into its creation, the United
Nations at first repeatedly delayed the court’s establishment,63 then in
September 2000 quietly discarded its efforts to form the court. Neverthe-
less, UNMIK considered the issue of past atrocities a key priority, and
eventually chose to address war and ethnic crimes through the hybrid
court system it set up within the UNMIK judiciary.

Local participation in the judicial process from mission’s beginning

UNMIK’s view that local judges were capable of staffing the judiciary, as
discussed, initially prompted it to reject the creation of an international
judiciary for Kosovo.64 This approach was in stark contrast to the mis-
sion’s police reform efforts: UNMIK gave international police officers,
recruited from various UN member states, the prime responsibility for
law enforcement, and aimed to transfer that responsibility only gradually
to local authorities.65 When it reopened the Pristina District Court, how-
ever, UNMIK appointed local judges and prosecutors. This initial group
 KOSOVO 61

of appointees included a number of Serbs, but they left their offices rela-
tively quickly due to either threat of violence or actual aggression against
them.66 While a UNMIK advance team had contemplated the option of
appointing international personnel as judges, it decided that “in view of
the knowledge required in the domestic judicial system, UNMIK [would]
continue to fill the judiciary and prosecution services with professionals
recruited from among local lawyers”.67 Furthermore, despite the Serb
judges’ resignations and widespread concerns about intimidation,68 as
well as ethnic bias among Albanian jurists, UN officials nevertheless did
not opt to admit international judges at that stage.69 A high-ranking
UN official responded to such a proposal by stating that “This is not the
Congo, you know.”70
Thus it is clear that the UN’s initial position was that the challenges
of introducing international judges and prosecutors within the domestic
judicial system justified its position of appointing only local officials, and
outweighed the negative consequences which establishing a potentially
deficient justice system might bring.71 This initial reliance on local jurists
was eventually reversed; however, during the early stages of judicial re-
form, UNMIK limited its involvement in the judicial process to the ap-
pointment of judges and prosecutors, and supporting the local jurists in
their administrative and organizational duties.72 In July and August 1999
UNMIK appointed 55 judges and prosecutors on three-month short-term
contracts.73
In addition to employing Kosovan jurists, UNMIK created several
other mechanisms through which local actors became involved in the
judicial process from the beginning of the mission. The SRSG wanted to
involve locals in the process of appointments, and established the Joint
Advisory Council on Provisional Judicial Appointments (JAC/PJA) in the
first few weeks after his arrival;74 he appointed two Albanians, one Serb,
one Bosniak and three internationals to this council.75 In September 1999
came a few other initiatives: the SRSG established the Ad Hoc Court
of Final Appeal and also the Ad Hoc Office of the Public Prosecutor,
both of which were manned exclusively by local jurists.76 Furthermore,
he created the Technical Advisory Commission on Judiciary and Prosecu-
tion Service, which he established with the purpose of advising “on the
structure and administration of the judiciary and the prosecution service
in Kosovo”, and which was composed of “ten local and five international
members”.77
Moreover, the SRSG turned the Joint Advisory Council into the Ad-
visory Judicial Commission, which was to advise him “on matters related
to the appointment of judges and prosecutors . . . as well as on complaints
. . . against any judge or prosecutor” and had the potential to advise on
“issues related to the judicial system”; once again, the composition of this
62 UNITED NATIONS JUSTICE

commission was mixed, but with a predominantly local element.78 Impor-

tant to note is that although the power to appoint judges and members
of these commissions and administrative bodies remained in the hands of
the SRSG, it is evident that the United Nations nevertheless wanted to
involve local actors in the judicial reform process from the early stages of
the mission, and to the greatest degree that it considered feasible.

Legal and judicial reform developments

The aim of this section is to discuss the developments that followed
UNMIK’s initial reform efforts, and set the stage for an analysis of these
developments in the following section in terms of the set of questions to
be asked of the case studies, as outlined in Chapter 2. The account is pre-
sented as a narrative about the legal and judicial reform developments
from September 1999 onwards, and the specific challenges, obstacles and
dilemmas which the United Nations faced. This account, however, is not
comprehensive: it selectively discusses the major occurrences which are
relevant to the arguments to be presented in the analysis section.
One of the first major obstacles confronting UNMIK was the
Albanians’ rejection of the choice of law. As we saw, the United Nations
chose to use the laws applied prior to NATO’s bombardments in March
1999, at which time mainly Serbian law was in force. Members of the
Albanian legal community were particularly opposed to the application
of any Serbian laws passed under Milošević’s repressive rule.79 While
judges and prosecutors did not object to using the Federal Republic of
Yugoslavia Criminal Code, and where necessary the Socialist Federal Re-
public of Yugoslavia Criminal Code for criminal proceedings, many of
the same jurists disregarded Regulation 1999/1 and applied the Kosovo
Criminal Code, which had been annulled and replaced by the Socialist
Yugoslav Republic of Serbia Criminal Code when Kosovo was stripped
of its autonomy.80 Yugoslavia’s criminal codes were in effect in Kosovo
before the territory was stripped of its autonomy,81 but the criminal code
of Serbia in particular was considered the most potent instrument in
Serbia’s campaign of discrimination and repression against Kosovar
Albanians.82 Although the UN’s formulation did clearly make provisions
for the removal of discriminatory clauses from the law, the perception
among jurists, and especially a few judges in the Prizren District Court,
was that such a law signified the acceptance of the apartheid-like system
of discrimination set up by Serbia in the 1990s.83
Kosovar Albanians were unhappy that Security Council Resolution
1244 (1999) left Kosovo as part of the territory of the FRY,84 and their
 KOSOVO 63

views on the applicable law reflected this position. If outright indepen-

dence could not be obtained, the general preference was for the Kosovo
transition to begin from the time just before the province lost its autono-
mous status in 1989.85 But the views on how to deal with the newly es-
tablished laws were split. A group of six judges and prosecutors from the
Prizren District Court decided to work with UNMIK in its attempts to
establish the new legal system, even though they were opposed to the
application of Serbian law.86 This group of moderates decided that while
they would cooperate with the UNMIK authorities, they would not apply
any laws they interpreted as discriminatory and would seek a “construc-
tive evolution” of the laws in the near future.87 There was, however, an-
other group of hard-liners who from the beginning insisted upon a formal
return to the law as it had been prior to 1989.88 These hard-liners even-
tually persuaded others not to work, and found judges in Pristina who
supported their cause; they also succeeded in politicizing the issue in the
media, threatened other groups who opposed them and led a group of
politicians to threaten to break off their relations with UNMIK.89
On 12 December 1999, four-and-a-half months after it established the
initial legal framework, UNMIK responded to the political pressures
by passing Regulations 1999/24 and 1999/25, which made applicable the
law that was in force in Kosovo in March 1989.90 While Kosovo’s laws of
1989 did include both federal Yugoslav and Serbian law, after Milošević
stripped Kosovo of its autonomy Serbian law had completely replaced
Kosovan law; thus Regulation 1999/24 essentially replaced the Serbian
law which was applicable throughout the 1990s with the Kosovan legal
codes as they had been in 1989.91 However, given that applying Kosovo’s
old legal codes would have left many legal gaps, Regulation 1999/24
also made applicable other laws that had previously applied for cases not
covered by Kosovo’s laws:

If a court of competent jurisdiction or a body or person required to implement

a provision of the law determines that a subject matter or situation is not cov-
ered by the laws set out in section 1.1 of the present regulation but is covered
by another law in force in Kosovo after 22 March 1989 which is not discrimina-
tory and which complies with section 1.3 of the present regulation, the court,
body or person shall, as an exception, apply that law.92

Importantly, the regulation also stipulated that the FRY’s federal law
of criminal procedure would apply to defendants in criminal proceed-
ings.93 Shortly after Regulations 1999/24 and 1999/25 were promulgated,
the Secretary-General offered his interpretation of what the law actually
was according to these changes:
64 UNITED NATIONS JUSTICE

In essence, these regulations state that . . . Federal law will continue to apply
in any situation governed neither by UNMIK regulations nor the law in
Kosovo as at 22 March 1989. This includes the law of criminal procedure.
Serbian law will apply only in rare cases where the applicable law or Federal
law fails to cover a given situation or subject matter. In no case will laws be
applied that contravene, in any aspect, internationally recognized standards of
human rights.94

Through Regulation 1999/24, UNMIK also specified the human rights

instruments which would apply. Even though international criminal law
already applied in Kosovo through domestic legislation,95 and the FRY’s
constitution stipulated that international law is an integral part of the
state’s legal order,96 UNMIK wanted to ensure that international human
rights law applied expressly. As we saw, Regulation 1999/1 only stipulated
that human rights standards must be observed by those holding public of-
fice or undertaking public duties. Regulation 1999/24 took this statement
further by listing the specific instruments which applied.97 Notably, the
list in this regulation included a number of instruments to which the FRY
was not a party,98 and there was no mechanism in place for the ratifica-
tion of these treaties by a local assembly; they essentially became appli-
cable law by UN decree.
Initially, there was disagreement within UNMIK and in Kosovo’s legal
community as to whether or not international human rights law applied
in Kosovo, and also on whether the United Nations had the authority to
incorporate it into the legal framework.99 The OSCE held that “most of
the international treaties which apply directly in Kosovo are statements
of standards which may be very difficult to apply to individual cases”;100
it also argued that applying in domestic courts, for instance, the case law
of the European Court of Human Rights “creates problems across the
continent”,101 and that this problem pertains to Kosovo “in particular
as most of the judiciary and lawyers are familiar with a judicial system
where human rights law had never been applied, and where the use of
case law is unknown”.102 Furthermore, the president of Mitrovica District
Court announced in October 2000 that international human rights stand-
ards are not part of the applicable law and would not be applied by his
judges.103 Indeed, the fact that such standards were not part of the legal
framework until UNMIK’s arrival, and that local jurists were not previ-
ously exposed to such human rights laws and procedures, initially caused
a problem with their acceptance.
However, the view of those who argued that UNMIK’s mandate to
“protect . . . and promot[e] human rights”104 meant that such human rights
standards must be observed and the Secretary-General’s position that
persons holding public office and undertaking public duties are required
 KOSOVO 65

to observe such standards105 gave strength to the argument that human

rights law must apply in Kosovo, and this applicability was eventually ac-
cepted.106 By 2001 any remaining doubts about the applicability of inter-
national human rights law were resolved: the Constitutional Framework
for Provisional Self-Government107 incorporated the majority of the in-
ternational and European human rights instruments, and made them di-
rectly applicable in the territory.108
The applicability of international criminal law was less controversial,
since it was already applicable through the FRY’s federal criminal code,
which makes various war crimes and the crime of genocide punishable.109
But while the federal criminal code frequently went beyond the defini-
tions of the Geneva Convention on Genocide110 on some matters,111 the
fact that it makes no mention of crimes against humanity or any punish-
ment for such crimes, as international law has come to define them, was
problematic.112 The United Nations wanted to punish such crimes and
was prepared to prosecute them under international law, even though
such crimes were not mentioned in the federal criminal code:113 UNMIK
passed Regulation 2001/1, which specifies that international humanitarian
law will be interpreted as defined in Chapter XVI of the federal crimi-
nal code or in the Rome Statute of the International Criminal Code.114
The term or here allows room for including trials of violations of interna-
tional humanitarian law under the definition of the Rome Statute, which
includes crimes against humanity as part of that definition.
Cerone and Baldwin offer a precise and succinct summary of the status
of the applicability of international law in Kosovo:

Kosovo courts may apply international law in a number of ways. First, certain
international norms were fully incorporated into pre-existing domestic legisla-
tion, rendered applicable by UNMIK Regulation. In such cases, what is applied
is essentially domestic law, although the norms, as the domestic incorporation
of international norms, retain an international character. Secondly, the Yugo-
slav law on war crimes refers back to international law for its application. In
such cases, what is applied is a combination of international and domestic law.
Finally, the incorporation of human rights law into the applicable law by Reg-
ulation 1999/24 and Chapter 3 of the Constitutional Framework enables the
direct application of this branch of international law by the Kosovo courts.115

While the judiciary welcomed UNMIK’s reversion to the 1989 legal

codes, this decision did not prove to be popular over time.116 In 2004 the
deputy SRSG for the police and justice pillar, Jean-Christian Cady, re-
ported that:

There is still widespread dissatisfaction among certain politicians, judges, and

prosecutors and sections of the public with Kosovo’s continued reliance on the
66 UNITED NATIONS JUSTICE

law of the former Yugoslavia, which for Kosovo Albanians in particular is as-
sociated with a repressive socialist regime which is out of step with Kosovo’s
aspirations for its future.117

With the exception of some minor changes to the applicable law,118 and
despite this popular dissatisfaction, the FRY’s criminal procedure code
and the FRY, Serbian and Kosovar criminal codes continued to apply for
nearly four years.119 It was not until July 2003, after many efforts to cre-
ate a modern criminal and criminal procedure code for Kosovo which
would not only be in line with international human rights standards but
would also reflect the legal and penal developments of the 1990s and the
early twenty-first century, that such codes were promulgated;120 they en-
tered into effect in April 2004.121
Apart from UNMIK’s substantive policy reversal on its choice of law,
the mission similarly had to reverse its position on the appointment of
only local jurists to judicial posts. Early in 2000 there was a serious out-
break of ethnic violence in Mitrovica, a northern Kosovo city, triggered
by a grenade attack on a bus carrying Serb villagers and the bombing of
a local café;122 the violence resulted not only in a number of deaths on
both sides of the ethnic divide, but also in significant clashes with KFOR.
Such outbreaks of violence were in no small part attributed to local frus-
tration with the failure of the judicial process.123 More specifically, the
violence in Mitrovica made it clear to UNMIK that there were serious
concerns about the judiciary’s impartiality, competence and sensitivity to
human rights.124 Thus, eight months after UNMIK opted for hiring only
Kosovans for judicial posts, the mission found itself in a position where
the failures of the judicial reform process were directly linked to some of
the ensuing violence in the province, and consequently it had to alter its
approach.
On 15 February 2000 UNMIK passed Regulation 2000/6,125 which
enabled the SRSG to appoint international judges and prosecutors to
work in the Mitrovica District Court, as well as the Mitrovica munici-
pal and minor offences courts.126 Within two days an international judge
and prosecutor had been sworn in,127 with the power to take on any case
pending in the district.128 While one academic attributes the change in
UNMIK’s position more to a rebellion of Albanian judges and a number
of attacks against Serb judges,129 it is clear that the violence in Mitrovica,
sparked in part by the UN’s failed judicial reform efforts, played a key
role in the UN’s revised policy.
The introduction of international judges and prosecutors (IJPs) in
Mitrovica soon led to their introduction throughout the whole province.
Two months after the violent clashes in Mitrovica led to the appointment
of IJPs there, Serb and Roma detainees in Kosovo staged a hunger strike
 KOSOVO 67

in complaint about their lengthy pre-trial detention periods, and about

alleged bias in how the judiciary treated them in comparison to how it
treated Albanians.130 Soon after the protest began, the SRSG promised
this group that either Serb or international judges would hear their cases;
this development led to the amendment of Regulation 2000/6 through
Regulation 2000/34 in May 2000, expanding the IJPs’ reach to the entire
Kosovan territory.131 Thus the SRSG was able to send international ap-
pointees to any court or prosecutor’s office in Kosovo.
The passing of these regulations, however, had not completed the UN’s
policy reversal. It was not until December 2000, when UNMIK promul-
gated Regulation 2000/64,132 that the judicial process was transformed
from one controlled by local jurists, as was originally intended, to one
dominated by the international community. The regulation essentially
gave the accused, the defence counsel and the prosecution the right to
petition UNMIK to intervene and assign a panel of three judges,133 at
least two of whom would be international, including the presiding judge,
the right to change the location of a trial and the right to request an in-
ternational prosecutor to be assigned to a particular case.134 With the
promulgation of Regulation 2000/64, Kosovo’s justice system gained for
the first time in more than a year a semblance of credible neutrality.135
Apart from UNMIK’s policy reversals on the applicable law and the
employment of international jurists, some aspects of its method of ad-
dressing the security situation are of particular relevance for the analysis
in the next section: the permission to carry out preventive detentions, the
issue of executive detentions and the problem of lengthy pre-trial deten-
tion periods. In the first two months after the conflict ended there were a
number of violent incidents; as the SRSG’s legal adviser, Hansjoerg
Strohmeyer, put it: “Looting, arson, forced expropriation of apartments
belonging to Serbs and other non-Albanian minorities, and, in some cases,
killing and abduction of non-Albanians became daily phenomena.”136
In response to this surge in violence, and the consequent threat to the
security situation, KFOR carried out a number of large-scale arrests to
restore order; in two weeks, KFOR detained 200 individuals, some of
whom were held for violent crimes and some for serious violations of
international humanitarian and human rights law.137 While these efforts
helped to stabilize the security situation, UNMIK felt it necessary to
go one step further and issued Regulation 1999/2, which gave the law-
enforcement authorities the right to carry out preventive detentions for
security purposes,138 a controversial right from the perspective of interna-
tional human rights law.
What was arguably more controversial than the law on preventive de-
tentions was UNMIK’s issuing of executive detention orders on a number
of occasions. One of the more prominent cases was that of Afram Zeqiri,
68 UNITED NATIONS JUSTICE

a former KLA fighter. The authorities arrested Zeqiri for the murder of
three Serbs, but the Albanian judge presiding over his case ordered his
release for lack of evidence, which raised suspicions of judicial bias.139
When an international judge upheld this decision, however, the then
SRSG, Bernard Kouchner, ordered that Zeqiri be held with an execu-
tive order of detention, citing security reasons for this decision and argu-
ing that such a move was possible through the powers vested in him by
Security Council Resolution 1244 (1999).140 Kouchner’s successor, Hans
Haekkerup, also issued executive detention orders. For instance, four
Albanians had been arrested on suspicion of having bombed in Febru-
ary 2001 a KFOR-escorted bus carrying Serbs from the Serb town of Nis
into Kosovo; the bombing had resulted in the death of 10 Serbs and had
wounded over 40 others.141 While a panel of international judges ordered
the suspects’ release, this order was overridden by successive SRSG
orders of executive detention.142
Various human rights groups, including Amnesty International and
Human Rights Watch, as well as other bodies, such as the OSCE Om-
budsperson Institution in Kosovo, criticized these executive orders, and
similar special holds issued by KFOR, for lacking a clear legal basis in the
Security Council mandates, and also for breaching human rights stand-
ards which guarantee individuals the right against arbitrary arrests.143
UNMIK responded to such criticism by stating that Kosovo:

Still ranks as an internationally-recognised emergency . . . [and that] interna-

tional human rights standards accept the need for special measures that, in the
wider interests of security, and under prescribed legal conditions, allow authori-
ties to respond to the findings of intelligence that are not able to be presented
to the court system.144

Nevertheless, UNMIK established a detention review commission,

comprised of three international judges, who were to judge the legality of
such executive detentions.145 The Ombudsperson Institution questioned
the legitimacy of this commission, but the commission upheld the SRSG’s
continued detention of several suspects, who were only released when the
commission’s three-month term had ended by an order from Kosovo’s
Supreme Court.146 Eventually, the issuing of extra-judicial detention
orders subsided significantly, and several measures aiming to protect the
rights of detainees were introduced;147 but the precedent of executive in-
terference with the judiciary was set.
The basic legal and judicial framework remained largely unchanged
thereafter. There were a few minor changes in judicial administration and
the institutions,148 and many new laws were introduced, mostly by the
United Nations in the early stages but more recently also by Kosovo’s
 KOSOVO 69

assembly;149 fundamentally, however, the 2001 Constitutional Frame-

work for Provisional Self-Government maintained the legal and judicial
framework as it had been for UNMIK’s first two years. The Regulation
64 courts remained in operation, and the SRSG maintained the ability to
approve or deny petitions for the introduction of IJPs or the change of
location for trials. The overall aim of UNMIK’s legal and judicial reform
efforts was the establishment of a multi-ethnic judiciary which is impar-
tial and independent; the question is whether the UN’s approach, and
some of the developments it led to, aided or detracted from the establish-
ment of a sustainable legal system, and thus the achievement of this goal.

Analysis and discussion

The analysis of this case study will broadly consider the impact of the
five elements150 of the UN’s approach on the likelihood that the mission
would succeed in its effort to establish a sustainable legal system. Five
sets of decisive questions151 are asked of the case study in judging wheth-
er or not the UN’s approach enhanced or diminished the likelihood of
establishing a sustainable system. The analysis and discussion presented
here answer each of the five questions in separate subsections, with the
ultimate aim of discovering whether or not the UN’s approach was suited
to the challenges and complexities of the mission’s task.

Adherence to Fuller’s principles of legality

This subsection focuses on the question whether the UN’s approach led
to a violation of any of Fuller’s eight principles of legality,152 and also
whether the adoption of the particular approach demonstrated the UN
peacebuilders’ aspiration to be in compliance with these principles. Fuller
argued that a complete failure in any one of his eight principles amounts
to something that cannot be legitimately called a legal system. Thus the
aim here will be firstly to assess the extent to which the UN’s approach
led to any such failures, and secondly whether the UN’s approach indi-
cates an aspiration to be in line with these principles. If a total failure or
gross departure from any of them has occurred, or if it can be shown that
the UN’s efforts do not demonstrate an attempt to be in line with these
principles, the approach cannot be the appropriate method for building a
lasting legal system. The discussion begins first with an exposition of the
various ways in which Fuller’s principles were breached, and then links
these breaches to the UN’s approach.
Fuller believed that “clarity represents one of the most essential ingre-
dients of legality”;153 indeed, the “failure to make rules understandable”
70 UNITED NATIONS JUSTICE

is one of the eight routes to disaster.154 However, this principle of clarity

not only refers to the need for laws to be formulated in clear language,
but also to the need for clarity on the applicability of laws; rules are just
as difficult to understand if they are not worded clearly as if there is a
lack of clarity on when, how and in what circumstances they should ap-
ply, and this was one of the very early and significant problems with the
UN’s system of rules in Kosovo.155 The essence of the problem was that
various bodies of law operated within the legal framework, creating a
lack of clarity on what the law actually is, and particularly how it should
be applied. As discussed, after UNMIK was forced to reverse its policy
on the applicable law, the legal framework was made up of UNMIK reg-
ulations and the law of Kosovo as of 22 March 1989; in cases not covered
by either of these laws, federal law was to be applied, and if federal law
did not cover a particular case, Serbian law would apply. In addition, the
federal law of criminal procedure would apply to defendants in crimi-
nal proceedings. However, all judges, prosecutors and defence counsellors
also had to take human rights legislation into account.
Clearly, such a system would be confusing for even the best lawyers.
With the multitude of applicable laws, it would be up to the judges, pros-
ecutors and defence lawyers to dispute what laws should apply in specific
circumstances. This inevitably created an unfair system: defendants were
not treated equally under the law, since different judges and prosecutors
applied different laws to similar cases. Kosovar lawyers from Prizren
stated that while some laws were applied, others were not; furthermore,
OSCE lawyers complained that there were “too many laws – from Kosovo,
Serbia, FRY, UNMIK, European Convention”, and UN lawyers also stated
that it was not possible to establish what body of law, or which specific
law, to use in a particular case.156
The OSCE’s first report on the criminal justice system summarizes the
problem succinctly:

The myriad of sources of law in Kosovo created by UNMIK mean that under-
standable confusion continues to exist amongst the judiciary and lawyers as
to which law applies in specific cases. This confusion is most noticeable when
it comes to applying human rights standards. The major problems found by
LSMS relate to: first, a lack of clarity over which laws take precedence in the
case of conflict; second, the problems of directly applying human rights law, in-
cluding the lack of knowledge of such law and how to implement it; and third,
the problems of ensuring that all authorities are bound by the law – which is a
basic principle for all democratic countries . . . With so many potential sources
of law, it is very important for clarity to exist as to which takes precedence. This
is not, however, the case in the current law in Kosovo. Although regulations
take precedence over the 1989 law, the hierarchy between the other sources
of law is not made clear . . . The major problem remains that the supremacy of
 KOSOVO 71

international human rights laws over domestic laws is not expressly stated in
Regulation 1999/24.157

Furthermore, the OSCE also highlighted another problem with the

clarity of the laws, namely that the UNMIK regulations “frequently add
further confusion to the applicable law, either through their lack of con-
textualisation or due to the fact that some regulations are themselves in
breach of human rights provisions”.158 And finally, the OSCE was con-
cerned about the “quality of the official translations of regulations”.159
Some of the translators lacked the required standards of knowledge of
legal terminology, adding a further problem of clarity for the rules.
Fuller wrote that “obscure and incoherent legislation can make legality
unattainable by anyone”.160 While Kosovo’s legislation was not necessar-
ily incoherent, it was certainly obscure: the individual paragraphs of the
various codes applied were in themselves expressed clearly, but obscu-
rity resulted from the multitude of applicable legal codes. The suggestion
here is that creating a legal framework made up of so many different
legal codes that it becomes difficult to know which to apply in what cir-
cumstances is the logical equivalent of writing a law that is not clearly
expressed and cannot be understood; thus if there is so much competing
legislation in a legal framework that it becomes difficult or impossible for
legal experts to determine what laws should apply, there is a situation of
obscurity in the law. Fuller also wrote that “it is a serious mistake – and
a mistake made constantly – to assume that, though the busy legislative
draftsman can find no way of converting his objective into clearly stated
rules, he can always safely delegate this task to the courts or to special
administrative tribunals”.161 UNMIK committed a similar mistake: it
created a confusing system of rules, and relied on courts and lawyers to
identify the appropriate laws to apply to the given circumstances.
The contentious question is whether UNMIK’s creation of an obscure
legal regime amounts to a total failure to establish understandable rules.
On the one hand, it can be argued that it does not, because the rules as
written are understandable; on the other hand, creating an obscure legal
regime is certainly a violation of the spirit of Fuller’s principle of clarity.
All in all, it can be concluded on the issue of clarity that in establishing
a legal regime for a war-torn society where local and international inter-
ests may not overlap fully, yet a legal system agreeable to both is needed,
Fuller’s desideratum that rules must be understandable needs to be ex-
panded to apply to the entire regime.
Thus creating an understandable legal regime must be an essential
requirement for the establishment of a sustainable legal system. Fuller
wrote that “there can be no rational ground for asserting that a man can
have [an] . . . obligation to obey a legal rule that . . . was unintelligible”.162
72 UNITED NATIONS JUSTICE

In a similar vein, the public cannot be expected to know what rules to

follow in a legal regime that is confusing; and jurists cannot be expected
to operate within a system made up of many and potentially compet-
ing legal codes, where it is impossible to judge what laws to apply. While
some of the problems of clarity about the applicable law, the hierarchy of
the laws, etc., did eventually subside,163 it will be argued below that it was
the UN’s approach which led to these problems of clarity.
Apart from creating a confusing system of rules, UNMIK also en-
acted contradictory legislation. While Regulation 1999/1 determined that
human rights standards have to be observed, Regulation 1999/2 con-
tradicted this rule: with Regulation 1999/2, UNMIK granted powers to
the authorities to detain individuals temporarily if they need to prevent
access to certain locations or prevent interference with public duties of
emergency services or any other emergency activities.164 However, this
regulation was a violation of human rights standards, in that it permitted
preventive detention for security purposes, which is “a form of detention
clearly forbidden by Article 5(1) of the European Convention on Human
Rights (ECHR) and its case law”.165 Even though Regulation 1999/1 did
not specify that the ECHR in particular would apply, Regulation 1999/24
made the ECHR applicable in Kosovo.166 And thus, in making applica-
ble a human rights convention under which preventive detentions are not
permitted, yet also allowing a law to stand which calls for such preventive
detentions, the United Nations clearly violated the principle that rules
must not be contradictory.
Furthermore, in passing Regulation 1999/26 “On the Extension of
Periods of Pre-trial Detention”,167 UNMIK enacted a further piece of
legislation which stood in direct contradiction to Regulation 1999/24 and
the applicable human rights standards. Various organizations deemed
Regulation 1999/26 to be unlawful: an OSCE report, for instance, argued
that it “fails . . . to strike a proper balance between the imperative duty to
safeguard the right to liberty and the need to detain those charged with
serious criminal offences, pending the establishment of a fair and ade-
quately functioning criminal justice system”; more specifically, it deemed
the regulation to be in violation of Articles 5(3)–(4) of the ECHR and
Articles 9(3)–(4) of the ICCPR, which also became applicable law
through Regulation 1999/24, in that it fails to “make adequate provision
for the periodic review of the extension of custody time limits” and to
“provide the detainees the right to initiate a review of an order for deten-
tion throughout the period of detention”.168 Furthermore, it considered
three months to be an excessive extension of the period which UNMIK
allows before an application for renewal of extension is required.169
Amnesty International also noted that the detention of certain indi-
viduals went six months beyond the pre-trial detention period provided
 KOSOVO 73

for in the FRY Code of Criminal Procedure, which was applicable. It

was particularly “concerned that the extension of pre-trial detention per-
mitted by Regulation 1999/26 should not result in violations of the rights
to which all those held in pre-trial detention are entitled under interna-
tional human rights law”.170 Also citing Articles 9(3)–(4) of the ICCPR,
Amnesty urged that “UNMIK promptly amend Regulation 1999/26 so
that it conforms with internationally recognized human rights stand-
ards”.171 Finally, Amnesty highlighted that detainees had no ability to
challenge decisions by the Ad Hoc Court of Final Appeal,172 and that it
was unclear “whether the procedure involving the Ad Hoc Court of Final
Appeal provides a comprehensive review of the legality of continued
detention, as envisaged in international standards”.173
UNMIK regarded Regulation 1999/26 as necessary “in order to ensure
the proper administration of justice”, and wanted to allow for the exten-
sion of the pre-trial detention period in order to ensure that justice was
carried out.174 Its concern was that detainees who had not been brought
to trial for the lack of a well-functioning judiciary should not be released,
so as to limit impunity for serious crimes. Releasing serious crimes sus-
pects without a trial into communities where they could be recognized
as offenders had the potential to undermine UNMIK’s effort to establish
local trust in the justice system and destabilize the security situation,
since these individuals had the potential to inflame the unstable peace.
While the regulation was conceived with good intentions, it clearly con-
stituted the enactment of contradictory legislation; however, whether this
amounts to a gross departure from the principle of non-contradiction is a
different matter. There are indeed many legal systems where individual
pieces of legislation are contradictory, and thus the enactment in Kosovo
of some laws which are contradictory to the applicable human rights in-
struments may not in itself amount to a total failure of the principle of
contradiction: overall, the legal regime in Kosovo was non-contradictory.
But it could be argued that the enactment of such laws demonstrates that
UNMIK did not aspire to be in line with a fundamental legal principle.
It also created further legal confusions: although Regulation 1999/1 re-
quired that the previously applicable laws apply only as long as they are
not inconsistent with human rights standards and any UN regulations, it
was not clear whether the UN’s own laws also applied only so long as
they were not inconsistent with such standards.
While the passing of Regulations 1999/2 and 1999/26 amounted to the
enactment of contradictory rules, the SRSG’s executive detentions vio-
lated Fuller’s principle on the need for congruence between the rules as
announced and as administered. As discussed, several SRSGs issued
extra-judicial detention orders for suspects whose release had been
ordered by UNMIK-appointed international judges due to a lack of
74 UNITED NATIONS JUSTICE

evidence. The Ombudsperson Institution in Kosovo called on the SRSG

to stop using such executive orders on the grounds that “no law . . . in
force in Kosovo provides for deprivations of liberty grounded solely on
the discretion of the SRSG”,175 arguing that even if such a law existed, it
would be incompatible with the ECHR’s Article 5.176
The Ombudsperson Institution further argued that the executive deten-
tion orders violated the ECHR’s Article 5 in that no court was involved
in the order of detention, they provided no grounds for the detention
to the detainees, failed to provide a mechanism for detainees to chal-
lenge the lawfulness of the detention, thereby violating the detainees’
habeas corpus right, and finally failed to provide a mechanism through
which detainees could receive compensation for an unlawful detention.177
Especially the failure to provide a mechanism for habeas corpus review
violated Fuller’s principle of congruence: Fuller considered habeas cor-
pus to be one of the key procedural devices designed to maintain the
desired congruence between the laws as announced and their actual ad-
ministration,178 but the extra-judicial detention orders, and the SRSGs’
failure to establish a detention review mechanism for such orders until
2001, clearly violated this principle.
Finally, the Ombudsperson Institution stressed that the ECHR case
law confirms that the list of reasons for detention is exhaustive, and
any expansion of this list by an executive or a legislature would violate
the convention’s Article 5(1). Thus, in accordance with the convention,
citing national security or public order as grounds for detention is not a
legitimate reason for the deprivation of liberty.179 The UN’s response to
this criticism, as we saw, was to pass Regulation 2001/18, establishing a
detention review commission for executive orders;180 however, in a fur-
ther report the Ombudsperson Institution rejected the notion that this
commission would constitute a court in the sense of Article 5(4) of the
ECHR, and recommended that the SRSG end the practice of issuing ex-
ecutive orders.181
The executive detentions clearly violated Fuller’s principle that there
must be no failure of congruence between the rules as announced and
their actual administration: UNMIK made the ECHR and ICCPR appli-
cable law in Kosovo, but the executive detentions were in direct contra-
vention of these conventions, and thus UNMIK was acting outside the
legal parameters it itself established. While Regulation 1999/1 did indeed
give the SRSG full executive, legislative and judicial powers, UNMIK’s
mandate neither permitted the SRSG to act outside the law nor placed
the SRSG above the law. Security Council Resolution 1244 (1999) cer-
tainly mandated UNMIK to maintain law and order.182 But while the ex-
ecutive detentions were arguably important for the maintenance of law
and order, and while it is conceivable that international judges could not
 KOSOVO 75

have been given crucial evidence against the detainees for security rea-
sons, the orders not only violated Fuller’s principle of congruence but
also undermined UNMIK’s judicial reform efforts.
One of the greatest challenges in reforming judiciaries is to elimi-
nate the executive’s influence over the judiciary.183 In 2001 US Presi-
dent George W. Bush received widespread criticism for issuing executive
detention orders for foreign nationals,184 criticism which alleged that
these executive orders were a breach of the ICCPR. At the same time,
the organization which has allegedly stood for the protection of human
rights for over 50 years – the United Nations – was encroaching on judi-
cial independence in Kosovo, also issuing executive detention orders for
security reasons. While Kosovo’s security situation may indeed have re-
quired that such executive orders be issued, in demonstrating a model
of governance where the executive interferes with the judiciary and acts
extra-judicially, the United Nations failed to lead by example. It cannot
be argued that the executive detention orders represent a total violation
of Fuller’s principle of congruence – on the whole, UNMIK administered
the laws as they had been conceived; however, they show that UNMIK
placed more importance on containing the security situation than on as-
piring to be in line with this legal principle.
UNMIK’s final failure, in this case of aspiration to be in line with one
of the principles of legality, relates to Fuller’s principle that one should
not introduce such frequent changes in the rules that the subjects cannot
orient their action by them. In The Morality of Law, Fuller tells the story
of King Rex, a hypothetical and benevolent king who passes legal codes,
withdraws them for revision, passes them again, amends them, withdraws
them again and passes them in new form, time and time again. Fuller
uses his story as a starting point to his discussion of the ways in which
“the attempt to create and maintain a system of legal rules may mis-
carry”.185 While the story is clearly hyperbole, UNMIK’s experience was
not wholly dissimilar. This particularly refers to the complete change of
the applicable law – from the law as it had been in March 1999 to the
revival of Kosovo’s 1989 legal code less than six months after the initial
promulgation of the applicable law.
It also refers to the frequency with which UNMIK regulations were
amended in the first six months of the operation: out of the 27 UN laws
passed from June to December 1999, five were amended. While not all of
these regulations were important in guiding a citizen’s actions, it remains
true that one in five laws passed during that period was altered, an indi-
cation of the ad hoc manner in which they were promulgated. And even
though the change in the applicable law enacted by Regulation 1999/24
does not by itself amount to what Fuller refers to as “frequent changes”,
since it was only one substantial change, it is possible to argue that this
76 UNITED NATIONS JUSTICE

change, along with the other amendments, shows that the UN’s approach
did not demonstrate an aspiration to be in line with Fuller’s principle.
We have seen thus far that there were problems with the clarity of the
applicable laws and their application in practice, that UNMIK’s activities
were frequently not in congruence with the law as UNMIK itself had es-
tablished it, that UNMIK enacted some contradictory legislation and that
there were some important changes in the legal code not too long after
it had been promulgated. The question is whether any of these violations
of Fuller’s principles of legality, or the failure to aspire to be in line with
them, can be attributed to the UN’s approach to legal and judicial re-
form. The following few paragraphs will demonstrate that particularly the
UN’s approach of basing the applicable laws on prior legal codes and its
pursuit of a complete human rights catalogue within the legal framework
from the beginning of the mission are the two elements most responsible
for these violations.
First, it can be shown that the problems of clarity and of having to in-
troduce a major change to the legal code are directly related to the UN’s
notion of the need to base the transitional legal framework on a previ-
ously applicable legal code. In 2000 the Brahimi Report attributed the
problem of finding a suitable applicable law to the fact that “the law and
legal systems prevailing prior to the conflict were questioned or rejected
by key groups considered to be the victims of the conflicts”.186 The UN’s
early strategy to base the legal framework on previously applicable laws
led to the hasty decision to implement the law as it had been just before
NATO’s intervention, and to the failure to realize that while previously
applicable legal codes may be acceptable, not just any such code will in
fact be accepted. Essentially, UNMIK’s legal advisers did not recognize
the potential legal and political fall-out that would follow the adoption
of the FRY’s laws. Some UN officials at first regarded the Albanian
judges’ rejection of the legal framework as “total nonsense”, but later
recognized that this was a “politically uninformed position” and that
they had “blinders and did not understand the political problems”.187 An
approach which allowed for consultations with local jurists on the ap-
plicable law early on might indeed have prevented the eventual change
of the legal code six months into the mission.
Furthermore, basing the law on previously applicable laws, in combi-
nation with the UN’s perceived need to implement a complete human
rights catalogue from the beginning of the mission, led to the problems
of clarity. As we saw, the eventual need to return to Kosovo’s 1989 legal
code left many gaps in the law, which had to be filled with FRY and Ser-
bian laws, and the courts also had to adhere to international human rights
standards; however, for the first six months it was unclear which interna-
tional standards were meant. Even when this matter was clarified through
Regulation 1999/24, the question of the hierarchy of the laws remained
 KOSOVO 77

unclear until UNMIK created the new constitutional framework in 2001.

The adoption of a number of legal codes and human rights instruments,
and the consequent inability of jurists to be clear on the applicable law,
demonstrates a failure to achieve understandable rules. Had the United
Nations implemented, for instance, a generic criminal and criminal pro-
cedure code which could have incorporated human rights legislation, this
problem might have been averted, as the Brahimi Report suggested.188
UNMIK’s enactment of contradictory legislation and its failure to ad-
minister the rules as announced can be attributed directly to its approach
of implementing a complete catalogue of human rights early on. When
KFOR and UNMIK arrived in Kosovo they faced an unstable security
situation which constituted a public emergency; some academics later
suggested that the implementation of martial law at the beginning of
the mission might have been an appropriate course of action.189 Through
Regulation 1999/24 UNMIK enacted the ICCPR, which permits deroga-
tion from certain rights in times of public emergencies.190 But in pushing
for the implementation of a full catalogue of human rights, and in partic-
ular through the inclusion as part of the legal framework of the ECHR,
which does not have similarly liberal clauses permitting derogation from
key rights in times of public emergency, the United Nations closed the
legal door on the possibility of derogating from such rights without vio-
lating the enacted standards or creating contradictory legislation.
Importantly, the ICCPR lists the articles from which no derogation
can be made, even in times of public emergency: Article 9, which deals
with the matters of arbitrary arrests and detentions, habeas corpus provi-
sions and the matter of pre-trial detention, is not one of them.191 Had
the United Nations enacted only the ICCPR, and made it clear that the
security situation in Kosovo did constitute a national emergency and
therefore certain rights provided under the convention had to be dero-
gated, then the matter of preventive or executive detentions, as well as
the problem of the extension of the pre-trial detention periods, would not
have constituted a violation of the principle of congruence between rules
as announced and as administered, or the requirement for legislation
to be non-contradictory, since such activities and regulations would have
fitted within the legal parameters of permissible derogation. However,
the UN’s approach of enacting as complete a catalogue of human rights
as possible, and especially its enactment of the ECHR, led to the viola-
tions discussed above.

Compliance with basic judicial norms

The focus of this subsection is the question of whether any violation of

the 10 judicial norms192 can be attributed to any of the five elements of
the UN’s approach. It will first outline how some of these norms were
78 UNITED NATIONS JUSTICE

breached in Kosovo, and will then argue that it was particularly the UN’s
strategy of involving local actors in the judicial process from the begin-
ning of the mission, and its insistence on pursuing prosecutions for past
atrocities, which can be linked to many of the violations.
Perhaps the biggest problem for UNMIK’s fledgling judiciary before
the introduction of international judges and prosecutors was a lack of
judicial independence and impartiality. Most of the Albanian judges and
prosecutors who were initially employed within the judiciary had not
practised law since 1989, a time when judicial independence was not
respected in Yugoslavia.193 The SRSG’s legal adviser, Hansjoerg Stroh-
meyer, saw the problem as follows:

In a society that had never before experienced respect for the rule of law, and
in which the law was widely perceived as yet another instrument for wielding
authority and control over the individual, the meaning of independence and
impartiality of the individual had to be imparted gradually.194

Furthermore, the security situation was such that it was easy for rogue
elements within the society to exert great pressure on the judiciary, as
reported by Amnesty International early in 2000:

unacceptable pressure, in the form of threat, intimidation and even violent at-
tacks, is being exerted on some members of the judiciary by extremist elements
of ethnic Albanian society. This pressure may be affecting the ability of some
judges to take decisions impartially and independently based on legal, rather
than political, considerations.195

By December 1999 UNMIK had recognized that it would need to in-

troduce IJPs in order to restore some semblance of judicial independ-
ence and impartiality. However, despite the introduction of IJPs, UNMIK
failed to achieve this goal: the majority voting system in the judicial sys-
tem, where panels of either three or five judges presided over a case, al-
lowed for the possibility that the local judges would be able to outvote
an international judge.196 Thus the influence of the international judges
over cases was fairly restricted.197 The OSCE’s assessment of this initia-
tive was essentially that “the distribution and role of international judges
and public prosecutors [were] still insufficient to properly address con-
cerns relating to objective impartiality, or to remedy cases involving ac-
tual bias”.198
Furthermore, this intended remedy for the problem of judicial bias and
independence triggered a further violation of a judicial norm, namely the
requirement that justice be delivered in the same manner across differ-
ent judicial bodies: essentially, “the manner and timing of appointment
and the ad hoc composition of the judging panels . . . resulted in the un-
equal treatment of defendants before the courts in cases of a similar na-
 KOSOVO 79

ture of seriousness”.199 The problem was that the panels before which
such defendants stood had a varying composition – some with IJPs and
others without.200 Inevitably, the “limited and sporadic”201 allocation of
IJPs to such cases led to situations where they were dealt with unequally.
Moreover, while the Ombudsperson Institution was in a position to and
did issue guidance on the relative compatibility of laws with international
standards, such guidance could not be treated as binding and could not
be applied uniformly by all courts. The lack of adequate institutional sup-
port made the task of judges unfamiliar with human rights law more dif-
ficult, and also created a judicial system whereby human rights law was
not applied uniformly, which made it consequently unfair.202
It was not until UNMIK passed Regulation 2000/64 in December 2000,
and the SRSG acquired the ability to introduce a majority of interna-
tional judges to any case, to assign an international prosecutor to a trial
or to move the location of a trial, that the problems of judicial bias and
impartiality, as well as the consistent delivery of justice, were alleviated.
It is thus not difficult to see how the UN’s initial approach of choosing
to employ only local jurists directly led to the violation of three key judi-
cial principles for the first year and a half of the mission. While it should
have been fairly easy to foresee that the tense security situation, ethnic
bias and outside pressures influencing the decisions of a majority Alba-
nian judiciary might lead to these problems, the UN’s approach, and the
initial attempt to fix the resulting judicial problems, led not only to the
establishment of a dysfunctional judiciary, but also to a loss of UNMIK’s
confidence in local jurists,203 which was detrimental for the UN’s overall
judicial reform efforts.
The decision to employ only local jurists also led to the breach of a
further judicial norm, namely the need to hear cases within a reason-
able amount of time. As the initial task of establishing order and security
on the ground was left to the military, KFOR detained many suspected
criminals soon after its arrival; this inevitably created a large number
of cases. However, as the judicial system was not fully operational in
UNMIK’s first few weeks, this resulted in a substantial backlog of cases
awaiting trial.204 But the task of clearing this backlog was complicated
by the lack of professionalism of the jurists hired and the pressure under
which they were put, leading to the aforementioned judicial bias and
lack of independence; this was the case because any convictions obtained
under these conditions had to be regarded as questionable.205 When IJPs
were eventually introduced, this was not only done in order to remedy the
problems of judicial bias and lack of independence, but, importantly, to
help clear the accumulated backlog of cases.206 Thus it is evident that the
strategy of pushing for extensive local participation in the judicial pro-
cess early on was partly responsible for this backlog; the implication was
not only that courts would be unable to hear cases within a reasonable
80 UNITED NATIONS JUSTICE

amount of time, but that ordinary citizens would be unable to seek re-
dress for crimes committed against their property or person through the
judiciary within a reasonable amount of time, thereby increasing the like-
lihood of reprisal violence.
The problem of the large backlog of cases was further exacerbated
by UNMIK’s decision to pursue war and ethnic crimes from the early
stages of the mission. When UNMIK realized that in permitting trials for
war crimes, genocide and various other serious breaches of human rights
to continue within a biased judicial system, it would be facilitating and
complicit in serious breaches of justice, it decided to establish the Kosovo
War and Ethnic Crimes Court. Once it became clear that KWECC would
not be created, and UNMIK dropped the proposal for its establishment
in August 2000, it chose instead to pursue such high-profile trials within
the regular court system. UNMIK persuaded itself that the presence of
IJPs made the establishment of KWECC obsolete,207 as mentioned, and
that IJPs working in regular courts were in a position to do the same
work that KWECC would have done.
But the decision to try war and ethnic crimes within the regular courts
ensured a continuing backlog of a large number of highly complex cases,
and also meant that many resources had to be devoted to them, to the
detriment of other criminal cases. By August 2003 there was a backlog
of 11,000 criminal cases in Kosovo, and, as one official put it, removing
war and ethnic crimes from UNMIK courts “would [have] allow[ed] the
system to get on with its work”, since so many resources were used on
such trials “to the exclusion of anything else that [Kosovo] need[ed] to
move forward”.208 Thus UNMIK’s wish to end impunity exacerbated the
backlog of criminal cases and came at the expense of the justice system’s
efficiency, and particularly the ability of courts to hear more low-profile
criminal cases within a reasonable amount of time.
The approach of addressing past atrocities from a mission’s beginning
was in itself not the problem: had KWECC been established, these dif-
ficulties would not have arisen. The problem resulted from UNMIK’s
view that addressing war and ethnic crimes early on was so important
as to burden with this task a fledgling judicial system which clearly did
not have the capacity to take on such cases.209 While it is indeed true
that impunity for past atrocities has the potential to undermine the peace
process, in that the different ethnic groups may find it more difficult to
come to terms with their past and thus focus on their common future,210
the prosecution of such crimes should not come at the expense of the ef-
fective delivery of justice for regular crimes within a new judiciary. If try-
ing such crimes within the regular judiciary presents a threat to effective
delivery of justice, then alternative methods for addressing past atrocities
have to be considered.
 KOSOVO 81

The final violation of a judicial norm to result from UNMIK’s deci-

sion to pursue local participation in the judicial process early on was the
failure to provide access to effective counsel. The applicable law clearly
made such access mandatory; however, access to effective counsel, par-
ticularly for Serb detainees in Mitrovica, was hampered by the inability
of their Serbian defence counsel to access relevant police files, even
after indictments had been issued.211 Failing to provide access to such
files “render[ed] entirely devoid of meaning the detainees’ right to
effective counsel and to ensure that the decision to continue detention is
properly reached”.212 The detainees’ ethnicity and that of their defence
counsel was clearly the reason for the failure of the Albanian judges pre-
siding over the hearings to ensure access to files; thus the employment of
Albanian judges early on, without adequate training in procedural stand-
ards that are in accordance with human rights, was the principal reason
why access to effective counsel was denied.

The incorporation of human rights principles as part of the legal

framework

Given that one of the five elements of the UN’s approach to legal and
judicial reform was its effort to include in the legal framework as com-
plete a catalogue of human rights as possible, the question of whether
any of these five elements led to a failure of UNMIK to incorporate hu-
man rights principles as part of the legal codes may appear odd. How-
ever, it is important to make the distinction between the UN’s pursuit
of this goal as part of its overall strategy in legal and judicial reform and
its actual success in achieving the goal. It is possible to conceive of a sce-
nario where the pursuit of this goal was in itself responsible for the fail-
ure of its achievement. And thus the question is not irrelevant. However,
none of the five elements led to UNMIK’s failure to incorporate the 10
basic human rights principles.213 UNMIK’s establishment of the Con-
stitutional Framework for Provisional Self-Government did eventually
solidify the place that human rights have in Kosovo’s legal framework.
But the incorporation of a full catalogue of human rights as part of the
legal framework early on did in itself lead to a host of violations of legal
principles and judicial norms, as discussed in the two preceding sections.

The legal and judicial framework and its acceptability within the
community

A legal system cannot be deemed to be acceptable within a soci-

ety if there is either major public opposition or major opposition from
within the legal community to that system, if such opposition leads to
82 UNITED NATIONS JUSTICE

substantial changes to the legal framework or judicial structure, or if

there is a major competing parallel legal or judicial framework.214 This
subsection answers the question of whether any of the five elements of
the UN’s approach led to any of the factors which indicate that the legal
system was not acceptable. In essence, it can be shown that virtually all
these factors did in fact occur, and were in part triggered by some ele-
ments of the UN’s approach.
First, UNMIK’s decision to apply previously applicable laws resulted
in the general population’s unhappiness with and jurists’ rejection of the
legal framework. UNMIK’s assumption about the timing and content of
legal reforms led it to adopt the prior legal codes without allowing time
for consultations on the matter, and it failed to foresee the problems this
decision would create. Basing the legal framework on prior legal codes
was in and of itself not the problem; the failure to allow sufficient time
for consultations on an acceptable legal framework, perhaps filling the
legal vacuum with a temporary measure in the meantime, created a situ-
ation which not only led to opposition to the UN’s choice of law, but also
to a substantial change of that law.
Furthermore, UNMIK’s decision to insist on local participation in the
judicial process from the beginning of the mission was partly responsible
for the extent of the utilization of the parallel court structure operating
in the territory. It should be firstly stressed that the UN’s approach to
legal and judicial reform cannot be blamed for the establishment of these
parallel courts. Soon after the conflict ended, Kosovo Serbs established
and ran, with substantial support from Belgrade, a parallel court system
in northern Kosovo.215 The existence of these courts was part of the pol-
itical struggle between Belgrade and the United Nations regarding the
territory of Kosovo,216 and can also be attributed to the unwillingness of
Kosovo Serbs to cooperate with and recognize the UNMIK structures.
However, in 2004 “a direct correlation was discovered between access
to justice and the functioning of the parallel courts. In the absence of
access to justice people simply used whatever was available to them.”217
The problem of access related to physical access to a functioning court,
but also to the fact that minorities felt the courts were not accessible to
them due to the perceived judicial bias against them. In a hostile environ-
ment, and with structures that were not impartial, minority groups felt
that their interests would be served better by parallel structures, and this
included parallel courts. Some Serbs would have used the parallel courts
out of principle and loyalty to Serbia; however, the extent of the early
use of such parallel courts was certainly affected by the employment of
primarily Albanian judges and prosecutors within the judicial system.
The examples above indicate that instead of devising a method which
made the legal system appealing and acceptable in the society, the UN’s
 KOSOVO 83

approach initially prevented the legal system from taking root in that
society.

Legal and judicial reform and its security-related implications

The final set of questions to be answered in relation to the UN’s reform

efforts is whether any aspect of its approach caused fighting to resume,
whether it exacerbated any pre-existing tensions which previously led to
violence and whether it created new conditions which had the potential
to spark a resurgence of fighting.
Various practitioners and academics attribute the violence in Mitrovica
in 2000 to the failures of the judicial reform efforts, one observer noting
that “local frustration with the failure of the judicial process contributed
to increasing ethnic violence”.218 The failures referred to are the lack of
fairness, competence and sensitivity to human rights and the long pre-
trial detention periods. All of these can indeed be linked to the UN’s
strategy on local participation in the judicial process. In the immediate
post-conflict environment, where most of the Serbs who had served in
the judiciary had fled, UNMIK’s decision to rely on local judges and
prosecutors who had not practised law for over a decade, and who were
predominantly Albanian, introduced an element of judicial bias into the
system, created a judiciary lacking independence as a result of intimi-
dation and corruption, and established a system unable to handle the
mounting caseload, resulting in long detention periods. The fact that vio-
lence ensued as a consequence of these failings is unsurprising.

Conclusion

Rather than aiding the goal of establishing a sustainable legal system, the
UN’s approach to legal and judicial reform essentially detracted from it.
Basing the law on a previously applicable legal code from the beginning
of the mission led to the eventual need to change the legal framework,
since this decision created no opportunity to consult with local actors on
the choice of law. The subsequent change to the legal code applicable in
Kosovo in 1989 and the consequent need to fill legal gaps with laws from
other legal codes, i.e. from the FRY and Serbia, led to the establishment
of a confusing legal regime.
The decision to make human rights standards broadly applicable from
the very beginning of the mission also exacerbated the problem of clar-
ity: it was not clear for the first six months what instruments applied. But
even once the applicable instruments were specified, the relationship
between them and the other legal codes was still unclear, particularly in
84 UNITED NATIONS JUSTICE

terms of the legal hierarchy. Thus the problem was not that human rights
instruments applied, but that they applied in a manner which resulted in
an obscure system of rules, and at a time when there was no institution or
mechanism in place which could determine how such laws would apply
or their relationship to other laws.
What detracted perhaps even more from the goal of establishing a sus-
tainable legal system was the decision to apply a full catalogue of hu-
man rights at a time when the security situation was still unstable. Given
the tensions between the ethnic groups and the sporadic outbreaks of
violence, UNMIK felt forced to issue regulations which would allow it
to address any situation that had the potential to destabilize the fragile
peace. However, some of these regulations contravened the human rights
legislation UNMIK had enacted, and their promulgation thus amounted
to the enactment of contradictory legislation. Similarly, in order to ad-
dress security threats and curb continuing impunity for past atrocities,
the SRSG chose to detain certain individuals under executive orders.
But since there was no UNMIK law that legalized such orders, they
amounted to official deviations from the law.
Human rights should certainly apply in a post-conflict environment,
and the United Nations needs to work towards the implementation of a
full catalogue of human rights. However, the case of Kosovo demonstrates
that the decision to implement an extensive human rights catalogue from
the beginning of the mission led UNMIK to violate fundamental legal
principles. The initial implementation of a more limited catalogue of hu-
man rights, which would have allowed for derogation from certain human
rights principles, would have prevented such violations from occurring.
The UN’s approach of involving local actors in the judicial process
from the beginning of the mission led to the establishment of a judiciary
that was initially neither impartial nor independent. Some Albanian judg-
es were biased; but even when judges wanted to remain impartial, the sit-
uation was such that external actors could easily influence them through
threats and intimidation. This bias and lack of independence led to many
other problems: firstly, a large backlog of cases could not be heard within
a reasonable amount of time, in part because judgments from such trials
could not be regarded as fair. Judicial bias prevented defence counsel in
some cases from accessing police files, thereby violating defendants’ right
to effective counsel, and led to a more extensive utilization of the par-
allel court structure than might otherwise have occurred. The problems
also led to frustrations with the system, which boiled over into violence.
Far from resolving the problem of judicial bias and lack of independence,
UNMIK’s introduction of international judges and prosecutors to some
trials resulted initially in a failure to deliver justice consistently across
different judicial bodies.
 KOSOVO 85

Finally, the UN’s decision to pursue war and ethnic crimes through
the regular courts, in the belief that the initial introduction of some IJPs
would be sufficient to provide the required neutrality, not only exacer-
bated the problem of the backlog of cases, many of which could conse-
quently not be heard within a reasonable amount of time, but also slowed
down access to the courts for more low-profile criminal cases. Pursuing
an end to impunity from the beginning of the mission meant that high-
profile crimes were tried within a system that was unable to handle such
cases, to the detriment of the overall judicial process and the credibility
of the judicial system.
But why did the UN’s approach lead to the violations of legal princi-
ples and judicial norms, to local rejection of the legal framework and to
violence in some cases? The answer lies in the fact that rather than help-
ing to ease two of the key tensions at the heart of the UN’s mission, the
approach actually either aggravated these tensions or failed to strike the
right balance between them: the first set of tensions related to UNMIK’s
need to balance demands for order and security on the one hand and jus-
tice on the other hand; and the second set of tensions required UNMIK
to balance its mandate to govern the territory to a high standard with its
need to empower the local community through local participation in or
ownership of institutional processes, thereby creating locally sustainable
institutions.219
The lessons the United Nations learned from its experience in its mis-
sions in the early 1990s, and academics’ critiques of the UN’s approach to
peacebuilding, led the United Nations to strive for a more coherent and
integrated approach to peacebuilding. However, the UN’s interpretation
of how such a coherent and integrated approach translates into practice
when it comes to legal and judicial reform was unsuited to easing some
of the tensions that complicate such a challenging mission as Kosovo. The
United Nations took the view that not only would human rights apply in
the territory, but a full catalogue of human rights and all possible human
rights instruments would apply. Local jurists would not only be involved
in the judicial process as advisers, but they would be judges and prosecu-
tors. Previously applicable legal codes would not only serve as the inspi-
ration for the drafting of a new criminal and criminal procedure code, but
they would be the applicable law. And not only would the perpetrators
of past atrocities be pursued and impunity for their crimes ended, but in
the absence of a feasible international judicial mechanism, they would be
tried in local courts.
This approach not only confused ends with means, but also failed to
ease the tensions of the mission. The tension that exists between the need
on the one hand to establish security, and on the other to do so within a
framework of international standards, while aiming to instil human rights
86 UNITED NATIONS JUSTICE

values in the local community and seek justice for past atrocities, is famil-
iar to officials working in post-conflict operations and is discussed in the
literature.220 A key challenge for a peacebuilding mission is to resolve or
ease this tension as best as possible. However, rather than easing the ten-
sion, the decision to introduce a full catalogue of human rights from the
very beginning of the mission, while the security situation on the ground
was still unstable, aggravated it significantly. The implementation of a full
human rights catalogue made the task of establishing security, while not
deviating from such rights, that much more difficult. This decision failed
to strike the right balance between the need for order and the need for
justice and rights, and led to many of the legal and judicial reform fail-
ures. The initial introduction of a more limited human rights catalogue,
with the option gradually to accumulate more rights from which this
initial catalogue has derogated as the security situation improves, would
have been a better way to address the tension and would have prevented
many of the problems that occurred.
Furthermore, rather than easing the tension between the demand for
high international standards on the one hand and locally sustainable
institutions on the other, the decision to pursue war and ethnic crimes
through the regular justice system failed to address it adequately. In a
UN-governed war-torn territory, there is an expectation that the duty of
governance will be fulfilled to the highest standard, whether in relation
to healthcare, education, elections221 or the holding of war crimes trials.
However, carrying out such responsibilities should not hinder the estab-
lishment of sustainable institutions. The United Nations did consider the
establishment of a special court for war and ethnic crimes, which would
have allowed high-profile trials to be staged to the required standard, and
for the regular justice system to carry on with its work without the bur-
den of highly complex cases. But the decision to pursue war and ethnic
crimes through the local judicial system ensured that such trials were ini-
tially not held under conditions that fulfilled the expected international
standards; this practice also hindered access for more low-profile criminal
trials to the courts, significantly impeding the judicial process and thereby
also the establishment of a sustainable judicial system. Instead of pur-
suing war and ethnic crimes, as well as other complex trials, through the
regular courts, the United Nations would need to consider alternative
mechanisms which would better balance the needs for high standards and
sustainable institutions.
Moreover, the UN’s decision to rely on local jurists to fill judicial posts
did not ease the tension between the need for international governance
and the need for local empowerment. Simon Chesterman writes of this
tension inherent to post-conflict operations: “Local control of political
power is appropriately seen as the end of a transitional administration,
but if an international actor has assumed some or all governmental
 KOSOVO 87

power then local ownership is surely not the means.”222 While this refer-
ence is about political power, it also applies to ownership of various other
institutional processes. The United Nations has understood that, regarding
police reform, the international community would not only need to be in
control of the process, but would also have to staff the police service with
international police recruits and fill the higher ranks with international
officers, who would then be able to train and gradually take on more
local recruits.
However, while the United Nations held judicial powers in Kosovo and
was in charge of judicial administration, its decision to staff the judici-
ary with local jurists from the beginning of the mission only aggravated
the tension, especially once it became clear that international judges and
prosecutors would have to be introduced into the system: empowering
locals first and then removing their powers is certainly a wrong-headed
approach if one is to establish a sustainable judiciary. An approach more
similar to that adopted in reforming the police service, meaning the early
introduction of IJPs with a gradual increase in the number of local ju-
rists operating within the judicial system, would have prevented many of
the problems that did occur. Such an approach would also have created
enough time to retrain jurists and introduce them to the human rights
laws which they were unfamiliar with but had to apply, and would thus
have created a more solid foundation for a sustainable legal system.
Finally, UNMIK’s decision to designate the previously applicable laws
as the initial legal code also failed to strike the right balance between
international governance and local empowerment: in this instance, UN-
MIK needed to empower local actors by including them in the process of
selection of the applicable law. While it was indeed UNMIK’s prerogative
to select the laws, in doing so without allowing for consultations it over-
stepped its call of duty, and rather than helping to resolve a key tension
of its mission, its approach aggravated that tension. Local jurists eventu-
ally had to confront UNMIK and boycott the chosen legal regime so as
to obtain the legal framework they desired, a change which in itself led
to many legal problems. The initial application of a basic legal framework
which could be rooted in previously applicable legal codes, and which
along with martial law would have filled the legal vacuum, would have
created an opportunity for UNMIK to hold consultations with the local
legal community on an acceptable legal framework.223

Notes

1. Parts of the factual information on Kosovo presented in this section derive from my
prior research for my MPhil thesis; see Trenkov-Wermuth (2001).
2. For more on the history of Kosovo see Malcolm (1998); O’Neill (2002).
88 UNITED NATIONS JUSTICE

3. For a comprehensive review of Slobodan Milošević’s rise to power and the role which
Kosovo politics played in this see Silber and Little (1997).
4. Gompert (1996: 137).
5. Kosovo Liberation Army (KLA) is the translation of the group’s official name –
Ushtria Clirimtare E Kosoves (UCK).
6. AFSOUTH NATO Regional Headquarters Allied Forces Southern Europe (2003).
7. For a good overview of the Rambouillet Conference on Kosovo see Weller (1999).
8. “Military Technical Agreement Between the International Security Force (‘KFOR’)
and the Governments of the Federal Republic of Yugoslavia and the Republic of
Serbia” – see Treaties list.
9. For an introduction to UNMIK see Matheson (2001); Stahn (2001); Wilde (2001a,
2004); Yannis (2004).
10. UN Security Council (1999a), Article 10.
11. Ibid., Articles 10 and 11 authorize the UN’s SRSG to provide a transitional adminis-
tration, which will perform “basic civilian administrative functions where and as long
as required” (11.b) and maintain “law and order” (11.i).
12. UNMIK (1999c), section 1, para. 1.1 states that “All legislative and executive author-
ity with respect to Kosovo, including the administration of the judiciary, is vested in
UNMIK and is exercised by the Special Representative of the Secretary-General.”
13. Caplan (2005: 37) argues that this was the result of the various difficulties the interna-
tional community had in Bosnia, especially those emanating from the failure to have
various actors under one single administrative hierarchy.
14. Ibid., p. 94.
15. UNMIK (2000a).
16. Caplan (2005: 99).
17. Ibid.
18. UNMIK (2001c).
19. UNMIK (1999c), section 3.
20. Cerone and Baldwin (2004: 43 n. 9.)
21. Latin phrase meaning “that having been changed which had to be changed”, or more
commonly, “with the necessary changes”.
22. The exact wording of section 3 on the “Applicable Law in Kosovo” of UNMIK (1999c)
reads as follows: “The laws applicable in the territory of Kosovo prior to 24 March
1999 shall continue to apply in Kosovo insofar as they do not conflict with [inter-
national human rights] standards . . . the fulfilment of the mandate given to UNMIK
under the United Nations Security Council Resolution 1244 (1999), or the present or
any other regulation issued by UNMIK.”
23. Interview with UN official, April 2005.
24. Baskin (2002: 15); the relevant clause of Security Council Resolution 1244 (1999)
states that the Security Council is “Reaffirming the commitment of all Member States
to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and
the other States of the region, as set out in the Helsinki Final Act and annex 2”; em-
phasis added.
25. Strohmeyer (2001b: 58).
26. UNMIK (1999c); section 2 reads: “In exercising their functions, all persons undertaking
public duties or holding public office in Kosovo shall observe internationally recog-
nized human rights standards and shall not discriminate against any person on any
ground such as sex, race, colour, language, religion, political or other opinion, national,
ethnic, or social origin, association with a national community, property, birth or other
status.”
27. See, for instance, Marshall and Inglis (2003); see also OSCE Mission in Kosovo (1999a).
28. UNMIK (2001c); see Chapter 9, section 4 on “The Judicial System.”
 KOSOVO 89

29. OSCE Mission in Kosovo (1999a: 10).

30. UNMIK (1999a, 1999b). See also OSCE Mission in Kosovo (1999b).
31. Marshall and Inglis (2003: 101).
32. The accounts of this differ in the literature: while some claim that only three district
courts were initially established and the mobile units covered the remaining two areas
(Marshall and Inglis, ibid.), other accounts state that four district courts were initially
established (OSCE Mission in Kosovo, 1999a: 10).
33. See OSCE Mission in Kosovo (1999b: 2); the other two civil law judges were working
within the Pristina District Court.
34. UNMIK (1999e).
35. Ibid., section 1.1, which states that the “Court of Final Appeal . . . shall have the
powers of the Supreme Court which exercised jurisdiction in Kosovo, as regards
appeals against decisions of District Courts.”
36. Marshall and Inglis (2003: 101).
37. See UNMIK (2001c), section 9.4.4; the American Bar Association’s Central and East
European Law Initiative (ABA/CEELI, 2002: 2) specifies that there are 23 municipal
courts, five district courts, a commercial district court and the Supreme Court; it also
clarifies that there are 24 municipal courts of minor offences and the High Court for
Minor Offences; a special chamber operates within the Supreme Court and hears cases
on constitutional framework matters.
38. One good example of an emergency judicial mechanism is the Detainee Management
Unit (DMU) set up by INTERFET upon its arrival in East Timor; the DMU will be
discussed further in Chapter 4.
39. Cerone and Baldwin (2004: 48).
40. Betts, Carlson and Gisvold (2001: 375).
41. ICTY (1999).
42. Cerone and Baldwin (2004: 48–49).
43. Ibid., p. 49.
44. Dickinson (2003b: 1062).
45. This body was created by UNMIK (1999f), section 1, in order “to advise the Special-
Representative of the Secretary-General on the structure and administration of the
judiciary and the prosecution service in Kosovo”.
46. “The Justice System of Kosovo 2000”, UNMIK Administrative Department of Justice,
para. 36.
47. Conflict Security and Development Group (2003a: para. 156); on this see also Cerone
and Baldwin (2004: 49), who explain in a footnote that “Initial proposals for KWECC
envisioned granting the court subject matter jurisdiction over crimes under interna-
tional law, as well as serious inter-ethnic offences under domestic law.”
48. Cady and Booth (2004: 60).
49. Betts, Carlson and Grisvold (2001: 381).
50. UN Security Council (2000c: para. 60); see also UN Security Council (2000b: para.
111).
51. Baskin (2002: 19).
52. Interview with UNMIK official, August 2003.
53. Conflict Security and Development Group (2003a: para. 200).
54. UNMIK (2000e).
55. Cerone and Baldwin (2004: 49).
56. Baskin (2002: 19).
57. Cerone and Baldwin (2004: 49).
58. Baskin (2002: 20).
59. International Crisis Group (2002: 20); the introduction of international judges and
prosecutors is discussed later in this chapter.
90 UNITED NATIONS JUSTICE

60. Interview with UNMIK official, August 2003.

61. See UNMIK (2000e).
62. International Crisis Group (2002: 20); for a good introduction to the model of using
international judges and prosecutors in Kosovo see Hartmann (2003).
63. Strohmeyer (2001a: 119).
64. Cerone and Baldwin (2004: 48–49).
65. Ibid., p. 48.
66. Conflict Security and Development Group (2003a: para. 159).
67. UN Security Council (1999b: para. 68); cited here in Conflict Security and Develop-
ment Group (ibid.: para. 178).
68. Strohmeyer (2001b: 50).
69. Chesterman (2002a: 5).
70. UN official, cited here in Chesterman (ibid.).
71. On this see Conflict Security and Development Group (2003a: para. 193); Chesterman
(2004: 166).
72. Conflict Security and Development Group (ibid.: para. 195).
73. Ibid., para. 183.
74. UNMIK (1999a).
75. UNMIK (1999b); see Chesterman (2004: 167 n. 46).
76. UNMIK (1999e).
77. UNMIK (1999f); see sections 1 and 2.
78. Eight local and three international experts were appointed; see UNMIK (1999g). This
regulation was eventually repealed by UNMIK Regulation No. 2001/8 (6 April 2001),
which established a similar body, the Kosovo Judicial and Prosecutorial Council; this in
turn was repealed by UNMIK (2005), which established the third-generation council
of this type – the Kosovo Judicial Council.
79. OSCE Mission in Kosovo (2000c: 12); see also Cady and Booth (2004: 69).
80. OSCE Mission in Kosovo (ibid.).
81. Ibid.
82. Kaminski (1999: A12).
83. Baskin (2002: 14).
84. Ibid.
85. Ibid.
86. Ibid.
87. Ibid.
88. Ibid.
89. Ibid., pp. 14–15.
90. UNMIK (1999h); section 1.1(b) establishes the law in force in Kosovo on 22 March
1989 as the applicable law; UNMIK (1999i) repealed section 3 of UNMIK (1999c),
which had established the laws applicable immediately before 24 March 1999 as the
applicable law for Kosovo.
91. Cerone and Baldwin (2004: 43 n. 10.)
92. UNMIK (1999h), section 1.2; section 1.3 lists various international human rights instru-
ments which must be observed.
93. Ibid., section 1.4 stipulates that “In criminal proceedings, the defendant shall have the
benefit of the most favourable provision in the criminal laws which were in force in
Kosovo between 22 March 1989 and the date of the present regulation.”
94. UN Security Council (1999d: para. 56).
95. Cerone and Baldwin (2004: 44) explain the applicability of international criminal law:
“The Yugoslav Federal Criminal Code, which remained applicable through the promul-
gation of Regulation 1999/24, prescribes punishment for the crime of genocide, as
 KOSOVO 91

well as various war crimes. However, crimes against humanity, as that category of
crimes has come to be understood in international law, are not proscribed as such.”
96. Cerone and Baldwin (ibid.: 46) note that federal Yugoslav law was made applicable
through Regulation 1999/1, and remained applicable through Regulation 1999/24.
97. UNMIK (1999h), section 1.3; the specific human rights instruments are the Univer-
sal Declaration of Human Rights, 10 December 1948; the European Convention for
the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, and
its Protocols; the Convention on the Elimination of All Forms of Racial Discrimina-
tion, 21 December 1965; the International Covenant on Civil and Political Rights, 16
December 1966; the International Covenant on Economic, Social and Cultural Rights,
16 December 1966; the Convention on Elimination of All Forms of Discrimination
against Women, 17 December 1979; the Convention against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment, 17 December 1984; and the Inter-
national Convention on the Rights of the Child, 20 December 1989.
98. Cerone and Baldwin (2004: 46).
99. Ibid.
100. OSCE Mission In Kosovo (2000c: 16).
101. Ibid.
102. Ibid.
103. Cerone and Baldwin (2004: 46 n. 34). The announcement is mentioned in a report from
the OSCE Legal System Monitoring Section.
104. UN Security Council (1999a: para. 11).
105. UN Security Council (1999b: para. 38).
106. Cerone and Baldwin (2004: 47).
107. See UNMIK (2001c), Chapter 3.
108. Cerone and Baldwin (2004: 47).
109. Ibid., p. 44; note, however, that the Yugoslav Federal Criminal Code remained applic-
able through UNMIK (1999c, 1999h).
110. “Convention on the Prevention and Punishment of the Crime of Genocide” – see
Treaties list.
111. For instance, it includes “forcible dislocation of the population” in its list of genocidal
acts; see Cerone and Baldwin (2004: 44).
112. Ibid.
113. Ibid., see n. 14.
114. See UNMIK (2001a), section 1.
115. Cerone and Balwin (2004: 47).
116. Cady and Booth (2004: 69).
117. Ibid., pp. 69–70.
118. The promulgation of UNMIK (2001f) brought the rights of arrested persons in line
with international human rights standards. Also, section 1.5 of UNMIK (1999h) abol-
ished the death penalty, and a few other regulations brought the criminal laws more in
line with legal developments since the late 1980s: for instance, UNMIK (2001b) pro-
hibited the trafficking of persons in Kosovo, and UNMIK (2003a) amended the law on
criminal offences involving sexual violence.
119. Cady and Booth (2004: 70).
120. UNMIK (2003b, 2003c).
121. Cady and Booth (2004: 70).
122. Ibid., p. 60.
123. Dickinson (2003a: 297).
124. Cerone and Baldwin (2004: 49).
125. UNMIK (2000b).
92 UNITED NATIONS JUSTICE

126. Cerone and Baldwin (2004: 49).

127. See UNMIK (2000c).
128. Cady and Booth (2004: 61).
129. Chesterman (2004: 167).
130. UN Security Council (2000c: para. 47).
131. Cady and Booth (2004: 60); see UNMIK (2000d).
132. UNMIK (2000f).
133. The applicable law on criminal procedure prescribed that in trials of serious offences, a
case would have to be heard by five judges – two professional and three lay judges; see
Cady and Booth (2004: 61).
134. UNMIK (2000f), sections 1 and 2.
135. UNMIK (2000b, 2000d) allowed the assignment of (an) international judge(s) to a
panel, but the composition of that panel was still such that the international judge(s)
could be outvoted.
136. Strohmeyer (2001b: 48); Hansjoerg Strohmeyer served as the SRSG’s legal adviser
in Kosovo between June and August 1999. On this see also generally Human Rights
Watch (1999).
137. Strohmeyer (ibid.: 49).
138. UNMIK (1999d); section 1.1 states that the authorities have the right to “temporar-
ily remove a person from a location, or prevent access by a person to a location . . . to
prevent a threat to public peace and order”; section 2.1 gave the authorities the right
to “temporarily detain a person, if this is necessary . . . in light of the prevailing circum-
stances on the scene, to remove a person from a location, or to prevent access to a
location”.
139. Chesterman (2004: 167).
140. Ibid.; see also O’Neill (2002: 86).
141. Caplan (2005: 64).
142. Ibid.
143. Friman (2004: 336); on this issue see Ombudsperson Institution in Kosovo (2001a);
OSCE Mission in Kosovo (2002); Amnesty International (2002c); Human Rights
Watch (2002a: 386); Caplan (2005: 65); Chesterman (2004: 168).
144. UNMIK (2001d), cited here in Caplan (ibid.: 64–65).
145. See UNMIK (2001e); see also Chesterman (2004: 168).
146. Caplan (2005: 65).
147. In addition to the establishment of the Detention Review Commission in August
2001, Friman (2004: 336) highlights that KFOR issued a directive setting out some
key policies and procedures aimed at improving the rights of detainees (COMKFOR
Detention Directive 42, 9 October 2001). Amnesty International (2004: section 2.1.1),
however, rejected this directive as still failing to live up to international standards.
148. For instance, the replacement of the Advisory Judicial Commission first with the
Kosovo Judicial and Prosecutorial Council in 2001, which was then transformed into
the Kosovo Judicial Council in 2005. Also, a Kosovo Special Prosecutor’s Office was
established in 2006.
149. However, the SRSG was in a position to veto such law.
150. See Chapter 2, p. 33.
151. See Chapter 2, p. 45.
152. See Chapter 2, pp. 35–37.
153. Fuller (1969: 63); emphasis added.
154. Ibid., p. 38.
155. OSCE Mission in Kosovo (2000c: 15).
156. Baskin (2002: 15).
157. OSCE Mission in Kosovo (2000c: 15–16).
 KOSOVO 93

158. OSCE Mission in Kosovo (2001a: 12).

159. Ibid.
160. Fuller (1969: 63).
161. Ibid., p. 64.
162. Ibid., p. 39.
163. See OSCE Mission in Kosovo (2001b: 15); the OSCE reported in October 2001 that
“any confusion over the application of [human rights] standards should finally be over.
The Constitutional Framework states (Article 3.1) that . . . human rights laws . . . are
directly applicable in Kosovo . . . Consequently, it is now clear that every institution,
administrative body, organisation or ‘presence’ in Kosovo . . . is bound by the require-
ments of international human rights law.”
164. See UNMIK (1999d), sections 1 and 2.
165. OSCE Mission in Kosovo (2000c: 17).
166. See UNMIK (1999h), section 1.3(b).
167. UNMIK (1999j).
168. OSCE Mission in Kosovo (2000a: 2–3).
169. Ibid.
170. Amnesty International (2000a: 8); emphasis added.
171. Ibid., emphasis added.
172. This court was established under UNMIK (1999e).
173. Amnesty International (2000a: 8).
174. UNMIK (1999j).
175. Ombudsperson Institution in Kosovo (2001a: para. 13).
176. Amnesty International (2002c) made similar calls for the SRSG to stop the practice of
executive detentions.
177. Ombudsperson Institution in Kosovo (2001a: paras 17–25).
178. Fuller (1969: 81).
179. Ombudsperson Institution in Kosovo (2001a: para. 9).
180. UNMIK (2001e).
181. Ombudsperson Institution in Kosovo (2001b); Article 5(4) of the ECHR states that
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
182. See UN Security Council (1999a), section 11(i).
183. Mani (2002: 65).
184. See White House (2001).
185. Fuller (1969: 38–39).
186. UN General Assembly and Security Council (2000b: para. 79) (Brahimi Report).
187. UN legal officials, quoted here in Baskin (2002: 15).
188. UN General Assembly and Security Council (2000b: para. 81) (Brahimi Report).
189. See, for instance, Chesterman (2004: 168); on this point see also O’Neill (2002: 75);
Caplan (2005: 64).
190. Article 4.1, Part II of the ICCPR reads: “In time of public emergency which threatens
the life of the nation and the existence of which is officially proclaimed, the States
Parties to the present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin.”
191. See Article 4(2) of the ICCPR.
192. See Chapter 2, pp. 37–38.
193. International Crisis Group (2002: 5).
94 UNITED NATIONS JUSTICE

194. See Strohmeyer (2001b:. 55); cited here in International Crisis Group (ibid.).
195. See Amnesty International (2000a: 5), cited here in International Crisis Group (ibid.);
on this see also OSCE Mission in Kosovo (1999a).
196. International Crisis Group (ibid.).
197. OSCE Mission in Kosovo (2000b: 2).
198. Ibid., p. 71.
199. Ibid.
200. OSCE Mission in Kosovo (2001a: 76).
201. Ibid.
202. OSCE Mission in Kosovo (2000c: 16).
203. International Crisis Group (2002: 5).
204. Ibid., p. 3
205. Ibid., p. 5.
206. Ibid.
207. Ibid., p. 20.
208. Interview with former judge working as an international official in Kosovo, August
2003.
209. It should be noted, however, that while there clearly was a failure to hear cases within
a reasonable amount of time, no automatic failure to deliver judgments within a rea-
sonable time follows from this. Once a case did go to trial, the period between the
commencement of that trial and the delivery of a verdict was not unreasonable, espe-
cially given the complex nature of the cases.
210. International Crisis Group (2002: 27).
211. OSCE Mission in Kosovo (2000c: 8); internationally accepted standards require that
such access be given before an indictment hearing.
212. OSCE Mission in Kosovo (ibid.).
213. See Chapter 2, pp. 39–41.
214. See Chapter 2, pp. 41–42.
215. ABA/CEELI (2002).
216. OSCE Mission in Kosovo (2003: 16–23).
217. Vicovac (2004); Vicovac was the acting coordinator of the Judicial Integration Section
of UNMIK’s Department of Justice.
218. Dickinson (2003: 297); on this see also Cerone and Baldwin (2004: 49).
219. These tensions are frequently discussed in the literature: on the first tension see, for
instance, Mani (2002) Chapter 4; on the second see, for instance, Chesterman (2004:
5–6).
220. See, for instance, Mani (ibid.).
221. Chesterman (2004: 5).
222. Ibid.
223. As will be discussed in Chapter 4, the Australian-led security forces operating in East
Timor (INTERFET) implemented exactly such a code.
 95

4
The UN Transitional
Administration in East Timor

Background
The conflict in East Timor

The Democratic Republic of Timor-Leste, or East Timor as the territory

was previously known, became an independent state for the first time in
2002. In the sixteenth century Portugal established outposts on the island,
which comprised a number of small chiefdoms and princedoms. During
the Habsburg rule over Portugal, the Portuguese lost all these outposts
to the Dutch; however, by 1702 the Portuguese had colonized the whole
island and ruled it until the Dutch were officially given the western part
of the island through the Treaty of Lisbon in 1859. The eastern part of
the island remained under Portuguese rule until Indonesia, the successor
state to much of the Dutch East Indies, invaded the territory in 1975.1
In July 1975 the UN’s decolonization movement finally caught up with
East Timor: the Portuguese government passed a new law which pro-
vided for the establishment of a transitional government in East Timor,
and which envisaged Portugal’s complete withdrawal from the territory
by October 1978.2 However, Timorese parties held different views on the
political future of the colony – while some, such as the UDT, held that
the territory should continue its association with Portugal, others, such as
Fretilin, held that it ought to become independent immediately; impor-
tantly, one of the smaller parties, Apodeti, held that the territory should
be integrated into Indonesia and become an autonomous province of

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
96 UNITED NATIONS JUSTICE

that country.3 From mid-1975 the disagreements between the parties over
the future political status of the territory gradually evolved into a civil
war, and on 28 November Fretilin, which reportedly controlled most of
the territory, declared independence and the establishment of the Dem-
ocratic Republic of East Timor; two days later a coalition of the UDT
and Apodeti and a few other pro-Indonesian parties also declared the in-
dependence of the territory, but its integration with Indonesia.4
Even though Indonesia held that it had no territorial claims on East
Timor, the territory never having been part of the Dutch East Indies, it
launched an invasion of East Timor in December 1975 and engaged Fre-
tilin in battles which led to increasing Indonesian control over the territo-
ry. Meanwhile the pro-Indonesian parties established what they claimed
was East Timor’s provisional government, as well as a regional popular
assembly.5 In late May 1976 this assembly invited Indonesia to integrate
East Timor into its territory, and in July Indonesian President Suharto
formally integrated the territory as Indonesia’s twenty-seventh province,
arguing that by the act of that assembly the East Timorese had exercised
their right to self-determination and had gained their independence in
joining Indonesia.6 Between 1975 and 1982 the UN General Assembly
and Security Council passed various resolutions reaffirming the right of
the East Timorese to self-determination, and called upon Indonesia to
withdraw from East Timor;7 however, neither the General Assembly nor
the Security Council condemned the invasion as an act of aggression, nor
did the Security Council take any further steps in an effort to resolve this
matter until the late 1990s.8
The time of Indonesia’s occupation, between 1976 and 1999, when the
United Nations took over the administration of the territory, can be di-
vided into three periods: the first of these, 1975–1979, saw the death of
over 200,000 East Timorese, or about one-third of the population, as a
direct result of Indonesia’s occupation; the period between 1980 and 1989
saw both large-scale Indonesian military operations and the strengthen-
ing of East Timor’s resistance to Indonesia’s rule; and finally the period
between 1989 and 1999 saw the relaxation of various restrictions regard-
ing the accessibility of the territory to foreigners and increased interna-
tional media coverage of the conflict; however, the repression continued.9
The collapse of Suharto’s regime in 1998 was a turning point for East
Timor’s struggle for independence. The newly appointed President B. J.
Habibie stated in June 1998 that he was prepared to grant East Timor
a special status, potentially substantial autonomy within Indonesia, but
excluded the option of full independence at that stage.10 By January
1999 Habibie responded to international pressure and announced his in-
tentions to hold a referendum which would allow the East Timorese to
choose between autonomy within Indonesia or a transition to self-rule.11
 EAST TIMOR 97

And after nearly a quarter-century of negotiations, Portugal and Indone-

sia finally agreed in May 1999, under UN auspices, to ask the UN Sec-
retary-General to hold a popular consultation of the East Timorese to
determine which of the two options was preferred.12 While the agreement
provided for the UN’s organization of the referendum, and the UN Mis-
sion in East Timor (UNAMET) arrived in East Timor later that month to
prepare for the consultations, Indonesia managed to remain in control of
the responsibility for security arrangements. But although Indonesia did
agree that its police rather than its army would be in charge of provid-
ing security for the referendum, the army and the various pro-Indonesian
militias it supported went on numerous violent rampages against pro-
independence supporters prior to the elections, in an effort to intimidate
the population.13
Despite this Indonesian-sponsored campaign of violence, and the
fact that many people were internally displaced within East Timor, the
United Nations managed to register 450,000 voters, which far exceeded
its expectations.14 The eventual election turnout at the end of August
equally exceeded expectations, at 98.5 per cent, 78.5 per cent of whom
voted to reject Habibie’s offer of special autonomy in favour of outright
independence.15 When the results of the consultation were announced, vio-
lence erupted almost immediately, and what was an already violent situ-
ation escalated to new heights, with “widespread murders, kidnappings,
rape, property destruction, theft of homes and property and the burning
and destruction of military installations, offices and civilian residences”.16
The withdrawing Indonesian army and pro-Indonesian militia essen-
tially carried out a scorched earth campaign which saw the murder of
over 1,000 civilians, the destruction of over 70 per cent of East Timorese
infrastructure and the displacement of over three-quarters of the popula-
tion, or circa 600,000 people.17 Only the arrival of the International Force
for East Timor (INTERFET) on 20 September 1999, a UN-mandated
and Australian-led security force, saw the beginning of the end of this
campaign of violence, the return of some of the UNAMET staff, who had
been evacuated during the worst violence, and the start of a restoration
of law and order.18

UNTAET 19

On 25 October 1999 the UN Security Council passed Resolution 1272,

establishing UNTAET.20 In essence, the resolution mandated the mis-
sion with the administration of the territory, the provision of assistance
for “the development of civil and social services” and the support for
“capacity-building for self-government”.21 UNTAET was to have a simi-
lar type of authority as UNMIK: it was given the power to “exercise
98 UNITED NATIONS JUSTICE

all legislative and executive authority, including the administration of

justice”.22 The mission’s initial attention focused on addressing the hu-
manitarian disaster and facilitating the return of refugees, as well as on
the provision of vital services, the restoration of law and order through
the reconstruction of the judiciary and law-enforcement mechanisms, the
recruitment of civil servants, the revival of the economy and the recon-
struction of key infrastructure in the hope that local governance and ad-
ministration could be restored.23
While there were many similarities between UNMIK and UNTAET,
the United Nations did not implement the same governance structure for
its mission in East Timor as it had done in Kosovo. As with UNMIK, the
SRSG or transitional administrator (TA) was “responsible for all aspects
of the United Nations work in East Timor and [had] the power to en-
act new laws and regulations and to amend, suspend or repeal existing
ones”.24 However, unlike in Kosovo, where the SRSG was the head of an
operation but working alongside the OSCE, the UNHCR and the Euro-
pean Union, in East Timor the TA was solely in charge of all administra-
tive responsibilities and there were no other lead agencies involved in the
management of the territory. UNTAET also had a pillar structure, with
three main pillars at the beginning of the mission: governance and pub-
lic administration, humanitarian assistance and emergency rehabilitation,
and the military. But while in Kosovo KFOR was not under the UN’s
command structure, in East Timor the military component was under the
direct authority of the TA.
UNTAET decided early on to involve local actors in the decision-
making process, as UNMIK had done with the Kosovo Transitional
Council. With Regulation 1999/2 the TA set up the National Consulta-
tive Council (NCC), which was initially composed of 15 members, four
of whom were representing UNTAET.25 While this council was estab-
lished to provide advice to the TA, who was serving as its chairman, the
body was also meant to confer legitimacy upon the rule of the TA.26 In
August 2000 the United Nations transformed its governance and public
administration pillar into the East Timor Transitional Administration, to
involve more local actors in the governance of the territory and enable
these individuals eventually to replace the international staff working in
East Timor.27 In the first instance a transitional cabinet was established,
which was initially composed of four international and four local officials,
but which was later expanded to five local actors when the foreign af-
fairs portfolio was handed to a local.28 This co-administration model was
somewhat similar to the dual-desk model in Kosovo, in that it gave local
individuals in both Kosovo and East Timor the opportunity to gain pro-
fessional experience under the supervision of internationals.29 Important-
ly, a national council was also established; this was exclusively Timorese,
 EAST TIMOR 99

and included representatives of all the different interest groups in the

territory.30 This structure, while not necessarily as well functioning and
effective as may have been initially hoped, remained in place until East
Timor became an independent nation in 2002.31
After UNTAET came to an end on 20 May 2002, the Security Council
immediately replaced it with the UN Mission of Support in East Timor
(UNMISET), mandated to assist all administrative structures which are
essential to the stability and viability of a new state.32

The five elements in practice

As in the previous chapter on Kosovo, it is important to demonstrate the

validity of the claim that there were five key elements at the heart of the
UN’s approach to legal and judicial reform, and to show how they af-
fected UN practice in East Timor. To this end, this section is divided into
five subsections: the first discusses the UN’s choice of applicable law for
East Timor; the second considers the incorporation of human rights into
the legal framework; the third subsection discusses the establishment of
a regular court structure; the fourth discusses the establishment of the
special panels for serious crimes; and finally the fifth subsection describes
how the United Nations tried to involve local actors in the judicial pro-
cess from the beginning of the mission.

Concordance of the applicable law with prior legal codes from

mission’s beginning

As we saw, SC Resolution 1272 gave UNTAET the mandate for the ad-
ministration of justice, as well as full executive and legislative powers in
the territory; thus the SRSG was at liberty to select the applicable law for
East Timor. UNTAET’s chosen solution was very similar to the course
of action adopted a few months earlier in Kosovo: UNTAET’s Regula-
tion 1999/1 codified the previously applicable law as the legal framework.
However, this regulation was different to UNMIK’s first regulation in
one important respect: while UNMIK Regulation 1999/1 had stated
that “the laws applicable” in Kosovo immediately prior to the commence-
ment of the NATO bombardments would “continue to apply”, UNTAET’s
Regulation 1999/1 stated that the “laws applied” immediately prior to
the establishment of UNTAET “shall apply”.33 Stating that the “laws
applied” rather than the “applicable laws” would apply was an attempt
to address the political sensitivities of the population vis-à-vis the Indo-
nesians, whom many locals and the majority of the international commu-
nity regarded as occupiers and not as the lawful rulers of the territory,34
100 UNITED NATIONS JUSTICE

and thus avoid the retroactive legitimization of Indonesia’s occupation of

East Timor.35
The Indonesian laws were to apply mutatis mutandis36 as follows. They
would apply firstly only in so far as they did not conflict with interna-
tionally recognized human rights standards; secondly, as long as they did
not conflict with the mandate given to the missions under the respective
Security Council resolutions; and thirdly, they were not to conflict with
any UN regulations or directives issued by the TA.37 The wording of the
regulation does show that the United Nations aimed to prevent any pos-
sible contradictions in the legislation that could arise from its attempt to
combine previously applicable laws with internationally accepted human
rights standards and directives issued from its own administrators. How-
ever, as will become clear in this chapter, the UN’s failure to specify the
Indonesian legal code as applicable caused not only a problem of clarity
in the law but also a political crisis in the territory.
In this respect, Simon Chesterman’s assessment that the choice of law
was “uncontroversial”38 is inaccurate: while there may not have been the
same type of popular and vocal opposition to Indonesian law as there
was to Serb law in Kosovo, the question of whether or not Indonesian
law actually ever applied or should apply in East Timor became a point
of contention. There was disagreement as to whether the laws of Indone-
sia legally applied prior to 25 October 1999, or those of the old colonial
power – Portugal. As the discussion below will demonstrate, this point
ended up pitting one court against another, thus temporarily splitting the
judiciary, and precipitated one of the first major political and judicial cri-
ses in Timor-Leste. Importantly, it was the UN’s failure to give an oppor-
tunity to local actors to debate this contentious matter prior to deciding
upon an applicable law which precipitated this political crisis.

Completeness of human rights catalogue from mission’s beginning

The United Nations incorporated a human rights regime into the Timor-
ese legal framework in much the same way as it had done in Kosovo. The
laws used previously would apply only to the extent that they did not
conflict with any UN regulations or directives, or with international hu-
man rights standards and principles. However, unlike in Kosovo, in East
Timor UNTAET Regulation 1999/1 specified which particular human
rights instruments would need to be observed in the territory.39 It should
be noted, however, that the regulation did not in fact make internation-
al treaties directly applicable in the territory;40 it just provided that all
persons holding public office must adhere to these instruments in carry-
ing out their official duties,41 and that the existing laws needed to be sub-
ject to certain human rights instruments.42 Interestingly, even though such
 EAST TIMOR 101

instruments were not directly applicable in East Timor, they would still
determine the relative applicability of the Indonesian legal codes. Fur-
thermore, Regulation 1999/1 also abolished capital punishment43 and a
set of specific laws from the Indonesian legal code, and their amendments
and administrative regulations, which were clearly in conflict with inter-
national human right standards.44

Reinstitution of a regular court system from mission’s beginning

As in Kosovo, the United Nations opted to establish a regular structure in

East Timor from the early stages of the mission. On 6 March 2000 the TA
promulgated Regulation 2000/11, establishing a judiciary that was com-
posed of eight district courts45 and one Court of Appeal.46 It is important
to note that UNTAET was left for several months without a function-
ing court structure; the mission opted to operate without such a structure
instead of introducing an emergency judicial system until such time as a
transitional court structure could be established. This decision clearly in-
dicates that the United Nations was intent on establishing a regular court
structure from the early stages of its mission, rather than another type of
institutional arrangement that could address crimes in the territory.

Pursuit of prosecutions for past atrocities from mission’s beginning

In mid-December 1999 the UN Secretary-General told the General As-

sembly that “Accounting for the violations of human rights which oc-
curred in the aftermath of the consultation process is vital to ensure a
lasting resolution of the conflict and the establishment of the rule of
law in East Timor.”47 Three months after UNTAET was established, the
United Nations published the report of its International Commission of
Inquiry on East Timor, which assesses the atrocities committed in the ter-
ritory in 1999.48 Based on the determination that the nature of the terror
and violence was widespread and systematic, two of the key requirements
for deciding whether or not the violence constitutes a crime against hu-
manity, the commission recommended that an international tribunal be
established under UN auspices.49 This recommendation fitted in well with
the UN’s desire to address such atrocities promptly and through prosecu-
tions. However, having had the opportunity to observe the developments
with the ICTY and the ICTR for several years, Indonesia decided to in-
vestigate the violence itself and hold trials in domestic tribunals, thereby
deferring the establishment of an international tribunal.50
As Kofi Annan’s statement above indicates, what was important for the
United Nations was that perpetrators would be pursued. However, it ap-
pears that the United Nations was not prepared politically or financially
102 UNITED NATIONS JUSTICE

to establish another ad hoc tribunal for East Timor. Kofi Annan made
clear that:

The main thing is to send a message that crimes against humanity and such
gross violations against human rights will not be allowed to stand and that
those responsible will be held accountable . . . [And thus] there will be no need
for the Council or the UN to set up another tribunal to compete with one set
up by the Indonesian government that is going to do exactly the same thing.51

Essentially, the unstable political situation in Indonesia meant the in-

ternational community was reluctant to push the country on the issue of
atrocities committed by its own forces, and declare officially that Indone-
sia was either unwilling or unable to provide justice using its own judicial
system; moreover, in terms of both international law and UN policy, do-
mestic Indonesian trials remained the preferred course of action.52 Thus,
while Indonesia’s decision to hold trials initially appeared to defer the
establishment of an international tribunal, the international community’s
reluctance to push for its creation essentially meant that Indonesian war
criminals would either not be held accountable or would be given very
light sentences by a domestic judiciary influenced by the country’s politi-
cal leadership.
But while the United Nations was unwilling to push for an end to im-
punity in Indonesia, it nevertheless opted to hold trials for serious crimes
locally in East Timor. Interestingly, justice by national means was never
explicitly mentioned as part of the UNTAET mandate.53 However, even
before the Secretary-General’s above-mentioned comments, the United
Nations and the international community had made the broad decision
to pursue the perpetrators of atrocities. Arguably, this moral imperative
for the mission to pursue such individuals was already ingrained in Se-
curity Council Resolution 1272 (1999), which stressed the need for rec-
onciliation and demanded that the perpetrators of atrocities be held
accountable.54
In March 2000 UNTAET passed Regulation 2000/11, which gave Dili
District Court exclusive jurisdiction over genocide, war crimes, crimes
against humanity, torture, murder and sexual offences, altogether known
as serious crimes.55 The regulation furthermore empowered the TA to es-
tablish panels composed of both East Timorese and international judges
for trials of such serious offences. Three months later the TA passed Reg-
ulation 2000/15, establishing several panels of judges to operate within
the district court in Dili with exclusive jurisdiction to deal with these se-
rious criminal offences, and several panels within the Court of Appeal
in Dili to hear and decide on appeals stemming from the district court
panels.56 This approach stands in contrast to the one the United Nations
 EAST TIMOR 103

took in Kosovo, where the internationalized panels did not have exclusive
jurisdiction over serious crimes, and were also not specifically appointed
to adjudicate them.57 Two international judges and one East Timorese
judge would sit on the respective panels, but for graver crimes three in-
ternational and two East Timorese judges would hear the cases.58 These
panels were essentially modelled on the UN’s draft plans for the estab-
lishment of extraordinary chambers for Cambodia, and represented an
entirely new international justice mechanism, operating at the domestic
level under UN administration.59
Finally, Regulation 2000/16 completed the mechanism for the prosecu-
tion of serious crimes: it set out the organization of the public pros-
ecution service, and in particular the establishment of the Office of the
Deputy General Prosecutor for Serious Crimes, which was granted exclu-
sive responsibility for all serious crimes cases.60 Both East Timorese and
international prosecutors were to be appointed to this office.61
The establishment of an international tribunal for the crimes com-
mitted in East Timor in 1999 was technically only deferred, and the trial
of serious crimes in this hybrid court system with special panels was
not meant to prejudice the eventual jurisdiction of such an international
tribunal over these crimes. However, in the meanwhile, in the absence of
such an expensive tribunal, the United Nations considered the prosecu-
tion of such crimes to be significant enough as to wish to address them
within the regular justice system, and to begin this process as early as
possible. As one barrister who worked in East Timor put it, a “state-of-
the-art system for prosecuting international crimes [was] grafted onto the
fledgling criminal justice system of East Timor”.62 The types of problems
these special panels experienced, as well as the negative repercussions
which their creation had for the justice system, will be discussed in detail
in the following sections. What is clear, though, is that as with Kosovo, the
United Nations was bent on addressing serious crimes early on in its mis-
sion, and through a justice system that it was rebuilding at the same time
from the ground up.

Local participation in the judicial process from mission’s beginning

When the Indonesian army and its paramilitary supporters withdrew

from East Timor, the territory’s judicial infrastructure collapsed com-
pletely. The former principal legal adviser to UNTAET, Hansjoerg
Strohmeyer, wrote that “Most court buildings had been torched and
looted, and all court equipment, furniture, registers, records, archives, and
– indispensable to legal practice – law books, case files, and other legal
resources dislocated or burned.”63 The Secretary-General observed in his
report on East Timor that “local institutions, including the court system,
104 UNITED NATIONS JUSTICE

have for all practical purposes ceased to function, with . . . judges, pros-
ecutors, and other members of the legal profession having left the ter-
ritory…”.64 The problem for these jurists and clerical support staff was
that they were either “perceived as being members de facto of the ad-
ministrative and intellectual privileged classes” or seen as having “been
publicly sympathetic to the Indonesian regime”.65 As such, they felt that
there was not going to be any place for them in a new East Timor; fear-
ing reprisal violence, many of them fled East Timor after the results of
the popular consultation were announced.
The lack of qualified lawyers who could serve within a rebuilt judiciary
presented a very difficult problem for the UNTAET administrators. The
Secretary-General had stated his desire that any members of the newly
created judiciary be “professionals recruited from among the East Timor-
ese, to the largest extent possible”.66 However, the exodus of qualified
legal personnel left the territory virtually without any individuals who
would be sufficiently competent to undertake a task which was already
very challenging given the level of physical destruction. Under Indone-
sia’s occupation, no East Timorese had been appointed to either judicial
or prosecutorial office, and thus even if there were any East Timorese
with law degrees to be found, they would not have had any practical legal
experience.67
Nevertheless, the United Nations and its mission felt that the appoint-
ment of East Timorese to judicial positions was politically important,
and practically the only feasible solution. In the first instance, in a post-
conflict environment, and especially one where a local population has
been oppressed, employing local individuals in judicial posts that would
not have previously been accessible to them was considered to be of
tremendous symbolic and political significance.68 According to Stroh-
meyer, the local expectation that went along with the euphoria after the
international intervention was that the international community would
involve East Timorese in the process of democratic institution building,
and particularly in the legal sector; appointing local judges, which had
not occurred under either Indonesia’s occupation or Portugal’s colonial
rule, was thus symbolically important as well as necessary if the United
Nations was to act in a politically sensitive manner.69
A more practical consideration was the fact that INTERFET-detained
prisoners were awaiting trial, and neither the United Nations nor any
other body in the international community had the capacity to deploy an
adequate number of international jurists who would be able to commit
for a long period of time, were proficient in English, had enough practical
experience in a civil-law-based justice system and would have sufficient
knowledge of the local legal traditions to try these suspects immedi-
ately.70 Evidently, the United Nations perceived that this imminent
 EAST TIMOR 105

problem would need to be overcome through the appointment of indi-

viduals familiar with the local civil law system. Furthermore, Strohmeyer
noted that:

the experience of other United Nations missions [had] shown that the ap-
pointment of international lawyers leads to a myriad of practical concerns that
would have overburdened the [mission] in [its] set-up phase, such as the costly
requirements of translating laws, files, transcripts, and even the daily conversa-
tions between local and international lawyers, as well as the enormous time and
expense of familiarizing international lawyers with the local and regional legal
systems.71

Moreover, it appeared to UN officials that international judges would

only be a temporary measure and could not be sustained in the long run,
and that would itself cause further dislocation when the funds began to
run out.72 All these perceptions would seem to support the argument pre-
sented in this book that as a result of its prior mission experience, as well
as political considerations, the United Nations did indeed come to lean
towards the appointment of local officials to judicial posts as a matter of
priority.
Since UNTAET did not know how many individuals with a legal back-
ground still lived in East Timor, the mission staff went out to search for
any remaining qualified lawyers, as well as law students and graduates,
by word of mouth.73 INTERFET aided in this difficult undertaking by
dropping leaflets from its planes throughout the territory, calling upon
any such individuals to get in touch with any of the UN mission offices or
its own outposts; within a week 17 individuals came forward as a result
of this effort, and within two months over 60 local jurists had applied for
judicial positions, either as judges or prosecutors.74 While all these ap-
plicants had law degrees, mostly from Indonesian but in some cases from
foreign law schools, none of them had the practical experience normally
needed to apply for such positions: some had gained legal experience
in Indonesian law firms and legal organizations, others had worked as
paralegals with either Timor’s resistance groups or human rights organi-
zations, but none had ever held the position of judge or prosecutor.75
But despite the candidates’ lack of adequate qualifications, the United
Nations proceeded to make appointments to judicial posts. In doing so,
the organization wanted to contrast its actions with those of the terri-
tory’s prior political masters, who had flagrantly politicized judicial ap-
pointments: the mission aimed to make such appointments as transparent
as possible so as to ensure that the process would be viewed as legitimate,
thereby also legitimizing the new judiciary.76 UNTAET’s method was the
creation of the Transitional Judicial Service Commission, which was man-
dated with the task of selecting the territory’s first East Timorese judges
106 UNITED NATIONS JUSTICE

and prosecutors.77 The commission was not only the main vehicle for se-
lecting new jurists, but attested to the fact that in addition to wanting to
involve locals in the newly established judiciary, the United Nations was
committed to involving local actors in all stages of the judicial process,
including the selection stage. Three of the five commission members, in-
cluding the chairman, were East Timorese. Strohmeyer explains that:

in order to build a strong sense of ownership over their new judiciary, and
to inject as much domestic expertise as possible in the process, it was deemed
essential that the majority of the Commission members be recruited from
among local experts and that they be empowered to overrule the international
members.78

While the commission was not in a position to appoint jurists – it could

only recommend able candidates to the TA, who would then be able to
appoint them – it nevertheless fulfilled the crucial task of pre-selecting
the best East Timorese law-degree-holding candidates. On 7 January 2000
the TA appointed the first eight judges and two prosecutors to office
from those who had been pre-selected by the commission. Due to the
relatively low level of qualifications of the candidates, UNTAET devised
a training programme composed of three elements: a one-week quick im-
pact course before the actual appointment, continued training while in
office and the provision of a mentor.79 However, Strohmeyer decided in
January to transfer complete control of the judiciary, and complete juris-
diction over ordinary crimes, to local East Timorese jurists.80
The merits of appointing underqualified individuals to key posts will
be discussed in more detail later in this chapter. Important to note, how-
ever, is that the UN leadership did put a great emphasis on involving
local actors in the judicial process to the greatest extent possible, and
from the beginning of the mission. What is also interesting to note is the
fact that UNTAET was much more aggressive in the Timorization of the
rule-of-law institutions, and the judiciary in particular, in comparison to
its approach to the involvement of local actors in the civil administration
of the territory or its political institutions.81 The evidence to this effect
clearly demonstrates that the involvement of local actors in the judicial
process was treated early on as a matter of priority over and above other
sectors important for sustainable and democratic governance.

Legal and judicial reform developments

This section discusses some of the developments which resulted from
the UN’s approach to legal and judicial reform, focusing particularly on
those occurrences which are most relevant for the analysis and discus-
 EAST TIMOR 107

sion section to follow. As mentioned earlier, Simon Chesterman’s assess-

ment that the UN’s choice of law was “uncontroversial”82 is inaccurate.
The UN’s choice not only proved to be controversial, but also led to one
of the first major political crises in Timor-Leste. As one of the first prose-
cutors for the special panels, Suzannah Linton, argues, “the decision to
apply Indonesian law was a controversial one and remains so to this
day”.83 While initially there was not the same type of uproar about the
choice of law as there was in Kosovo, the crisis over the law did come
eventually – in 2003, one year after the country became independent.
Strohmeyer explains that when the United Nations chose Indonesian law,
“various parts of the East Timorese community objected to the very idea
of continuing the application of the same laws that had been used for
more than two decades by the Indonesian regime, and which were, there-
fore, widely perceived as being tools of the Indonesian occupation of East
Timor”.84 Linton further explains that “Part of the objection stems from a
lack of appreciation that UNTAET is simply a transitional administration
and the choice of law that will eventually be applied in the independent
East Timor is a decision to be made by the new state and its officials.”85
However, despite 25 years of Indonesian oppression, pragmatism caused
East Timor’s local leadership to accept the application of Indonesian law
as the most practicable solution to the rule-of-law vacuum.86
Until July 2003 it was commonly understood that the applicable law
was Indonesian law. However, on 15 July 2003 a legal crisis ensued that
precipitated a political crisis, and created much doubt and confusion
about the applicable law. The whole issue began when the Court of
Appeal delivered a ruling in the Dos Santos case, which sentenced the
defendant on three counts of murder and “a crime against humanity in
the form of genocide”.87 This would have been impossible under the
Indonesian penal code. While the public prosecutor had charged Dos
Santos with crimes against humanity, the special panel for serious crimes
had convicted him of murder as a standard crime under the Indonesian
penal code, and the defendant was sentenced to 20 years’ imprison-
ment.88 The public prosecutor, however, had decided to appeal this deci-
sion by arguing that Dos Santos should have been convicted of murder
as a crime against humanity, which carries a minimum 22-year sentence
under the Portuguese penal code, two years longer than the sentence
which Dos Santos had received. The Court of Appeal’s decision to sen-
tence Dos Santos for crimes against humanity created much confusion
and uncertainty within East Timor’s legal community, and eventually di-
vided the courts and the legal establishment regarding the source of the
East Timorese laws.89
The Court of Appeal ruled by a two to one majority that since the
Indonesian occupation of East Timor between 1974 and 1999 was illegal
108 UNITED NATIONS JUSTICE

under international law, the valid applicable law prior to 25 October 1999
was that of Portugal, the former colonial power. The court concluded that
since:

Portugal continued to be recognised by the international community, by the

United Nations Security Council and by the Timorese People as the Adminis-
tering Power of East Timor during the period between December 1975 and 25
October 1999, the “laws applied in East Timor prior to 25 October 1999” could
only be the Portuguese laws.90

But in relation to a further case where the Court of Appeal applied

Portuguese law, the dissenting judge in the Dos Santos case stated that
she disagreed with the interpretation of Article 3.1 of Regulation 1999/1,
and that in her view “what is meant by the law applicable before 25 Oc-
tober 1999 refers more to Indonesian law”.91 She made her case on the
basis that clauses 2 and 3 of Article 3 unambiguously refer to laws to be
repealed that are part of the Indonesian legal code.
After its majority decision, the Court of Appeal applied Portuguese
law in a few more cases, but the Dili District Court and the special panel
for serious crimes refused to apply Portuguese law and continued apply-
ing Indonesian law.92 Thus for a while a dual system of laws operated in
the territory. But the implications for legal reform of having such a dual
system were serious: in the first instance, if Portuguese law was applied in
the long term, all legal transactions of the period between 1974 and 1999
would have been potentially rendered invalid since they would have been
made under Indonesian and not Portuguese law. This in turn would have
caused a significant disruption to the functioning of the legal system, and
also a disruption of the economy.93 Furthermore, the uncertainty as to
the applicable law for the duration of UNTAET between 1999 and 2002
would also cast doubt on the validity of the decisions of the special
panels taken over the course of those years.94
The issue became highly political, and nine parliamentary deputies took
it upon themselves to propose a law in the National Parliament which
would determine that the applicable law was Indonesian law.95 Timor-
ese lawyers, most of whom had graduated from Indonesian law schools,
threatened to resign from their positions as judges, public defenders or
prosecutors unless parliament voted in favour of the proposal. After a
series of parliamentary debates, with frequent negative references to the
four centuries of Portuguese colonial rule, the proposed law passed over-
whelmingly with 62 votes to three and 12 abstentions on 30 September
2003, and the dispute was resolved.96 It is clear, though, that this episode
undermined public trust in the new judiciary. Between 2003 and 2006 the
legal framework remained based on Indonesian law. However, in 2006
 EAST TIMOR 109

this framework was replaced by civil and penal codes based on Portu-
guese law.97 This important change in the legal system appears to indicate
that while the local jurists and the population at large may have initially
accepted the Indonesian legal codes for pragmatic reasons, the general
sentiment was in favour of the more progressive Portuguese legal codes.
Apart from being unpopular, and eventually leading to a legal and po-
litical crisis, the UN’s initial choice of law was problematic in a further
key respect. Strohmeyer explained that:

It is difficult for any lawyer, for example, to interpret the Indonesian Penal
Code and Criminal Procedure Code through the lens of those international
human rights instruments which are now part of East Timorese domestic law.
Moreover, only a few East Timorese lawyers are familiar with the application
of international human rights norms in practice.98

The decision to require the interpretation of the Indonesian laws

through the lens of a complex international legal regime not only placed
a heavy burden on inexperienced lawyers, but also created an unneces-
sary lack of clarity within the legal framework.
Furthermore, the legal regime which the United Nations chose to es-
tablish for the special panels created various difficulties. Linton explains
that legally, Regulation 2000/15 “Incorporates, almost verbatim, the sub-
stantive legal provisions dealing with subject matter jurisdiction and the
general principles of law contained in the proposed Rome Statute of the
International Criminal Court.”99 The problem with this regime, as Linton
puts it, is that:

This highly ambitious document has imported a regime created for a radi-
cally different setting, the International Criminal Court . . . into a district court
of one of the world’s poorest nations. The Rome Statute . . . is premised upon
the assumption that an international body will be created receiving maximum
international support, able to administer and uphold the highest international
standards that set an example for all . . . By adopting provisions meant for the
ICC, UNTAET may have “bitten off more than it can chew”. As it is slowly
discovering, Regulation 2000/15 has created a tremendous legal and financial
burden.100

So the mission adopted a highly complex legal regime for the prosecu-
tion of serious crimes while it was trying at the same time to build from
the ground up, and with very few resources, the judicial system within
which this complex framework was to apply. As will be discussed further
below, the application of such a complex legal regime by inexperienced
lawyers led to many problems.
110 UNITED NATIONS JUSTICE

One of the curious developments of the UN’s judicial reform efforts

was the appointment of judges and prosecutors at a time when no court
system was in existence. As we saw, the TA appointed the first jurists in
early January 2000; however, Resolution 2000/11 “On the Organization
of Courts in East Timor” was not promulgated until 6 March, nearly two
months after the judges began their work, issuing arrest warrants, etc. A
further curiosity was that in the first few months of 2000 only a handful
of individuals had copies of the Indonesian Criminal Code and the In-
donesian Code of Criminal Procedure in a language they understood.101
While this failure to distribute the applicable law quickly and widely in
a language that was commonly understood was eventually rectified, the
problem of the failure to publicize laws nevertheless kept reappearing at
various stages of the mission. Regulation 1999/4 had established the of-
ficial Gazette which was intended as the formal mechanism for publishing
UNTAET laws and relevant legislation.102 However, the publication of
the Gazette was initially irregular and then lapsed altogether in 2001.103
With the establishment of the courts in March 2000 and the serious
crimes panels in June 2000, the wheels of justice started to turn, al-
though not without difficulties and serious flaws. In the first instance, the
United Nations had established eight district courts and one Court of
Appeal; however, as a result of the lack of trained judges and resources,
the number of district courts had to be reduced to four two months
later.104 Furthermore, East Timorese judges, prosecutors and public de-
fenders met the establishment of the special panels and the adoption
of the relevant legal regime for those panels with great resentment and
hostility; Linton explains that these jurists:

Publicly voiced anger and disappointment that they were not included in any
meaningful way in the consultation process that led to its adoption. The East
Timorese jurists perceived that, as in previous times, they were being denied
the right of meaningful participation in momentous decisions affecting them.
The Presidency of the District Court of Dili was particularly outraged that, de-
spite the provisions of s. 10.3 of Regulation 2000/11, it had not been consulted
about the establishment of Special Panels. There was a strong feeling that the
international community was taking the cases away from the East Timorese;
there was a loss of ownership and involvement in this crucial process.105

The jurists’ vocal protests about the lack of consultation and inclusion
in the process that led to the establishment of the special panels argu-
ably cancelled out the intended benefit of the UN’s approach of includ-
ing local actors from the early stages of the mission.106 On the one hand
the United Nations wanted to give locals a sense of ownership over the
judicial process; but when it came to a crucial task for the judiciary – the
 EAST TIMOR 111

prosecution of serious crimes – the United Nations failed even to consult

the local jurists.
When the first serious crimes trials began, it became clear that the
judicial system was marred by many procedural and institutional defi-
ciencies and political problems which undermined the entire judicial re-
form effort. For instance, some of the defendants had not only been held
in pre-trial detention for a period longer than that normally acceptable
under international standards, but had been kept in such detention il-
legally: the orders of arrest and detention were issued or sanctioned by
individuals not in a position to do so, since they were appointed to a legal
entity which was not yet in existence.107 However, irrespective of the un-
lawfulness of these detentions, UNTAET retroactively validated all of
them: Regulation 2000/14 included Article 12a.10, which legalized “all
warrants for detention issued by the Investigating Judge or Public Pros-
ecutor prior to the coming into force of the present Regulation”.108
One of the political problems stemmed from the conflicting objectives
of UNTAET’s mandate: the first of these was to ensure the return and
resettlement of refugees;109 the second objective was the need to bring
the perpetrators of atrocities to justice. The conflict arose from the fact
that many of the refugees were ex-militia who did not want to return
to East Timor for fear of prosecution; thus a vigorous prosecution policy
would clearly discourage such refugees from returning, and would there-
fore make it very difficult for the United Nations to fulfil a key aspect of
its mandate.110 Furthermore, some of the militia leaders who fled to West
Timor were influential in their communities, and many of the key sus-
pects were therefore politically vital in the matter of refugee returns; thus
the political objective of wishing to bring back refugees did compromise
the justice process. As one report described the situation:

Militia leaders and other prominent opponents of East Timor’s independence

ensconced in Indonesian West Timor are feted and treated like state visitors on
UN sponsored “look see” visits to East Timor, supposedly designed to encour-
age the return of refugees held captive by the militias in West Timor . . . In the
name of reconciliation the UNTAET Chief of Staff spends much of his time
courting militia leaders such as the Carvalho brothers whose militias razed
Ainaro town to the ground.111

The problem was that the Serious Crimes Unit (SCU), which was
charged with UN prosecutions, became involved in negotiations with
these ex-militia leaders, and there was a legitimate concern that their will
to prosecute some of these leaders objectively had diminished due to this
interaction.112
In addition to being unfair, the UN’s approach to prosecutions was also
incoherent. UNTAET was mandated to prosecute “those responsible” for
112 UNITED NATIONS JUSTICE

the atrocities in 1999,113 but the lack of a prosecution strategy led to a

situation where “whether a person is prosecuted or not appear[ed] to be
the result of an accident of geography”: while many of the high-ranking
officials remained at large, small-time members of the militia were in-
dicted simply because they were “in the wrong place, at the wrong
time”.114 The UN’s desire to prosecute atrocities from the early stages of
the mission led to the adoption of an early indictment policy. However, it
is evident that this policy, along with the fact that Indonesia was intent on
protecting its own war criminals, meant that virtually all serious crimes
trials in East Timor involved only small-time perpetrators; unsurprisingly,
this led to the development of a perception among the local population
that the decisions about who would be tried were not based on any fair
or objective criteria.115
What was arguably the worst blow to the prosecution strategy was the
UN’s refusal to support its own prosecutors in one prominent indictment
in 2003, along with the decision of the East Timorese leadership to dis-
tance itself from that indictment. The case was that of General Wiranto,
the former minister of defence and commander of the Indonesian armed
forces. When the indictment for General Wiranto and seven other men,
including East Timor’s former governor, Abilio Soares, was issued, East
Timor’s President Xanana Gusmao was quick to distance himself from it,
expressing regret for not having been consulted on the matter and stat-
ing that it was not in East Timor’s interest to hold such a trial, given the
importance of good relations with Indonesia. While Gusmao tried to im-
ply that the indictment had come from the United Nations, the United
Nations countered by arguing that “while indictments are prepared
by international staff, they are issued under the legal authority of the
Timorese Prosecutor General. The United Nations does not have any
legal authority to issue indictments.”116 This statement was insincere, be-
cause the SCU had been in charge of prosecutions even after East Timor
gained its independence, whereas East Timorese prosecutors were pre-
dominantly involved with ordinary crimes.117 It appears that this trial was
politically unviable for both the United Nations and East Timor; the clear
implication was that the impartial pursuit of justice does not apply to
cases which have the potential to be politically destabilizing.
In addition to the lack of a fair and coherent prosecution strategy,
the judicial process was marred by the lack of adequate defence coun-
sel. While the United Nations set up a prosecution with experienced
international lawyers and staff, and appointed international judges, the
responsibility for public defence was placed entirely in the hands of inex-
perienced Timorese jurists: the United Nations established a small Public
Defender’s Office, manned it with local lawyers and mandated it with the
responsibility for defending all types of cases, including those involving
 EAST TIMOR 113

serious crimes.118 While these lawyers had law degrees from Indonesian
universities, none had any experience of litigation before being hired.119
One observer argued that the appointment of public defenders came as
an “afterthought” to the appointment of prosecutors and judges, and that
such defenders were less able than their counterparts: “Simply put . . . The
public defenders were appointed out of what was left of candidates with
law degrees.”120 And so initially fewer than 10 public defenders were
hired for the whole territory.
The original expectation was that these lawyers would be able to work
on the serious crimes cases. But eventually the gap in experience and
skill between the Timorese defenders and the professional international
prosecutors became impossible to ignore, and UNTAET offered to spon-
sor three international defence lawyers.121 However, this and further
offers by NGOs to sponsor international defenders were strongly resisted
by the Timorese-administered Ministry of Justice.122 This obstructionist
behaviour was linked with the ministry’s agenda to make Portuguese, as
opposed to the predominant local dialect Tetun, or English, the official
working language of the judicial system and the government sector.123 As
a result, experienced international defenders with NGO funding were di-
rectly blocked from joining the Public Defender’s Office on the simple
basis that they came from English-speaking countries.124
The International Foundation for Election Systems’ offer to fund a sec-
ond mentor in the Public Defender’s Office also failed to lead to such
an appointment before it expired in 2002, on similar grounds.125 While
eventually some international lawyers did manage to work in that office
as either mentors or defenders, this did not happen without substantial
resistance from the Ministry of Justice.126 As will be demonstrated below,
such obstructionism on the basis of language politics went beyond resist-
ance to international defenders, and included resistance to the hiring of
international judges and the acceptance of much-needed funding. Im-
portant to note is that language politics soured the relationship between
the UN administration and the East Timorese relatively early on. There
was a perception on the part of the Timorese that the United Nations
wanted to impose the use of Bahasa Indonesia or English as a working
language in East Timor, and in one instance Foreign Minister Ramos
Horta threatened that he would prohibit the participation of any of his
staff in a UN-organized training workshop if it was not conducted in
Portuguese.127 Given that only a small élite of approximately 5 per cent
spoke Portuguese,128 and that it was not spoken during most trials in the
hybrid tribunals by either defendants, witnesses or defenders, the govern-
ment’s insistence on the use of Portuguese, and its resistance to vital in-
ternational appointments on this basis, seems at best misplaced and at
worst detrimental to the judicial system.129
114 UNITED NATIONS JUSTICE

While UNTAET had offered to sponsor three international defend-

ers, the Justice Ministry’s resistance to this offer meant that by 2003 only
one of these positions had been filled. Even though the UNDP had man-
aged to fund a further international defender temporarily, to assist with
the mounting caseload,130 and the NGO No Peace Without Justice had
sponsored another international defender, these efforts were minimal in
proportion to what was necessary so as to proceed with the trials at a
reasonable pace and ensure that the quality of the defence was of a suf-
ficiently high standard. As the Los Palos case demonstrates, there were
serious shortcomings even though international defenders were hired: the
very limited number of Timorese defenders meant that the three assigned
to the case had to take on five clients between them, and the three in-
ternational defence lawyers assigned to the case took on a further five
clients.131 The problem with this approach was that the representation of
multiple clients by one lawyer had the potential to threaten the quality of
the defence which each individual is guaranteed under international fair
trial standards; this situation worsened further when two of the defenders
left for Portugal, leaving the remaining lawyers to take over the defence
of their clients.132 Furthermore, while the issue was never raised in this
case, there was nevertheless potential for a conflict of interest to arise for
those defenders representing more than one person accused of the same
crime.133
Moreover, the limited number of Timorese and international defenders,
the high demand on their time and the limited resources available to
them meant that they were not able to meet their clients with the de-
sired frequency; this was true for ordinary and serious crimes cases.134
For instance, in the Los Palos case one of the local defence lawyers sent
a standardized letter to the investigators informing them that due to time
constraints he would be unable to attend the questioning.135 Eventually,
defendants and witnesses in the case raised objections during the trial
about their statements as they had been recorded or translated during
questioning, and defence lawyers queried the use of statements taken
under conditions where a lawyer was not present. The court nevertheless
had to permit their use, arguing that in the act of testifying, after hav-
ing been informed of his right to a defence lawyer, the defendant had
waived his right to such counsel during questioning.136 This incident was
by no means the only one where a lawyer was unable to see a client at a
key point, and serves to highlight the endemic lack of Timorese defence
lawyers.
In addition to the fact that the low number and inexperience of the
Timorese public defenders seriously undermined the quality of the de-
fence, and eventually led to the creation of a backlog of cases, the qual-
ity of the international defence lawyers provided early on was also low:
 EAST TIMOR 115

none had experience of court work in crimes against humanity cases137

and with international or even criminal law.138 Furthermore, the two
UNDP-funded mentors hired to assist and train the local defenders were
not qualified for the position: the first mentor was a lecturer in commer-
cial law, had never been a criminal defence lawyer and had no experi-
ence at litigation; and while the second had practised as a defence lawyer,
he was unable to speak any of the four official languages used in court,
which obviously rendered him virtually incapable of helping the Timorese
defenders.139
The problem of insufficient numbers and lack of adequate experi-
ence plagued not only the Public Defender’s Office but also extended
to the local and international judges. Regulation 2000/15 required that
“in the overall composition of the panels due account shall be taken of
the experience of the judges in criminal law, international law, including
humanitarian law and human rights law”.140 This was the first judicial ap-
pointment for the local judges, so experience as such, let alone with inter-
national law, was something they sorely lacked. But what made matters
much worse was the fact that the international judges appointed to the
special panels also lacked any prior experience in applying international
law.141 Thus the panels were made up entirely of judges who were inexpe-
rienced in matters of international law; and while groundbreaking cases
were undertaken given that in practice the Rome Statute essentially ap-
plied, virtually none of the special panels’ decisions contained references
to international jurisprudence.142
The problem of having inexperienced international and local judges
working on serious crimes cases was compounded by the fact that there
were never enough judges for more than one panel to operate at any giv-
en time. Regulation 2000/15 envisioned the establishment of more than
one special panel.143 However, the scarcity of judges meant that only one
panel was able to operate during all but one month of 2001, and sub-
sequently five judges had to rotate between two panels.144 This situa-
tion inevitably led to a large backlog of cases: once the Los Palos case
got under way early in 2001, it effectively shut down the rest of the seri-
ous crimes cases,145 and a backlog began which the United Nations was
never able to remedy fully. Furthermore, the lack of judges meant that
the Court of Appeal was unable to function for well over half a year
between 2001 and 2002.146 The problem was initially blamed in part on
a lack of planning, a failure on the part of the United Nations and the
Timorese to appreciate the importance of the right to an appeal and a
misunderstanding between UNTAET and the Ministry of Justice over
who was responsible for judicial appointments: while UNTAET held that
the initiative for judicial recruitment lay with the Ministry of Justice, the
ministry felt that it was UNTAET’s responsibility.147
116 UNITED NATIONS JUSTICE

While the above is a valid assessment of some of the reasons why the
Court of Appeal was unable to function, the Ministry of Justice was also
at fault because it obstructed the appointments process. In addition to
stalling some of the judicial appointments to the special panels,148 the
Ministry of Justice obstructed Court of Appeal appointments: when on
8 May 2002 the Transitional Judicial Service Commission recommended
the appointment of one Irish and one Canadian judge to the Court of
Appeal,149 the Minister of Justice Anna Pessoa and the Department
of Judicial Affairs resisted these appointments and the posts were not
filled.150 As one NGO observing all judicial proceedings, the Judicial Sys-
tem Monitoring Programme, put it: “There was a preference within the
Ministry of Justice for Court of Appeal judges to come from Lusophone
countries.”151 When Timor-Leste became independent, 39 cases were
pending for appeal, eight of which were appeals from decisions made by
the special panel.152 Thus the Justice Ministry’s obstinate behaviour to-
wards judicial appointments had a negative impact on the right to appeal
of those accused of both ordinary and serious crimes.
There were certainly many other factors which hindered the appeals
process. Perhaps the most problematic of these was the absence of com-
plete official written transcripts of court proceedings of any type made
in the district courts, apart from some basic notes taken by judges in
court.153 The importance of a written record of trial proceedings for the
launch of an appeals process is common knowledge to any lawyer:

Having access to an accurate transcript of the proceedings is essential for the

parties when preparing for any appeal, and for the judges during the appeal
hearing. If the reasoning or outcome in the decision of the court at first in-
stance is challenged, an accurate transcript is the primary basis upon which the
appeal court is able to assess the challenge.154

This importance was acknowledged in two regulations – Regulations

2000/11155 and 2000/30.156 While video and audio recordings were made
of the proceedings in front of the special panels, these records were not
transcribed, and the common practice was for judges on the special pan-
els to refer to their own notes taken during the proceedings and disregard
these recordings.157 Furthermore, the use of audio or video recordings of
proceedings without a written transcript was highly problematic because
it was very difficult for anyone to review specific sections of the record,
since the recordings were only stored by date; and crucially, the record-
ing of multiple interpretations from various languages on audio CDs or
video is complex and problematic in itself.158 The final decision in the
Joseph Leki case clearly illustrates how the courts proceeded under the
circumstances: “The rapporteur judge made a record after summarizing
 EAST TIMOR 117

as accurately as possible on a portable computer the statements made by

the parties and the questions, orders and decisions of judges during the
hearing.”159
This process led to a confused and unclear record of the trial proceed-
ings. One case illustrates this particularly well, and also shows how im-
portant a clear, accurate and comprehensive written transcript of trial
proceedings is for the appeals process. In the case of the first final appeal
from a decision of the special panel, Judge Frederick Egonda-Ntende
noted that the official record of the proceedings was inconsistent with the
report contained in the special panel’s judgment, arguing that “The im-
precise language leaves the record somewhat confused”160 and ultimately
deciding that this lack of clarity and consistency between the panel’s trial
decision and the proceedings’ record, which is vital for the appeals pro-
cess, had led him to the conclusion, albeit the minority decision in this
particular appeal case, that the panel’s decision was not law-based and
was thus a nullity.161
In addition to rendering trial decisions as potentially not based on law,
the lack of comprehensive written trial records made it difficult to file an
appeal, as can be illustrated in the Los Palos case. Following the judg-
ment in the trial on 11 December 2001, the appeal notice filed states that
the records of the proceedings will be used as evidence. By early Febru-
ary 2002 the special panel had to grant an extension for the appeal to
be filed, given that no record of the proceedings was available, and also
ordered that the court registrar make this transcript available. While the
Court Registry made the video records available, it did not provide any
transcript, as none existed.162 The special panel ordered in late March
2002 once again that the records of the trial be made available to the
appellants by mid-April, however, by the end of April 2002 no transcript
had been provided, and thus the appeal proceedings were suspended.163
All in all, UNTAET allowed 13 trials to proceed to verdict without
the provision of a written or recorded transcript.164 A “very senior” of-
ficial from the prosecutor’s office is reported to have said that the special
panels did not have to meet international standards because they were
essentially domestic tribunals, and therefore “domestic” standards must
apply.165 However, given that it was the United Nations which estab-
lished the justice system, a claim that domestic standards must apply is
disingenuous, and attempts to hide the fact that the United Nations was
unwilling to provide more expensive justice mechanisms, such as those
offered at the ICTR and the ICTY.166
But even if written transcripts had been provided, this would not have
surmounted the problem of the lack of adequate translation of court docu-
ments and adequate interpretation offered during the trials, a fact which
would also have affected the quality and accuracy of such transcripts.
118 UNITED NATIONS JUSTICE

Regulation 2000/11 provides for the right to an interpreter in all cases,167

and since the court was operating with four official languages,168 the vari-
ous combinations of Timorese and international judges, prosecutors, de-
fenders, defendants and witnesses meant the demand for translation and
interpretation was great, at times involving up to six languages in one
trial if languages other than the four official ones had to be used.169 How-
ever, during the entire mission no translation unit was established that
could serve only the courts, which consequently had to use the seven in-
terpreters working for the Justice Ministry. These interpreters had firstly
no formal qualifications, secondly no legal training and thirdly no expe-
rience with court interpretation.170 Yet as well as providing interpreta-
tion services in court and translating official court documents, these seven
individuals had to offer their translation services to the National Parlia-
ment in addition to their regular work for the Justice Ministry; the most
charitable way to describe the translation service is that it was “stretched
to capacity”.171
This overstretching of the translation and interpretation service, and
its relatively low and dubious quality, were problematic in several key
respects: firstly, it slowed down the proceedings of trials significantly; sec-
ondly, interpretation was provided only erratically during trials, thereby
hindering a defendant’s right to understand what was going on during
the proceedings;172 and thirdly, it led to a frequent problem of commu-
nication between the defence and a defendant. In the Los Palos case, for
instance, two of the defenders spoke only English and were reliant on in-
terpreters in order to communicate with the defendants; at times, if inter-
preters were not available, the defence had to ask members of the public
for assistance.173
The quality of the translations also resulted in a lack of clarity. During
a trial session, for instance, a defender spoke in English and enquired
about “the hitting of Evaristo Lopez”, but as he was unable to pronounce
the English “h” at the beginning of a word, the question was translated
into Bahasa Indonesia as the “eating . . . of Evaristo Lopez”.174 A prob-
lem really arose when judges assigned considerable weight in their judg-
ments on potentially faulty interpretation of quotes from the accused:
in one case, the court impugned a defendant’s credibility on the basis of
inconsistencies in his testimony.175 As the JSMP observed, “the possibil-
ity cannot be discounted that . . . alleged inconsistencies [in a defendant’s
testimony] were simply the product of language difficulties between the
participants in court”.176 And while faulty interpretation may have ren-
dered some judgments of the special panels unfair, the limited capacity
for translation also hindered the right to an appeal in several cases. For
instance, an appeal filed in May 2001 was pending for over 18 months,
primarily because a large number of documents needed to be translated
 EAST TIMOR 119

from Indonesian to Portuguese so that the Portuguese-speaking judge

would be able to review the appeal, but were not translated as a result of
the lack of translators.177
Clearly, the lack of adequate resources, both human and non-
human, was a major obstacle to the functioning of the judiciary. While the
United Nations must bear part of the responsibility for this lack, some
observers arguing that it was trying to get by “on the cheap”178 on justice
reforms, the Ministry of Justice itself was more than complicit. An offer
from the US Agency for International Development (USAID) to write
essentially a blank cheque to the judiciary was declined, shortly after
which USAID donated US$8.2 million to various civil society organiza-
tions in the newly formed country.179 The acceptance of an offer of such
magnitude could have alleviated many problems: the mission’s transla-
tion and interpretation capacity could have been increased, a stenog-
rapher could have been hired, the public defence capacity could have been
increased, etc. The rejection of this offer, however, meant the continued
provision of a judicial service which fell short of international standards
in many respects.
Many of the above-mentioned problems led to lengthy pre-trial deten-
tion periods. The inability to have more than one special panel working
at any given time, even when a second one became operational, along
with some of the procedural delays led to a situation where in early 2001
some 700 cases in the category of serious crimes alone had still not been
processed.180 While some suspects were released without trial, many were
kept for a year without a trial. Some defendants were also kept in pre-
trial detention unlawfully, because the investigating judges issuing the
warrants for their detention had no authority to detain these individu-
als; furthermore, some were also held unlawfully because their detention
orders had expired and the judiciary was unable to hear applications for
the extension of their detention orders.181 But even in cases where deten-
tion was legal, the defendants were often unable to access legal represen-
tation for prolonged periods.182 The long detention periods and the lack
of access to defence lawyers were two of the key factors blamed when
over half of the prison population of East Timor managed to escape in
August 2002.183 By August 2003 some of the detainees who had not es-
caped had been kept in pre-trial detention for three-and-a-half years
without a trial date.184

Analysis and discussion

As in the Kosovo case study, the analysis here will consider the impact
which the five elements185 of the UN’s approach had on the likelihood
120 UNITED NATIONS JUSTICE

that the mission would succeed in its efforts to establish a sustainable

legal system. Five sets of questions186 are asked in assessing whether the
approach enhanced or diminished the likelihood of establishing such a
sustainable system, and thus in establishing whether the particular ap-
proach was suited to the task. The section is divided into five subsections,
each of which aims to answer one set of key questions.

Adherence to Fuller’s principles of legality

This subsection focuses on whether the UN’s approach led to a viola-

tion of Fuller’s principles,187 and also on whether the adoption of the
particular approach demonstrated the peacebuilders’ aspiration to be in
compliance with these principles. If a total failure of or gross departure
from any of Fuller’s principles occurred, or if it can be shown that even
where no such failure occurred, the UN’s efforts did not aim to be in line
with these principles, the approach cannot be the appropriate method for
building a sustainable legal system. The discussion begins with an expo-
sition of the ways in which Fuller’s principles were breached, and then
links these breaches to the UN’s approach.
As we have seen, one of Fuller’s principles is the need for authorities to
administer rules as they are announced and publicized. The discussion in
the previous section demonstrated that there were many instances where
UNTAET staff, the local authorities or the judicial appointees failed in
this regard. One of the first and most detrimental failures of this principle
relates to the appointment to the special panels of East Timorese and
international judges who were not versed in international law. Section 23
of Regulation 2000/15 unequivocally required that in selecting the com-
position of the panels, the qualifications of the judges in criminal law and
in international law must be taken into account. While the regulation as
phrased188 appears to leave some space for a judge less experienced in
those areas to sit on a panel, it is clear the regulation requires that in the
“overall” composition of the panels some of the judges have such quali-
fications. Yet, as we saw, East Timorese judges without any knowledge or
experience of international law were permitted to sit on the panels to-
gether with international judges who also had no experience with inter-
national law; it is thus clear that this aspect of the law on the qualification
of judges was administered differently from the way it was intended.
Furthermore, since the initial focus was on hiring exclusively East
Timorese judges, no provision was made for the Transitional Judicial
Service Commission (TJSC), which was responsible for the selection and
recommendation of judges to the TA, to select and recommend interna-
tional judges. However, as it became increasingly clear that relying only
on local judges was not sustainable, especially because of the need for
 EAST TIMOR 121

more experienced jurists for appellate proceedings and eventually also

for the special panels, international judges were hired; some of the first
judicial affairs officers who were working for UNTAET moved into
judicial positions.189 But since the United Nations initially wanted to ap-
point only local jurists, there was no provision in the law for the TJSC to
review and recommend the applications of candidates of non-Timorese
origin.190
While a change in that law would have been necessary for the TJSC to
review and recommend persons of non-Timorese origin for judicial and
prosecutorial posts, the appointment of international jurists to such offices
continued through the regular recruitment procedures for UNTAET,
and thus international jurists were appointed in a similar way as the first
international judges who entered from UNTAET posts. One of the in-
ternational Appeals Court judges, Frederick Egonda-Ntende, points out
that this raised serious questions and doubts about the legitimacy of the
appointment of international judges under UNTAET’s own law.191 Since
UNTAET regulations amounted to laws, the appointment of interna-
tional judges without an amendment to the relevant regulation did in-
deed amount to a failure of congruence between the rules as announced
and as administered.
A further violation of this principle occurred as a result of the judges’
frequent failure to apply international law, or to apply it properly. Regu-
lation 2000/15 required the special panels to apply “where appropriate,
applicable treaties and recognized principles and norms of international
law, including the established principles of the international law of armed
conflict”.192 However, judges’ failure to apply international law or apply
it correctly led to the handing down of very harsh sentences for relatively
low-level perpetrators.193 Furthermore, although the special panels could
use as a source of guidance the jurisprudence of the ICTY and the ICTR,
as well as the work of the International Law Commission and the Pre-
paratory Commission for the International Criminal Courts, throughout
2001 none of the special panels’ decisions contained references to any
international jurisprudence.194 The panels’ lack of knowledge and experi-
ence with international law led to the failure to apply such law or apply
it correctly, which clearly indicates that the special panels did not live up
to the requirements concerning the law to be applied in serious crimes
cases.
Moreover, in one case the presiding judge purposefully chose to dis-
regard the law. The case was that of Victor Alves, a FALINTIL member
regarded as a local hero.195 Alves’s defence had filed a petition for his re-
lease on the grounds that his detention was unlawful, and also that even
if it had not been unlawful, the time limit of detention under Indone-
sia’s Code of Criminal Procedure had expired. Fearing the destabilizing
122 UNITED NATIONS JUSTICE

consequences of an early release of a local hero while pro-Indonesian

militia leaders remained in detention, UNTAET quickly passed Regula-
tion 2000/14, one day before Alves’s court hearing. The regulation retro-
actively legalized all detentions which could have been deemed as
potentially unlawful, and determined that in certain circumstances de-
tainees could be held in pre-trial detention longer than the 110 days
previously permitted prior to the commencement of the proceedings.196
Crucially, a further regulation also made it impossible for an individual
judge to preside in cases that carry a sentence of over five years, which
would have applied to Victor Alves. Understandably, the presiding judge
felt that the regulation amounted to legislative interference designed to
alter his potential decision.197 Disregarding the law, the judge went on to
rule that Alves’s detention was unlawful. As the former prosecutor for
the special panels, Suzannah Linton, put it:

Rather than following the generally accepted practice of recording his concerns
but nevertheless applying the law, the young East Timorese judge took a cal-
culated decision not to apply a law he felt was unjust . . . The first decision to
emerge from the UNTAET administered District Court of Dili is therefore one
where the judge refused to apply the law.198

After this decision, no appeal was possible because even though the
Court of Appeal had been officially established, no judges had yet been
appointed to it, for reasons discussed in the previous section. Thus Alves
was released.
What this case highlights is that the law was not administered as an-
nounced, on three different counts. First was the issue of unlawful de-
tention. Alves’s case is by no means unique here, and had Regulation
2000/14 not retroactively validated all warrants for detention issued by
an investigating judge or public prosecutor prior to 10 May 2000, then
his detention would certainly have been unlawful. But the fact remains
that for a brief period his detention, and that of many other suspects, was
unlawful, not only because the time period allowed for pre-trial deten-
tions had expired, but also because the investigating judge did not have
the authority to issue such warrants: this was the case because Regulation
2000/11 establishing the courts was promulgated in March, by which time
many warrants had been issued by judges appointed in January, and also
because the position of investigating judge did not exist in the Indonesian
criminal system.199
The second failure of congruence between the rules as announced and
as administered is the judge’s purposeful disregard of the law. He was
right in his perception that Regulation 2000/14 was designed to ensure
Alves’s continued detention, and was meant to influence his decision.
 EAST TIMOR 123

However, the fact that he ruled in the way he did shows that the law
was not upheld by those most expected to respect it. And the final fail-
ure of congruence between the rules as announced and as administered
which the case demonstrates is the lack of an appeals procedure, despite
the fact that the law establishing an appeals court had been promulgated
through Regulation 2000/11. According to the law, it should have been
possible for the prosecution to file an appeal not only on the grounds
that the judge disregarded the law which would have validated the con-
tinued detention of the defendant, but also on the grounds that the judge
was not competent to hold the hearing in this case as an individual judge,
also as determined through Regulation 2000/14. However, the lack of
judges to make up the Court of Appeals meant that the laws and proce-
dures could not be administered in the way in which they were intended,
and this violation occurred not just in this case but persisted for a large
part of 2001, affecting many other cases.
A lack of congruence between the laws as determined by UNTAET
and as administered by it also resulted from UNTAET’s mandate to re-
patriate refugees. Militia leaders not only had a strong influence over
these refugees, as discussed, but also held many of them captive in West
Timor; the United Nations unsurprisingly saw cooperation with these
leaders as vital for the return of the refugees. In his efforts to convince
militia leaders to return, UNTAET’s chief of staff made informal agree-
ments with the general prosecutor regarding the prosecution of such
leaders, who then received guarantees about their ability to return to
East Timor frequently for negotiations.200 As a result of these arrange-
ments, some of the early warrants for arrest of some of these leaders were
never executed.201 The fact that these dealings became common know-
ledge across East Timor through community rumours202 was damaging
for the public’s trust in the newly established judicial mechanisms. What
these dealings demonstrate is that one key objective of the mission – the
repatriation of refugees – trumped another key objective of the mission,
namely the prosecution of those who had committed atrocities. They also
demonstrate that prosecutors became involved in what was essentially a
political process, that UN officials were evidently not administering the
laws correctly and that they were thus violating a key legal principle.
There are a few more examples of the ways in which the justice
administrators derogated from the law. It is understandable that the
administration of justice was taking place in very difficult circumstances
– essentially UNTAET had to oversee the creation of a new judiciary
from the ground up; however, the failure to provide transcripts of the
proceedings in court, and the persistent continuation of trials for a pro-
longed period of time in light of this inability to offer adequate means
for an accurate transcript to be provided to either the defence counsel or
124 UNITED NATIONS JUSTICE

the judges, were in violation of Regulations 2000/11 and 2000/30.203 Since

procedural law prescribed that such transcripts must be provided, but
trials continued without them, it is clear that there was no congruence
between the law’s requirements and its administration. Although audio
and video recordings of trials were eventually introduced, the UN’s fail-
ure to ensure that written transcripts of the trials were provided on the
basis of these recordings still meant that the law was not administered
properly. While Regulation 2001/25 did eventually make it legal for re-
cordings of trial proceedings to be offered instead of a written transcript,
the fact remains that for over a year the law on criminal procedure was
breached by the failure of the administration, local or international, to
provide such a written transcript.
The final violation of Fuller’s principle of the need for congruence be-
tween the rules as announced and as administered to be discussed here
can be found in the promulgation of Regulation 2000/14 itself, which as
mentioned saw the retroactive legitimization of detention orders204 and
the derogation from international standards, as enshrined in the ICCPR,
regarding the deprivation of liberty of detainees.205 Regulation 1999/1
made explicitly clear that all laws in the territory would need to be read
subject to international human rights standards, and in particular sub-
ject to, among others, the ICCPR. While the ICCPR’s Articles 9 and 14,
which govern rights on the deprivation of liberty and a fair trial, are not
among the covenant’s non-derogable rights, the grounds upon which one
may derogate from them are very narrow. The provision in the ICCPR
states clearly that one may derogate from the articles only “In time of
public emergency which threatens the life of the nation and the existence
of which is officially proclaimed.”206 However, while the conditions on
10 May 2000, when Regulation 2000/14 was promulgated, were certainly
difficult, it cannot be argued that they constituted circumstances which
threatened the life of the nation; 207 moreover, neither the United Nations
nor the East Timorese Transitional Administration had proclaimed a state
of public emergency throughout the territory.
In light of the fact that Regulation 1999/1 required all laws in the ter-
ritory to be in line with human rights standards, the promulgation of
Regulation 2000/14 amounts to a violation of the rules as announced and
administered on the grounds that a derogation from the right to liberty
occurred in an unlawful fashion, as the prevailing circumstances in East
Timor did not amount to a public emergency that threatened the terri-
tory’s existence. The regulation was an effort on the part of the UN admin-
istration to address a difficult problem about which various organizations,
including the United Nations itself, had expressed growing concerns –
that of unlawful detentions; it was also designed to prevent a potential
crisis that might have ensued with the release of Victor Alves. Regula-
 EAST TIMOR 125

tion 2000/14 frequently refers to the prevailing circumstances in the ter-

ritory as grounds for the extension of detention periods and the deroga-
tion from the right to liberty. However, if the United Nations had deemed
the prevailing circumstances in East Timor to amount to a public emergency,
it ought to have derogated from the relevant ICCPR articles already
in Regulation 1999/1. That it did not attests to the fact it did not view
the situation in East Timor as a public emergency warranting such
derogation – not even at the very beginning of its mission – or at least
that its desire to implement a full catalogue of human rights made it
blind to the need for such derogation. Furthermore, so as not to promul-
gate a regulation that violated a key legal principle, UNTAET needed
to announce a state of emergency in the territory. It did not, and so the
passing of Regulation 2000/14 to suit its political needs and compensate
for some of the errors already made essentially meant that UNTAET
was not adhering to its own laws.
Aside from the above-mentioned failures with regard to the principle
of congruence, there were also various violations of Fuller’s principle that
the law must be clear and understandable. This lack of clarity stemmed in
part from UNTAET’s failure to review the existing laws and strike those
which were incompatible with human rights standards.208 One particular
incident between the UN Police (UNPOL) and a crowd of protesters is
indicative of this lack of legal clarity:209 protesters had gathered in a loca-
tion, but UNPOL declared the gathering illegal; when challenged on the
relevant law that made the protest illegal, UNPOL was unable to recall
whether this judgement was based on a UNTAET regulation or an in-
ternal police directive. A further investigation into the matter revealed
the judgement to have been based on an unofficial translation into Eng-
lish of an old Indonesian law which required demonstrators to have prior
authorization from the Indonesian authorities before staging a protest.
Evidently, the feasibility of this law had not been reviewed, and neither
had its consistency with rights to freedom of expression.
Arguably, the confusion over this law stemmed from the fact that Regu-
lation 1999/1 only requires the striking of laws deemed as incompatible
with international human rights standards, and at first glance this law is
not incompatible with such standards: it is common practice in demo-
cratic societies to apply for a permit to hold a protest, and as such this
law does not appear to violate the right to freedom of speech. However,
to Timorese protesters it would have been clear that during the Indone-
sian occupation this law was designed to curb freedom of expression, so
they felt that with the Indonesian regime gone, they could exercise their
right to demonstrate.
A similar incident occurred when a Japanese activist was arrested in
August 2000 for criticizing Xanana Gusmao, Timor’s former independence
126 UNITED NATIONS JUSTICE

movement leader. After 18 days in detention he was released, and the

TA issued an executive order declaring that defamation is not a crimi-
nal offence and repealing sections 310–321 of the Indonesian Criminal
Code.210 Thus some laws were evidently not in line with human rights
standards and were clear neither to UNPOL nor to the East Timorese.
These incidents were by no means unique, and UNTAET’s failure
to review the laws also resulted in a lack of clarity on the law among
prosecutors and judges, and consequently to their failure to apply laws
consistently and to the application of laws incompatible with human
rights standards.211
As in Kosovo, the general problem of clarity of the legal regime
stemmed from Regulation 1999/1’s requirement that Indonesian laws be
read in light of international human rights instruments. UNTAET’s prin-
cipal legal adviser admitted that “It is difficult for any lawyer . . . to inter-
pret the Indonesian Penal Code and Criminal Procedure Code through
the lens of those international human rights instruments which are now
part of East Timorese domestic law”, let alone for Timorese lawyers who
were not familiar with international law.212 But even if these lawyers
were familiar with such instruments, having to interpret domestic law
through the lens of international law was bound to result in a situation
where it was not always clear what the law was and what law must ap-
ply to a particular case. While the promulgation of the new Provisional
Code of Criminal Procedure improved this situation slightly,213 problems
of clarity nevertheless remained throughout UNTAET’s mandate.
Finally, problems of clarity were also the result of the UN’s promulga-
tion of regulations which were not clear. One example was the confusion
surrounding the post of investigating judge: in January 2000 the United
Nations appointed two investigating judges, even though no such post ex-
isted in the Indonesian criminal system, and initially failed to clarify the
powers and duties of this office.214 When the United Nations eventually
passed Regulation 2000/11 establishing the court system in March 2000,
it determined that “In criminal matters, there shall be at least one judge
assigned as investigating judge at every District Court in East Timor” and
that “The investigating judge shall have the powers defined in the Crimi-
nal Procedure Code and other relevant UNTAET regulations.”215
However, as the applicable criminal procedure code was that of Indo-
nesia, this section was nonsensical because, as already mentioned, there
are no investigating judges in the Indonesian justice system, and there are
also no UNTAET regulations which make any reference to the powers
of an investigating judge.216 So investigating judges were first introduced
into the justice system before courts were established; and even though
the confusions over their role were widely known by the time Regula-
tion 2000/11 was promulgated,217 the regulation still failed to specify
 EAST TIMOR 127

what powers and duties these judges had. This led to a situation where
the procedural rules were unclear, and thus to further confusion within
the justice system.
The discussion of the legal and judicial reform developments in the
previous section hinted at another key violation of Fuller’s principles: the
fact that the publication of the Gazette, which was to be the official way
of publicizing UNTAET’s laws, executive directives and other legislative
acts, was initially irregular and then lapsed entirely in 2001218 meant that
Fuller’s principle that the rules must be made known was violated. While
perhaps an argument can be made that even if the Gazette’s publica-
tion was irregular, the laws were eventually publicized, the same cannot
be claimed for the failure to publish the Gazette for over a year. Even
if UNTAET regulations and other executive and legislative acts did be-
come known in different ways, the public’s expectation after the promul-
gation of Regulation 1999/4 establishing the Gazette was that it was going
to be the main vehicle for the publication of new rules. And since Regu-
lation 1999/4 was never amended, it cannot be assumed that the public’s
expectations changed and another mechanism for publicizing rules ex-
isted. Thus perhaps one of the most important principles of legality was
clearly violated.
We have seen thus far that there were violations of Fuller’s principle of
congruence, his principle of clarity and his principle that the rules must
be publicized. But can these violations be linked to the UN’s approach to
legal and judicial reform? The following few paragraphs will demonstrate
that particularly when it comes to the violations of the first two of these
principles, various elements of the UN’s approach can indeed be linked
to them. First, the problems with the lack of clarity in the law were the
direct result of the UN’s decision to apply from the beginning of the mis-
sion the Indonesian legal codes, and to make their applicability subject
to international human rights standards, prior to reviewing the legislation
– a decision which amounted to the intellectual equivalent of putting the
metaphorical cart before the horse. While some of the obvious problem
laws, such as the death penalty, were stricken in Regulation 1999/1, many
provisions of the Indonesian legal code left questions open as to whether
applying them would run counter to human rights standards. As the ex-
amples of the UNPOL-halted demonstration and the Japanese activist
detained for defamation demonstrate, some of the provisions of that code
did indeed run counter to international standards, but not in a sufficiently
obvious manner as to alarm officials about their applicability.
Shortly after entering East Timor, INTERFET introduced an emer-
gency legal regime based on Indonesian laws, and UNTAET had the
option to continue the application of this legal regime until such time
as it had the chance to review all the Indonesian laws for consistency
128 UNITED NATIONS JUSTICE

with human rights standards, identify potential problem areas and devise
guidelines on the applicability of the law and international standards
as part of the legal regime. Doing so would also have given the United
Nations more time to learn about the workings of Indonesia’s judiciary;
as we saw, though, the failure to learn enough about it led the United
Nations mistakenly to assume that investigating judges existed within the
judiciary. Even if the United Nations wished to introduce the position
of an investigating judge, reviewing the Indonesian legal codes prior to
making them applicable would have made it clear that the UN regula-
tions needed to specify what powers and responsibilities such judges had.
The resultant confusion about these posts was thus avoidable had suf-
ficient time been allowed for a proper review of the Indonesian justice
system and legal codes.
Furthermore, even if the review of the laws, which did not take place
during the mission, had occurred in the first few months as was originally
envisioned, the same problems of clarity would still have existed during
that time period. The key point here is that deciding to establish a legal
regime when it is evident from the outset that there will be points that
need clarification certainly violates the spirit of Fuller’s principle that the
rules must be clear and understandable. As previously mentioned, the
principle of clarity requires not only that the letter of the law be clear and
understandable, but also that the rules be clear to the point where they
can guide the behaviour of the law-enforcement authorities, the judiciary
and the population at large. As demonstrated in this chapter, this was not
the case with the legal regime in East Timor.
Moreover, the UN’s decision to make a full catalogue of human rights
applicable from the beginning of the mission led to many of the above-
mentioned violations of the principle of congruence between the rules
as announced and as administered. Clearly, the United Nations was in a
difficult position in East Timor: while it had to build a new judiciary from
the ground up with limited resources, it also had to process hundreds
of detainees. In the first few months of UNTAET the situation on the
ground was dire; INTERFET had managed to re-establish some security,
but there were nevertheless still instances of reprisal violence.219 Over 70
per cent of the infrastructure had been destroyed and there was a law-
and-order vacuum; while INTERFET’s legal regime and the Detainee
Management Unit alleviated a part of that problem,220 the situation was
still an emergency to all intents and purposes, even if the existence of the
nation was no longer at risk.
Given these circumstances, the UN’s approach of applying a full hu-
man rights catalogue, including specific reference to the fact that all
persons working in public office must adhere to, among others, the
 EAST TIMOR 129

ICCPR, proved to be detrimental. It was detrimental particularly from a

legal perspective, because it led to many of the violations of the princi-
ple of congruence: the circumstances were such that longer permissible
periods of pre-trial detention were needed than those allowed by the law
and international standards, since the capability to process all the cases
within the required time period simply did not exist. When the United
Nations eventually passed Regulation 2000/14 and attempted to derogate
from Articles 9 and 14 of the ICCPR, it was not only acting against its
own initial decision to observe a full catalogue of human rights standards
within the territory, but also derogated from the rights set out in those
articles on grounds which were not permissible. Similarly, the UN’s deci-
sion to apply the Indonesian legal code from the beginning of the mission
meant that the 72-hour limit placed on the period after which suspects
must be released if they have not seen a judge, and the 110-day limit on
pre-trial detention before proceedings begin, also had to be observed.221
The adoption of these laws meant once again that when the fledgling ju-
diciary was unable to handle the cases in the specified times, the principle
of congruence was violated.
As the following section will demonstrate, many of the violations of
judicial norms were the result of the UN’s decision to involve local ac-
tors in the judicial process from the beginning of the mission and to the
fullest extent possible, which in the case of East Timor the United Na-
tions deemed to be the complete handover of control of the judiciary to
local officials. But before we discuss the violations of judicial norms, it is
important to highlight that this approach also violated Fuller’s principle
of congruence. A prominent violation in this respect was highlighted in
the discussion of the Alves case, and in particular the judge’s decision
purposefully to ignore the law. Linton concludes that the problem lay in
the fact that “having appointed novices to such heavy responsibilities,
UNTAET then failed to provide them with adequate training and men-
toring”.222 But her conclusion tells only half the story, because even if
adequate training and mentoring had been provided, the fact remains that
such training and mentoring would have taken place while the respective
judge was already in office, and not prior to it, thus still leaving the door
open for inexperienced judges to apply the law wrongly or ignore the
laws that did not suit them.
Thus it is not difficult to see how the UN’s approach led first to the
handover of judicial control to local authorities, and then to the early
appointment of an inexperienced judge, who as a result of this lack of
experience and training, and the position he nevertheless held, violated
a key legal principle. Had judicial control not been handed over to the
East Timorese so early on, the judge could have been reprimanded or
130 UNITED NATIONS JUSTICE

removed and a mistrial could have been declared. However, as UNTAET

had handed over the reins, it did not wish to interfere with this judicial
decision and the work of the Ministry of Justice.
Finally, the UN’s desire to address, or appear to address, the serious
crimes committed during the conflict from the earliest stages of the mis-
sion led to a situation where this objective conflicted with another key
objective, namely the repatriation of refugees. The result of this clash was
that the prosecution of some individuals was put on hold, and warrants
of arrest were not carried out as the law required. Essentially, the policy
decision to pursue the perpetrators of atrocities early on did not leave
sufficient time for the consideration of the policy’s political repercussions
and an evaluation of the UN’s own political will for such an undertak-
ing. This resulted in a failure to devise a clear and coherent prosecution
strategy which would have reflected the political reality on the ground,
the various objectives of UNTAET’s mandate and the UN’s political will.
The outcome was an approach which led to relatively random prosecu-
tions of small-time perpetrators, and the perception among the popula-
tion that justice was not done, in terms of both the failure to prosecute
the higher-ranked commanders in Indonesia and the unfairness of the
random prosecution of some lower-ranked officials but not others. Im-
portantly, the approach led to a situation where UNTAET’s leadership
felt the need to compromise its own laws in order to achieve its political
goals, thereby violating the key legal principle that the laws must be up-
held as promulgated.
Furthermore, the policy of pursuing prosecutions led to a situation
where Timorese and international lawyers appointed to serve as judges
on the special panels were allowed to participate in the proceedings even
though they were not familiar with international law, as the relevant reg-
ulation indicated they needed to be. The United Nations was set in its
approach, and this led to the decision to go ahead with the proceedings
even if the judges’ appointment to the panel meant that the legal require-
ment for the consideration of their qualification had to be ignored. Their
appointment in turn led to the situation where they either failed to apply
international law or failed to apply it correctly, even though Regulation
2000/15 had specifically set out that international law must apply in seri-
ous crimes cases. And finally, the desire to prosecute the perpetrators of
atrocities led the United Nations to continue with the trials even after it
realized that various rules of procedure were being broken, such as the
requirement for the provision of written transcripts of the proceedings.
Once again, we see that this aspect of the UN’s approach to legal and
judicial reform led it to several important violations of a key Fullerian
principle.
 EAST TIMOR 131

Compliance with basic judicial norms

This subsection focuses on the question of whether any violation of the

judicial norms223 resulted from any of the five elements of the UN’s ap-
proach. It will first outline how some of the 10 judicial norms were vio-
lated, and then demonstrate how it was in particular the UN’s approach
of involving local actors early in the judicial process to the fullest extent
possible, as well as its insistence on pursuing serious crimes trials, which
led to most of the violations.
While there were virtually no problems with the lack of independence
of judges and also no problems of impartiality in East Timor, as there
were in Kosovo, the discussion of the various developments has high-
lighted several key violations of judicial norms. The first of these, which
can be linked directly to the approach of involving local actors early in
the judicial process, was the lack of provision of adequate defence. Firstly,
the UN’s desire to involve local actors in the judicial process early on
led the Office of the Principal Legal Adviser to take this to the extreme
and recommend the complete handover of the task of public defence into
local hands.224 The hired public defenders were selected from a group of
local jurists whose only legal experience was to have attended law school,
and who were the least capable from that group.225
Apart from lacking experience, the small number of available defend-
ers meant they were unable to meet their clients frequently and had to
defend more than one client in the same case, opening up the potential
for a conflict of interest; moreover, the caseload these defenders had to
contend with meant less preparation time for each case.226 In compari-
son to the UN prosecutors, these defence counsellors were novices, and
consequently the quality of the defence provided in the early cases vio-
lated the defendants’ right to effective counsel.227 As one observer put it:
“What justification can there be that a tribunal to which the United Na-
tions lends its name provides outstanding international defence counsel
to Rwandan or Serb defendants and novice law school graduates with no
trial experience to Timorese accused of similar crimes?”228
Furthermore, the premature decision to hand over full ownership of
the judicial process into local hands resulted in a situation where in-
experienced local actors were incapable of managing this task without
allowing politics to affect their decisions: as we saw, after the United Na-
tions and various NGOs recognized that there was a lack of adequate
defence, the Ministry of Justice turned down or stalled many of the offers
of funding for international defenders or mentors for the existing defend-
ers; similarly, the Justice Ministry’s obdurate refusal to approve judicial
appointments of non-Portuguese-speaking jurists for the appellate level,
132 UNITED NATIONS JUSTICE

along with the difficulty of finding enough and sufficiently qualified lo-
cal jurists to staff the appeals panel, led to a situation where the appeals
court was not functioning for over one year, and thus clearly to a violation
of the right to an appeal. Essentially, the ministry allowed language poli-
tics to get in the way of the provision of the best possible judicial service.
Even though a few international defenders and mentors were eventu-
ally hired, some of them were not suited for their posts, and the inter-
national defenders were not of the same standard as the international
defence provided in other UN ad hoc tribunals. This in turn meant that
another judicial norm was violated, namely that of delivering justice
across different judicial bodies in a consistent manner. While this norm
usually should only apply within a national judicial system, given that
the special panels were a hybrid between national and UN ad hoc courts,
the norm must also apply, and thus the manner in which the United Na-
tions delivers justice through its courts in East Timor should be similar
to the manner in which it delivered justice in, for instance, the ICTR and
the ICTY. The special panels were part of a community of international-
ized courts and tribunals that attempted to enforce international criminal
law, and as such justice ought to be delivered equally in all such judicial
bodies.229 While it is not difficult to see how the UN’s approach directly
contributed to violations of judicial norms, particularly as a result of the
decision to hand over judicial powers to the local authorities too soon
and the appointment of inexperienced lawyers to act as defence coun-
sel, the perception that one must involve local actors early in the judicial
process, and that handing over ownership of this process sooner rather
than later is beneficial from the perspective of creating a sustainable
legal system, contributed to many more judicial violations, especially in
combination with the UN’s perception that it should prosecute serious
crimes early on in the mission.
Many of the problems of the judicial system, such as the failure to pro-
vide written transcripts, the frequent lack of adequate translation and
interpretation during judicial proceedings and the slow progress of the
trials leading to prolonged pre-trial detention periods, resulted from a
lack of funding and adequate resources. However, while this link is more
immediately apparent, few links have been established between these
problems, the UN’s approach to legal and judicial reform, UNTAET’s
obdurate unwillingness to alter its approach even in the face of over-
whelming evidence that the judicial process did not live up to interna-
tional standards and the resultant failures of judicial norms.
It is indeed true that the lack of funding and resources was the cause,
for instance, of the failure to provide adequate transcripts during pro-
ceedings: better funding could have seen the appointment of professional
 EAST TIMOR 133

stenographers, who in turn could have produced the written transcripts

needed for appeals from the trials to be filed; it could have paid clerks
to transcribe the recordings of the proceedings; and could also have seen
the hiring of more professional interpreters and translators, very much
needed so that the proceedings and judgments could be fair. However, as
we saw, the Ministry of Justice turned down substantial offers of external
funding from NGOs and governmental aid agencies, once again because
of domestic political considerations. Evidently, the UN’s desire to involve
local actors in the judicial process early on backfired, in that those who
were handed ownership over the judicial process refused to accept the
funds so sorely needed to make the judicial system function according to
international standards, and thus this aspect of the UN’s approach had a
direct impact on the violations of key judicial norms.
However, it was the UN’s desire at least to appear to prosecute the
perpetrators of serious atrocities from the early stages of the mission
which contributed more to the violations of judicial norms than even
the premature handing over of the reins of the justice system. The initial
reasons for failing to provide written transcripts, hindering the appeals
process; failing to provide adequate translation during trials, making the
judgments based on these translations potentially unfair; having a back-
log of cases, leading to a failure to hear cases within a reasonable amount
of time, etc., may have indeed been related to problems of resources and
funding. But the UN’s obdurate continuation with the trials under these
circumstances, despite warnings and its own recognition that the trials
were failing to live up to international standards, led to a situation where
violations of judicial norms continued to be perpetrated. If UNTAET
was unable to guarantee fair trials which did not violate very basic ju-
dicial norms, the right course of action would have been to discontinue
them and search for other solutions.
By 2003, three years after the serious crimes prosecutions began, the
political climate in East Timor was beginning to shift in favour of amnes-
ties as a result of the inadequacies of the judicial process.230 But many
unfair trials had already taken place by then, and a consideration of,
for instance, amnesties was needed much sooner and at the initiative of
UNTAET. However, as discussed in Chapter 1, from 1997 onwards the
United Nations wanted to move away from amnesties and impunity for
serious atrocities; thus it is not difficult to see how the UN’s obdurate
continuation with its approach of pursuing prosecutions contributed to
the violations of the above-mentioned judicial norms. It allowed many
such violations to take place which, after the UN’s realization that there
were indeed serious flaws with the judicial system, can no longer be sim-
ply blamed on resource and funding problems.
134 UNITED NATIONS JUSTICE

The incorporation of human rights principles as part of the legal

framework

As was the case in Kosovo, none of the five elements of the UN’s ap-
proach led to a failure to incorporate the 10 basic human rights princi-
ples.231 UNTAET succeeded in incorporating these principles as part of
the legal framework by stating that the applicable laws would have to be
interpreted through the lens of various human rights instruments.
However, the incorporation of a full catalogue of human rights within
the legal framework early on did, as we saw, lead to a host of violations
of legal principles and judicial norms.

The legal and judicial framework and its acceptability within the
community

As discussed, a legal system cannot be regarded as acceptable within

a society if there is either major public opposition or major opposition
from within the legal community to that system, if such opposition leads
to substantial changes to the legal framework or judicial structure or if
there is a major competing parallel legal or judicial framework in opera-
tion.232 This subsection focuses on answering the question of whether any
of the five elements of the UN’s approach led to any of these factors
which indicate that the legal system was not acceptable.
As we saw, while UNTAET’s approach of applying the Indonesian
legal codes from the beginning of the mission was not rejected in the
same way as the application of Serbian law was rejected in Kosovo, the
application of Indonesian law was not only unpopular, but eventually
also led to the major judicial rift between the special panels and Dili Dis-
trict Court on the one hand and the Court of Appeal on the other, as well
as to a significant political crisis. As discussed, if major competing parallel
legal frameworks or judicial mechanisms operate in a territory during or
shortly after a UN mission, then the legal system as established cannot
be deemed to be acceptable. This was the case when the Court of Ap-
peal decided that Portuguese law was applicable, and began applying it to
cases at the same time as the hybrid tribunals and the Dili District Court
were applying Indonesian law.
The failure in this regard is arguably the result of the UN’s belief that
the initial legal framework must be based upon prior legal codes from
the beginning of the mission. It should be stressed here that the appli-
cation of Indonesian laws per se was not the problem: INTERFET had
already drafted an emergency legal framework on the basis of laws em-
anating from Indonesia’s criminal code, a decision it based on the fact
that in requiring the continued application of prior legal codes, Geneva
 EAST TIMOR 135

Convention IV intended to avoid retrospectivity and ensure that the laws

were familiar to the population.233 Thus, even though Portuguese law ap-
plied in East Timor de jure, the fact that Indonesian laws were applied
for nearly 25 years de facto made the selection of an emergency legal re-
gime on the basis of Indonesian laws the sensible choice.
However, in applying Indonesian laws from the beginning of its mis-
sion, UNTAET failed to appreciate the difference between the emer-
gency legal framework which INTERFET had established for a limited
period of a few months, so as to restore law and order, and the transi-
tional legal framework which would be in place at least for the duration
of its mission, and possibly beyond that time frame. Believing that apply-
ing Indonesian laws would be appropriate was not a wrong assumption;
the wrong assumption was that the transitional legal framework could be
selected from the beginning of the mission, before UNTAET had had the
chance to consult local actors as to whether the Indonesian legal code
would be acceptable, and before allowing a public debate on the matter
of whether Indonesian, Portuguese or other laws should be used.
Such a debate would have been highly beneficial, because while prag-
matism is likely to have won the day, as most lawyers found in East Timor
were trained in Indonesian law, it would have given the public and the legal
community the sense that the decision over the law was theirs, thereby
providing them with a sense of ownership over the judicial process and a
feeling that the decision was not externally imposed. Furthermore, once a
decision on the applicable law was taken publicly, the likelihood of rogue
jurists going against it would have decreased. And finally, such a debate
is likely to have revealed any potential problem candidates for judicial
posts, and would have given UNTAET the opportunity to consider more
carefully the appointment of certain individuals.
It should be noted, however, that even though there was some initial
opposition to the application of Indonesian laws and some jurists were
angered by the promulgation of certain regulations, such as Regulation
2000/15, these incidents by themselves do not amount to major opposi-
tion, neither from the public nor from the legal community, to the legal
framework or institutional structure as set up. While the application of
Indonesian laws was unpopular, it was accepted for pragmatic reasons; as
such, these incidents cannot be considered to have substantially detracted
from the goal of establishing a sustainable legal system. However, the ac-
tions of the rogue judges from the Court of Appeal did, in that they led
to a situation where a parallel legal framework applied for some time.
The fact that in 2006 the legal system initially based on Indonesian
laws, and eventually altered through the introduction of other transi-
tional codes, was replaced by civil and penal codes based on Portuguese
law234 does serve as an indication that the UN-introduced system did
136 UNITED NATIONS JUSTICE

not take root in the society. While this change occurred four years after
UNTAET’s mission ended, it came only one year after the special panels
ceased to operate in Timor-Leste, and it was a fairly substantial change to
the legal framework that was in operation until then. UNTAET’s failure
to put in place a long-lasting legal framework cannot be blamed directly
on any elements of the UN’s approach, since any sovereign state has the
right to alter its legal codes as it sees fit; but perhaps an earlier recogni-
tion that the nation favoured Portuguese legal codes would have led the
United Nations to encourage their introduction instead of any other tran-
sitional legal codes, thereby contributing sooner and more directly to the
establishment of a sustainable legal system.

Legal and judicial reform and its security-related implications

The final question to be asked in relation to the UN’s legal and judicial
reform efforts is whether any of the five key elements of its approach
can be linked to any violence in the territory once the mission began,
whether it aggravated any prior tensions which had led to violence in the
past and whether it created new conditions which could have potentially
led to a resurgence of violence in the territory. While there is clear evi-
dence of reprisal violence in East Timor after the conflict ended,235 this
was relatively short-lived and on a small scale. Unlike in Kosovo, there is
no evidence to suggest that any of this violence was the direct result of
the UN’s reform efforts. However, the UN’s approach did lead to a situ-
ation which slightly increased the potential for a resurgence of violence
in East Timor: the reference here is to the prison break in August 2002,
when half of East Timor’s prison population escaped. Academics blamed
the prison break on the long detention periods and the lack of access
to defence lawyers,236 and as argued, these two failures can be linked to
the UN’s approach. The premature return of a large number of detainees
into the community had the potential to increase criminality and also to
lead to reprisal violence against former enemies, witnesses who had given
evidence against these detainees and the individuals responsible for their
detention.

Conclusion
As this chapter has demonstrated, the UN’s approach to legal and ju-
dicial reform detracted from its aim of establishing a sustainable legal
system in East Timor in several important respects: in essence, it led to a
number of violations of Fuller’s principles of legality and of key judicial
norms, to the temporary split of the judiciary into two opposing camps
 EAST TIMOR 137

and to a situation which had the potential to lead to increased levels of

violence.
Perhaps most detrimental to the UN’s goal was its desire to involve
local actors in the judicial process from the beginning of the mission. As
we saw, the principal legal adviser’s decision to hand over the responsi-
bility for judicial administration to locals, along with the UN’s decision
to include local actors in the judicial process as jurists, had many nega-
tive consequences. Firstly, appointed officials were insufficiently qualified
for their posts, particularly not for the special panels where knowledge
of international law was essential, leading them to apply the law incor-
rectly. Secondly, public defenders’ lack of experience and heavy caseload
meant they were unable to provide effective defence.237 Thirdly, the lack
of qualified individuals meant that many key posts could not be filled
quickly enough, leading to significant delays to trials, a large backlog of
cases and a failure to uphold the right to an appeal.
The initial focus on appointing only local jurists failed to account for
the possibility that international jurists might need to be hired eventu-
ally; when international judges and defence counsellors were drafted in,
the UN’s failure to amend the relevant legislation led to the unlawful
employment of such individuals. Finally, the premature handing over of
ownership of the judicial process to the Timorese Justice Ministry placed
local justice officials in a position to block crucial appointments and
funds, which they did; such funds and appointments, however, would have
alleviated many of the problems of the legal system. Thus while some
of the judiciary’s resource and financial problems can be blamed on the
UN’s failure to provide them, many can be blamed on the UN’s decision
to hand over ownership of the judiciary to local actors from the begin-
ning of the mission.
Also detrimental to the establishment of a sustainable legal system was
the UN’s perception that impunity must necessarily end, and that am-
nesties or other policy options were no longer desirable. This perception
led to an approach which failed to achieve the desired justice for past
atrocities which Timorese victims’ groups demanded. In the first instance,
justice was not blind in the case of the special tribunals: prosecutors and
other UN officials looked the other way when it came to pursuing pro-
independence militia leaders who were seen as politically indispensable
for refugee returns. Furthermore, neither UN nor Timorese leaders were
prepared to rock the Indonesian political boat. From the UN’s perspective,
stability in the region depended on Indonesia’s political stability, and so it
was unprepared to back even its own prosecutors when it came to charging
high-level Indonesian military officials implicated in bearing ultimate re-
sponsibility for the atrocities. Even though it was evident that the Jakarta
show trials were not undertaking the desired prosecutions,238 the United
138 UNITED NATIONS JUSTICE

Nations was content with the continuation of a random prosecution

process which saw the charging of certain low-level perpetrators but not
others. The fact that such a system was regarded as unfair by those who
had been prosecuted for crimes and those who demanded justice for the
atrocities is unsurprising.
This pursuit of what appeared to be a cover for an end to impunity,
rather than real justice, in spite of the evident shortcomings of the system,
such as the lack of an adequate translation and interpretation service,
the lack of written transcripts, the lack of judges and adequate defence
counsel, the lack of an adequate appeals procedure and the backlog of
cases as a result of the slow proceedings, led to various violations of legal
principles and judicial norms. While resource and funding problems were
indeed at fault for many of these shortcomings, the continuation of the
trials, rather than a consideration of a change to the approach, directly
contributed to the failures to provide written transcripts, the right to an
appeal, the right to adequate defence, the right to interpretation and the
right to a trial within a reasonable amount of time. Finally, the decision
to pursue prosecutions without having an adequate judicial system also
meant that many detainees were kept in pre-trial detention for periods
which are unacceptable under international standards.
The UN’s approach of applying previously applicable legal codes from
the beginning of the mission led it to choose the Indonesian legal codes
as the applicable law. But its failure to consult local actors and organize
public debates on the choice of law eventually led to a split in the judi-
ciary and the application of parallel legal frameworks. This split had the
potential to undermine or cancel out over three years’ worth of judicial
reform efforts, simply because the choice of law issue had not been ad-
dressed properly at the beginning of the mission. Furthermore, the deci-
sion to implement Indonesian legal codes prior to reviewing their content
for consistency with human rights standards led to a situation where
the law-enforcement authorities and local jurists were unclear as to the
applicability of certain laws; thus, as with Kosovo, the UN’s decision to
implement the previously applicable laws early on led to the creation of
a confusing legal regime.
The decision to apply a full human rights catalogue early on was also
legally detrimental. International human rights standards required that
pre-trial detention periods be shorter than those the fledgling judicial sys-
tem was able to offer; applying such standards too soon not only led the
United Nations to violate them, but also to the UN’s legally dubious deci-
sion to derogate from them under circumstances which did not allow for
such derogation. Furthermore, this derogation was aimed at preventing
the release of a serious crimes suspect and amounted to executive inter-
ference with the judiciary, which sets a bad example for good governance.
 EAST TIMOR 139

Unsurprisingly, the judge unlawfully ignored the relevant regulation, ar-

guing that the continued detention of the individual in question violated
the suspect’s human rights. As in Kosovo, the initial implementation of
a more limited human rights catalogue, and the specific derogation from
articles which set guidelines on the period of pre-trial detention, would
have prevented this violation of the principle of congruence between the
rules as announced and as administered.
Finally, while the approach of establishing a regular court structure
from the beginning of the mission led to the least number of judicial
problems, it nevertheless contributed to the creation of the large back-
log of cases and the consequent problem of prolonged pre-trial detention
periods: UNTAET’s focus on the establishment of a full court system led
its officials to ignore the need for a more immediate and temporary ju-
dicial arrangement and to a situation where for two months – between
7 January, when the United Nations appointed the first jurists,239 and 6
March, when the courts were established – the INTERFET detainees
who had been handed over to UNTAET were not brought to trial. While
this did not violate any laws regarding the time period during which de-
tainees may be held in pre-trial detention, because at that point no lim-
its had been broken, it did clearly contribute to the eventual backlog of
cases, as a result of which detainees eventually suffered prolonged and
illegal pre-trial detention periods. Thus a more temporary judicial arrange-
ment might have offered a practical solution to the immediate detainee
problem.
While the lack of resources and funding, and managerial problems, as
reported in various international organization and NGO reports, partly
explain the multitude of difficulties which the fledgling legal system ex-
perienced, these factors fail to account for the more fundamental root
of the problems: as in Kosovo, the answer as to why the UN’s approach
to legal and judicial reform led to the above-mentioned violations of
legal and judicial principles and norms, and to the establishment of a
legal system that was marred by so many problems, lies in the fact that
the approach either aggravated or failed to strike the right balance be-
tween the key tensions at the heart of the UN’s governance operation.
The first tension related to UNTAET’s need to balance demands for
order and security on the one hand and justice on the other; and the
second tension required UNTAET to balance its mandate to govern the
territory to a high standard with its need to empower the local commu-
nity through local participation in or ownership of institutional processes,
thereby helping to establish locally sustainable institutions.
Peacebuilders concluded regarding the UN’s approach to justice
sector reforms in Kosovo and East Timor that various tasks would have
to be carried out from the beginning of the mission and to the fullest
140 UNITED NATIONS JUSTICE

extent possible. This meant that human rights standards would not only
have to be observed, but that all laws would have to be interpreted
through the prism of a full catalogue of human rights; that local indi-
viduals would not only become involved in the judicial process, but that
they would control the justice ministry, would be solely in charge of
public defence and would work as judges, despite their lack of experi-
ence. Furthermore, it meant that previously applicable legal codes would
not only guide legal reforms, but would become the applicable law. And
finally, it meant holding to account those responsible for perpetrat-
ing gross atrocities through hybrid courts within the national judicial sys-
tem, since an international tribunal, which would have guaranteed the
highest standards of justice, was regarded as financially and politically
unfeasible.
As it did in Kosovo, this approach confused the ends with the means,
and failed to ease the above-mentioned tensions. Firstly, UNTAET’s de-
cision to hand ownership over the judicial process to local jurists and to
staff judicial posts with inexperienced local lawyers from the beginning
of the mission entirely failed to address the tension between the need for
governance, a task the United Nations was mandated with, and the need
for local empowerment; instead of aiming to strike a careful balance be-
tween these opposing tasks, this approach not only ignored the tension
but actually aggravated it. Even though the United Nations initially em-
powered local actors to take charge of judicial affairs, it nevertheless pro-
ceeded to pass a regulation which was designed to influence the judicial
process, and which was interventionist. Demonstrating to local actors that
the executive can interfere with the judiciary to influence the outcomes
of the judicial process does not set the type of example needed when
aiming to establish a sustainable legal system.
Similarly, empowering locals with the running of judicial affairs but
then failing to consult them on key alterations to the judicial structure
and legal framework, as was the case when the United Nations wished
to promulgate Regulation 2000/15, establishing the special panel for seri-
ous crimes, and Regulation 2000/30, establishing the transitional rules for
criminal procedure, inevitably led to hostile reactions from local jurists.
High-level judicial officials were upset at not having been consulted prior
to the promulgation of Regulation 2000/15 despite the fact that the law
required that they be consulted.240 And when the United Nations showed
local jurists a draft of the transitional code of criminal procedure a few
days before it was meant to be made law, these jurists, who had not even
been consulted at the drafting stage, decided to reject it and requested
major alterations – not because there were substantial flaws in it, but be-
cause they felt angry about having been disempowered by the process
by which this regulation was created.241 The resultant difficult relations
 EAST TIMOR 141

between the United Nations and local authorities, who became suspicious
of the United Nations, were to be expected.
The premature empowering of local actors, in terms of both owner-
ship of the judicial process and employment within the judiciary, meant
the United Nations was unable to achieve the high standards of justice
which the mission required, in part because these local actors proceeded
to block various international initiatives aimed at rectifying the problems.
Thus instead of easing the tensions between these two divergent objec-
tives, the UN’s approach only aggravated them. As with Kosovo, the early
introduction of international judges and prosecutors, with a gradual in-
crease in the number of local jurists operating within the judicial system,
would have had the potential to prevent many of the violations that did
occur: it would have provided sufficient time to train and mentor some
of the local jurists, and introduce them to the human rights laws which
they had to apply, and would ultimately have prepared them better for
ownership of the process, thereby creating a more solid foundation for a
sustainable legal system.
The UN’s approach of using previously applicable laws as the initial
legal framework also failed to strike the right balance between interna-
tional governance and local empowerment. While UNTAET was pre-
pared to hand over ownership of the judicial process early on, it seemed
oblivious to the fact that the involvement of local actors in the selection
of the law was important. By failing to strike the right balance at the
right time between international leadership on this matter and local in-
volvement in the process, the United Nations created the unsatisfactory
situation where a matter that needed to be publicly debated early on
was not debated, and this led to a political and judicial crisis. The United
Nations had the simple option of continuing to apply the emergency legal
code implemented by INTERFET until the matter of the applicable law
had been publicly discussed and decided; its failure to do so had evident
negative repercussions.
A further tension in UN governance operations, as mentioned above, is
between the need to establish order and security and the need to do so
within a framework of internationally recognized human rights standards,
while also aiming to educate the local population about human rights and
seek justice for past atrocities. A mission aiming for success would try
to ease or resolve this tension, so as to succeed at both its security-
related responsibilities and its justice- and rights-related tasks. But the
UN’s approach of incorporating a full catalogue of human rights from
the beginning of the mission failed to strike the right balance between
the two goals. In particular the failure to derogate in Regulation 1999/1
from the provisions regarding the right to liberty as enshrined in Articles
9 and 14 of the ICCPR led to many of the problems.
142 UNITED NATIONS JUSTICE

The failure to recognize officially that the circumstances in East Timor

warranted such derogation meant that the United Nations set unreason-
ably high expectations about what was achievable in terms of standards
in the judiciary. Instituting such rights early on meant that for a while the
United Nations itself was in breach of them, as it was unable to process
cases rapidly enough. However, the United Nations was unwilling to free
many of the detainees, and particularly not high-profile individuals whose
release might have caused tensions to flare up or resentment leading to
calls for the release of other detainees from opposing groups. When the
United Nations eventually saw it as necessary to derogate from the right
to liberty, allow for longer pre-trial detention periods and retroactively
legitimate detentions which were illegal, it was in breach of rights and the
law, since the circumstances at that stage no longer mandated such dero-
gation, as per the ICCPR, which the United Nations had to uphold. The
initial derogation from certain human rights provisions, the introduction
of a more limited human rights catalogue and the gradual reintroduction
of rights as the overall security situation improved and judicial capacity
grew would have struck a better balance between the need for order, and
the consequent need for prosecution of criminals, and the need for rights.
The problem with the lengthy pre-trial detention period highlights a
tension which is particular to justice sector reform, namely the need for
accountability on the one hand and the need to deliver justice in accord-
ance with human rights on the other. The United Nations found itself in
a situation where the victims of violence, as well as other members of
the community, demanded accountability for past atrocities; it had itself
decided upon an approach that would seek to end impunity. However,
its dilemma was that while there was a demand for accountability, the
United Nations also had to deliver justice in accordance with fair trial
standards, which was not an easy undertaking given that it was establish-
ing a new judiciary from the ground up. The method it chose – trials in
hybrid courts – did very little to balance the tension between these two
demands, and in fact achieved neither of the goals: the trials did little to
satisfy local demands for justice, as most of those tried were relatively
low-level perpetrators, and the standard at which these trials were held
fell short of international fair trial standards.
Arguably, the UN’s approach was indeed intended to balance the need
for order and the demand for justice: by not pursuing the perpetrators
who had fled to Indonesia or trying high-level Indonesian military offi-
cials, the United Nations wished to maintain regional stability and refrain
from upsetting the fragile relations between Indonesia and its new neigh-
bour; and by trying some of the perpetrators caught in East Timor, the
United Nations tried to show that it wanted to put an end to impunity,
and perhaps even to set some sort of example that amnesties would no
 EAST TIMOR 143

longer be tolerated. However, while order and security were maintained,

justice was evidently not done. Once again, the UN’s approach failed to
strike the right balance between the competing demands, leading to the
pursuit of what amounted to unfair trials. A different approach, focused
on an alternative justice mechanism, as will be discussed in the next
chapter, would have helped to balance this tension better, and could have
prevented many of the problems.

Notes
1. For more on the colonial history of East Timor see Encyclopaedia Britannica Online,
available at www.britannica.com/nations/East-Timor; for a good overview of East
Timor’s conflict with Indonesia see Martin (2001); Greenless (2002).
2. Martin (ibid.: 15).
3. Ibid., p. 16.
4. Ibid.
5. Ibid.
6. Ibid.
7. See, for instance, UN Security Council (1975, 1976).
8. Kondoch (2001: 247).
9. Katzenstein (2003: 248); the statistic of 200,000 includes thousands who died in forced
resettlement camps as a result of lack of food and medicine.
10. Kondoch (2001: 247).
11. Katzenstein (2003: 248).
12. Matheson (2001: 81).
13. Martin and Mayer-Rieckh (2005: 105).
14. Ibid., p. 107.
15. Katzenstein (2003: 249).
16. Linton (2002: 104).
17. See UN Security Council (1999c); on this see also Katzenstein (2003: 249).
18. Katzenstein (ibid.).
19. For a good overview of the UN’s administration of East Timor see Ruffert (2001);
Stahn (2001). For some lessons learned from UNTAET see Vieira de Mello (2000). For
critiques of the mission see Chopra (2000); Beauvais (2001); Wilde (2004).
20. See UN Security Council (1999e).
21. Ibid., Article 6.
22. Ibid., Article 1.
23. Pritchard (2001: 185); on this see also UN Security Council (2000a: paras 40–62).
24. UN Security Council (1999e: para. 39).
25. UNTAET (1999b). Caplan (2005: 94–95) writes that “The NCC comprised seven repre-
sentatives of the National Council of the Timorese Resistance (CNRT); one from the
Catholic Church; three from pro-autonomy groups: the Forces of the East Timorese
People (BRTT), the Timorese Nationalist Party (PNT), and the Forum for Unity, De-
mocracy and Justice (FPDK); and four UNTAET representatives.”
26. Similar councils were also established at the municipal and district levels in East
Timor, however, they ceased to function when East Timor gained its independence in
2002; see Caplan (ibid.: 94).
27. UNTAET (2000e).
144 UNITED NATIONS JUSTICE

28. Caplan (2005: 100).

29. Ibid.
30. It should be noted, however, that the members of the council were appointed by the
TA.
31. For more on the relative merits of the co-administration model in East Timor see
Caplan (2005: 99–108); Vieira de Mello (2000, 2001).
32. See UN Security Council (2002).
33. See UNTAET (1999a), section 3.1; Strohmeyer (2000: 267) makes this point.
34. Australia was one of the major exceptions in the international community: it had rec-
ognized East Timor as an integral part of Indonesia in 1989.
35. Strohmeyer (2000: 267); Chesterman (2004: 170 n. 56) also highlights this point.
36. Mutatis mutandis is a Latin phrase meaning “that having been changed which had to
be changed”, or more commonly “with the necessary changes”.
37. The relevant wording of section 3.1 on the “Applicable Law in East Timor” of
UNTAET (1999a) reads: “the laws applied in East Timor prior to 25 October 1999
shall apply in East Timor insofar as they do not conflict with [international human
rights] standard[s] . . . the fulfilment of the mandate given to UNTAET under United
Nations Security Council Resolution 1272 (1999), or the present or any other regula-
tion and directive issued by the Transitional Administrator.”
38. Chesterman (2004: 170).
39. The wording of section 2 on “Observance of Internationally Recognized Standards” of
UNTAET (1999a) is slightly more detailed than that of section 2 of UNMIK (1999c)
in that it refers particularly to the international instruments to be taken into consid-
eration when observing the international standards on human rights. The regulation
states that: “In exercising their functions, all persons undertaking public duties or hold-
ing public office in East Timor shall observe internationally recognized human rights
standards, as reflected in particular in: The Universal Declaration on Human Rights
of 10 December 1948; The International Covenant on Civil and Political Rights of
16 December 1966 and its Protocols; The International Covenant on Economic, So-
cial, and Cultural Rights of 16 December 1966; The Convention on the Elimination
of All Forms of Racial Discrimination of 21 December 1965; The Convention on the
Elimination of All Forms of Discrimination Against Women of 17 December 1979; The
Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or
Punishment of 17 December 1984; The International Convention on the Rights of the
Child of 20 November 1989. They shall not discriminate against any person on any
ground such as sex, race, colour, language, religion, political or other opinion, national,
ethnic, or social origin, association with a national community, property, birth or all
other status.”
40. Linton (2001a: 137).
41. See UNTAET (1999a), section 2.
42. Ibid., section 3.
43. Ibid., section 3.3.
44. Ibid., section 3.2: The Law on Anti-Subversion; Law on Social Organizations; Law on
National Security; Law on National Protection and Defense; Law on Mobilization and
Demobilization; and the Law on Defense and Security.
45. District courts were established for the following locations in East Timor: Dili, Baucau,
Los Palos, Viqueque, Same, Maliana, Ermera and Oecussi.
46. See UNTAET (2000a), section 7.
47. See UN General Assembly (1999: para. 42).
48. See UN General Assembly and Security Council (2000a).
 EAST TIMOR 145

49. Ibid., para. 152.

50. Cohen (2002: 2).
51. Kofi Annan is cited here in Cohen (ibid.: 3; quotation taken from India Times, 15 Feb-
ruary 2000).
52. Conflict Security and Development Group (2003b: para. 258).
53. Ibid., para. 259.
54. Ibid.
55. See UNTAET (2000a), section 10.1; note that the court would have exclusive jurisdic-
tion over the latter three “only insofar as the offence was committed in the period
between 1 January 1999 and 25 October 1999”, as stipulated in section 10.2.
56. See UNTAET (2000c), sections 1.1 and 1.2; for a good introduction to the workings of
these panels see Linton (2001b).
57. Katzenstein (2003: 245 n. 2); had the Kosovo War and Ethnic Crimes Court been
established, it would have been granted such exclusive jurisdiction.
58. See UNTAET (2000c), sections 22.1 and 22.2.
59. Conflict Security and Development Group (2003b: para. 268).
60. UNTAET (2000d).
61. Ibid., section 6.1.
62. Linton (2001b: 418).
63. Strohmeyer (2001b: 50); see also Strohmeyer (2000, 2001a).
64. See UN Security Council (1999c: para. 33).
65. Strohmeyer (2001b: 50).
66. See UN Security Council (1999c: para. 51).
67. Strohmeyer (2001c: 175); on this problem see also Beauvais (2001: 1153–1154); Chester-
man (2004: 170).
68. Chesterman (ibid.: 170–171).
69. Strohmeyer (2001b: 54).
70. Ibid.; on this see also Chesterman (2004: 171).
71. Strohmeyer (ibid.: 54–55).
72. Chesterman (2004: 171).
73. Strohmeyer (2001c: 175).
74. Ibid.
75. Chesterman (2004: 171).
76. Strohmeyer (2001b: 51, 2001c: 175).
77. See UNTAET (1999c).
78. Strohmeyer (2001c: 176).
79. Chesterman (2004: 171).
80. Katzenstein (2003: 254); it should be noted, however, that the Serious Crimes Unit and
special panels did remain primarily UN entities (see ibid., n. 48).
81. Beauvais (2001: 1149).
82. Chesterman (2004: 170).
83. Linton (2001a: 137).
84. Strohmeyer (2001c: 174).
85. Linton (2001a: 137).
86. Beauvais (2001: 1151).
87. Court of Appeal, Democratic Republic of Timor-Leste (2003a).
88. De Bertodano (2004: 90); see also Special Panel for Serious Crimes, Democratic
Republic of Timor-Leste (2002).
89. On this see Judicial System Monitoring Programme (2003).
90. Court of Appeal, Democratic Republic of Timor-Leste (2003a: 5).
146 UNITED NATIONS JUSTICE

91. Court of Appeal, Democratic Republic of Timor-Leste (2003b: 1).

92. See Special Panel for Serious Crimes, Democratic Republic of Timor-Leste (2003),
section B; see also No Peace Without Justice (2003).
93. Judicial System Monitoring Programme (2003: 4).
94. De Bertodano (2004: 91).
95. National Parliament, Democratic Republic of Timor-Leste (2003).
96. East Timor and Indonesia Action Network (2003).
97. See Judicial System Monitoring Programme (2006), section 2.2; see also the CIA’s
country profile for Timor-Leste, available in the World Factbook at www.cia.gov.
98. Strohmeyer (2000: 267).
99. Linton (2001a: 148).
100. Ibid., pp. 148–149.
101. Ibid., p. 140.
102. UNTAET (1999d).
103. Conflict Security and Development Group (2003b: para. 228).
104. See UNTAET (2000b), section 2, which states that “Until such time as additional Dis-
trict Courts are established in East Timor, District Courts shall be established in the
following locations: (a) Baucau (b) Suai (c) Oecussi and (d) Dili”; on this see also
Beauvais (2001: 1154 n. 221).
105. Linton (2001a: 134).
106. On this point see Katzenstein (2003: 256).
107. Suzannah Linton (2001a: 134) also makes this point; as discussed in the Kosovo case
study, Article 9 of the ICCPR requires that a person may not be the subject of an
arbitrary arrest or detention, and that if such a detention takes place it can only be
made in accordance with the grounds and procedures established in the legal code. No
criminal procedure code would allow for such detentions, and the Indonesian one itself
certainly does not.
108. UNTAET (2000b), section 12a.10; see also Linton (2001a: 134). For a more detailed
discussion of the particular detentions and their illegal nature see Judicial System
Monitoring Programme (2002a).
109. There were circa 200,000 such refugees who had fled East Timor in the wake of the
ballot results of 4 September 1999.
110. De Bertodano (2004: 81–82).
111. Tanaja (2001), quoted in De Bertodano (ibid.: 82).
112. De Bertodano (ibid.).
113. UN Security Council (1999e: para 16); for a discussion of the lack of a coherent pros-
ecution strategy see De Bertodano (ibid.: 83–84).
114. De Bertodano (ibid.: 83).
115. Ibid., pp. 83–84; De Bertodano, one of the public defenders in East Timor, argues
that the SCU should have had one of two prosecution strategies: “it should either
have concentrated exclusively on the high command, prepared its cases, issued indict-
ments and arrest warrants, and then reported back to the Security Council that it
was unable to fulfil its mandate because Indonesia’s failure to cooperate meant that
it was unable to carry out arrests. Alternatively, it could have acted like an ordinary
domestic justice system, and investigated and prosecuted anyone within its jurisdic-
tion against whom there was evidence, regardless of their role in the overall command
structure.”
116. See UNMISET (2003), cited in De Bertodano (ibid.: 85); for a more detailed discus-
sion on the failure of the United Nations to support its own prosecutors in this case
see De Bertodano (ibid.: 84–86).
117. Ibid., p. 85.
 EAST TIMOR 147

118. Conflict Security and Development Group (2003b: para. 270).

119. Katzenstein (2003: 263).
120. Malunga and Alagendra (2002: 30), cited in Katzenstein (ibid.); Shyamala Alagendra
worked as one of the prosecutors and Siphosami Malunga as one of the public de-
fenders in East Timor.
121. Katzenstein (ibid.).
122. Cohen (2002: 6).
123. Ibid.
124. Ibid.; some of the applicants were British and Australian.
125. Katzenstein (2003: 269).
126. Ibid.
127. Dodd (2001); see also Katzenstein (ibid.).
128. See UNDP (2002: 36); on the language problem see Chesterman (2001a: 13).
129. On this, David Cohen (2002: 8 n. xii) makes a valid point: “This kind of neo-
colonialism does not bode well in a country where the new Portuguese-speaking gov-
erning elite has made Portuguese one of the two official languages but more than 95%
of the population do not speak or understand it.”
130. Katzenstein (2003: 263).
131. Judicial System Monitoring Programme (2002a: 16–17).
132. Ibid.
133. Ibid.
134. Katzenstein (2003: 263).
135. Judicial System Monitoring Programme (2002a: 17).
136. Ibid.
137. Human Rights Watch (2002b), section III, A.5.
138. De Bertodano (2004: 89).
139. Katzenstein (2003: 267).
140. UNTAET (2000c), section 23.2.
141. Judicial System Monitoring Programme (2001: 10).
142. Ibid.
143. Sections 10.3 and 15.5 of UNTAET (2000a) and section 1 of UNTAET (2000c) specifi-
cally refer to the establishment of panels in the plural, within both Dili District Court
and the Court of Appeal, to hear appeals arising from the special crimes cases.
144. Katzenstein (2003: 271).
145. Judicial System Monitoring Programme (2001: 14).
146. Judicial System Monitoring Programme (2002b: 9).
147. Ibid.; on this see also Katzenstein (2003: 271).
148. Katzenstein (ibid.: 268).
149. Judicial System Monitoring Programme (2002b: 11); see also Katzenstein (ibid.: 271).
150. Katzenstein (ibid.).
151. Judicial System Monitoring Programme (2002b: 11).
152. Ibid., p. 12.
153. Ibid., p. 18.
154. Judicial System Monitoring Programme (2002a: 28).
155. UNTAET (2000a), section 26.1, explicitly states that “the court shall ensure that, in
each hearing by a judge or panel of judges, written or recorded notes of the proceed-
ings are taken”.
156. UNTAET (2000f), section 31, states that in criminal cases the record of the proceed-
ings must be used to produce transcripts, and that the official record must contain “a
shorthand, stenographic or audio recording of the proceedings . . . [and that] Recorded
media shall be used as necessary during further proceedings to produce transcripts and
148 UNITED NATIONS JUSTICE

otherwise facilitate the functions of reviewing authorities.” See also Judicial System
Monitoring Programme (2002b: 18).
157. Judicial System Monitoring Programme (ibid.).
158. This point has been made in several JSMP reports: see, for instance, Judicial System
Monitoring Programme (2001: 23, 2002a: 28, 2002b: 18).
159. See Special Panel for Serious Crimes, East Timor (2001); the judgment is also cited in
Judicial System Monitoring Programme (2001: 23).
160. See Court of Appeal, East Timorese Transitional Authority (2001), cited here in Judi-
cial System Monitoring Programme (ibid.); for a discussion of this decision see Linton
(2001b: 318–323).
161. See Judicial System Monitoring Programme (ibid.).
162. Arguably, the failure of the court registrar to make available a full written transcript of
the record of the proceedings was the result of the promulgation of UNTAET (2001):
when comparing section 26 of UNTAET (2000a), which requires that “the court shall
ensure that . . . a transcript of the proceedings [is] taken and that the transcript is made
available . . . to all parties to the proceedings”, to section 26.1 of UNTAET (2001),
which states that “the court shall ensure that . . . written or recorded [emphasis added]
notes of the proceedings are taken and made available . . . to all parties”, it becomes
clear that over a year after the courts were established, UNTAET must have realized
the courts would be unable to make available transcripts of proceedings, and thus the
regulation had to be altered to reflect the reality of what was feasible given the diffi-
cult circumstances. On this point see Judicial System Monitoring Programme (2001: 22
n. 64).
163. Judicial System Monitoring Programme (2002b: 18).
164. Cohen (2002: 6).
165. Ibid.
166. Ibid.
167. See UNTAET (2000a), section 23.
168. English, Tetun, Bahasa Indonesia and Portuguese.
169. Conflict Security and Development Group (2003b: para. 269); at times, other local
dialects or languages were used.
170. Ibid.
171. Judicial System Monitoring Programme (2002b: 19).
172. Katzenstein (2003: 261) observed the following during a detention review hearing in
Dili on 23 July 2002: “The judge, prosecutor, and defender spoke in English. An in-
terpreter would translate what they said into Indonesian, and a second would trans-
late the Indonesian into Tetun. Even for this minor straightforward review hearing, the
translation significantly slowed the proceedings. For certain periods of the proceedings,
it simply did not occur. Only when the counsel or judge reminded the first interpreter
were statements translated. The defendant, it seemed, missed most of what was said in
the proceeding.”
173. Judicial System Monitoring Programme (2002a: 28); for more on the effect which the
dubious interpretation service had on trial proceedings see Judicial System Monitoring
Programme (2001: 26–28, 2002a: 27, 2002b: 19).
174. Judicial System Monitoring Programme (2002a: 27).
175. See the factual findings in Special Panel for Serious Crimes, East Timor (2001: 4–7);
reference is made to this in Judicial System Monitoring Programme (2001: 27).
176. Judicial System Monitoring Programme (ibid.).
177. Judicial System Monitoring Programme (2002b: 19); see also Katzenstein (2003: 261
n. 91).
178. See Cohen (2002: 1).
 EAST TIMOR 149

179. Katzenstein (2003: 268).

180. Beauvais (2001: 1155).
181. Judicial System Monitoring Programme (2001: 12); on this problem see generally
Linton (2001c).
182. Conflict Security and Development Group (2003b: para. 250).
183. Chesterman (2002a: 8).
184. De Bertodano (2004: 87).
185. See Chapter 2, p. 33.
186. See Chapter 2, p. 45.
187. See Chapter 2, pp. 35–37.
188. Section 23.3 of UNTAET (2000c) states in part that “In the overall composition of the
panels due account shall be taken of the experience of the judge in criminal law, inter-
national law, including international humanitarian law and human rights law.”
189. Conflict Security and Development Group (2003b: para. 231).
190. Article 8.1 on “Review of Applications” of UNTAET (1999c), which established the
TJSC, clearly states that the commission “shall receive and review individual applica-
tions of legal professionals of East Timorese origin for provisional service in judicial or
prosecutorial office”, emphasis added.
191. See Egonda-Ntende (2001).
192. See UNTAET (2000c), section 3.1(b).
193. Katzenstein (2003: 253).
194. Judicial System Monitoring Programme (2001: 10); this was so also in the case of the
Public Prosecutor v Joseph Leki, where both the defence and the prosecution made
clear references to the decisions of the ICTY and the ICTR in their submissions to the
court, both written and oral. See Special Panel for Serious Crimes, East Timor (2001).
195. For a full discussion of the case see Linton (2001a: 140–144).
196. See UNTAET (2000b), section 12a.
197. Linton (2001a: 142).
198. Ibid.
199. Linton (ibid.: 139); for a discussion of the UN’s early concerns about the possibility
that detentions were unlawful see Conflict Security and Development Group (2003b:
para. 145); UN Security Council (2000d); Amnesty International (2000b); Devereux
(2000).
200. Conflict Security and Development Group (ibid.: para. 280).
201. Ibid.
202. Ibid.
203. Katzenstein (2003: 260); both regulations set out the requirement that an official tran-
script has to be provided.
204. UNTAET (2000b), section 12a.10.
205. Ibid., section 12a.
206. See Article 4(1) of the ICCPR; emphasis added.
207. Suzannah Linton (2001a: 145) makes the same point regarding the relative conditions
in East Timor in 2000.
208. On the lack of clarity see Conflict Security and Development Group (2003b: paras
239–240).
209. This incident is described in detail in Conflict Security and Development Group (ibid.:
para. 239 n. 243).
210. Linton (2001a: 137).
211. Conflict Security and Development Group (2003b: paras 239–240).
212. Strohmeyer (2000), cited here in Beauvais (2001: 1152).
213. See UNTAET (2000f).
150 UNITED NATIONS JUSTICE

214. Linton (2001a: 139).

215. See sections 12.1 and 12.2 of UNTAET (2000a).
216. On this see Linton (2001a: 139); Linton (ibid.: n. 67) offers a potential explanation
for this confusion and misunderstanding: “Under the Indonesian Code of Criminal
Procedure, there is a clear distinction between the roles of interrogator, investigator,
prosecutor and judge. There are provisions for a judge to review detention after the
first 110 days; that judge is not an ‘investigator’ and may in fact try the case. UNTAET
appears to have considered at the time that this official equated with the European
model of the investigating judge (for example an Untersuchungsrichter in the German
legal system).” Given that UNTAET’s principal legal adviser, Strohmeyer, was a Ger-
man judge, it is conceivable that he may have made this erroneous interpretation of
the Indonesian Code of Criminal Procedure.
217. Ibid.
218. Conflict Security and Development Group (2003b: para. 228).
219. For a good overview of the issue of reprisal violence in East Timor see Boyle (2005).
220. For an introduction to the Detainee Management Unit’s activities see Oswald (2000);
Kelly (2000).
221. These were the procedural regulations according to the Indonesian legal code.
222. Linton (2001a: 142).
223. See Chapter 2, pp. 37–39.
224. Katzenstein (2003: 254).
225. Ibid., p. 263.
226. Cohen (2002: 5).
227. On this point see Cohen (ibid.); Katzenstein (2003); Linton (2001c); Judicial System
Monitoring Programme (2002a).
228. See Cohen (ibid.: 7).
229. For a discussion on the notion of a community of courts see Burke-White (2002); for
a discussion on the role of internationalized courts in the enforcement of international
criminal law see Cassese (2004); for a broad discussion on second-generation UN-
based tribunals see Shraga (2004).
230. De Bertodano (2004: 86).
231. See Chapter 2, pp. 39–41.
232. See Chapter 2, pp. 41–42.
233. Kelly (2000: 4).
234. See Judicial System Monitoring Programme (2006), section 2.2; see also the CIA’s
country profile for Timor-Leste in the World Factbook, available at www.cia.gov.
235. For more on this topic see Boyle (2005).
236. Chesterman (2002a: 8).
237. This changed later on in the mission, when international lawyers took over virtually all
defence responsibilities for serious crimes trials.
238. See Human Rights Watch (2002b); Amnesty International (2002b).
239. UN Security Council (2000a: para. 44).
240. Linton (2001a: 150) points to section 10.3 of UNTAET (2000a), which states: “The
Transitional Administrator, after consultation of the Court Presidency, may decide to
establish panels with the expertise to exercise exclusive jurisdiction vested in the court
by Section 10.1 of the present regulation”, emphasis added.
241. Linton (ibid.: 174).
 151

5
Legal and judicial reform
reconsidered

The preceding case-study chapters demonstrate that the UN’s approach

to legal and judicial reform detracted from the goal of establishing a
sustainable legal system; part of the reason for this detraction was the
failure of the approach to address adequately the key tensions of a gov-
ernance operation and justice sector reform. This chapter will highlight
and sum up the issues raised by the UN’s experience, particularly as they
relate to the five elements of the UN’s approach, and consider how these
issues have been presented in the literature on justice sector reform and
transitional administration more broadly. In discussing these issues, the
chapter will contend with some of the assumptions underlying the UN’s
approach; in locating them within the literature, the chapter will seek to
find answers that academics or practitioners who have written on the
subject may offer as to ways in which a different approach to legal and
judicial reform might better address the tensions discussed.

Filling the legal vacuum

Issues raised

We saw in the Kosovo case study that Albanian jurists rejected the UN’s
initial decision to apply the laws of Serbia, and the United Nations had to
reverse its decision on the applicable law six months into its mission. In
East Timor the UN’s initial decision to apply the Indonesian legal code

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
152 UNITED NATIONS JUSTICE

eventually led to a legal and political crisis in the territory. In both cases
the problems were rooted in the UN’s failure to consult with local actors
on the choice of applicable law and allow sufficient time for discussions
on the matter to take place locally. Furthermore, we also saw that the de-
cision to implement in Kosovo the legal codes of 1989, and the resultant
need to fill legal gaps with laws from Serbia and the Federal Republic of
Yugoslavia, led to the creation of a confusing legal regime.
Similarly, the UN’s failure to review the Indonesian legal code for
consistency with human rights standards and principles before it was
implemented in East Timor led to a lack of clarity and confusions with
the law. And thus it became clear that the UN’s initial decision to im-
plement a previously applicable legal code from the very beginning of
its missions directly led to the establishment of a confusing legal regime,
and therefore to the violation of Fuller’s principle that the rules must be
understandable, and also to further legal and political problems in both
territories. Based on this experience, it is clear that sufficient time must
be allowed for debates on the choice of applicable law to take place and
consultations on the matter to be held with local actors, and that con-
sequently the introduction of a comprehensive transitional legal frame-
work based on previously applicable laws from the very beginning of
a mission is not a productive undertaking when filling the initial legal
vacuum.

Responses from academics and practitioners, analysis and

discussion

The question of how to fill a legal vacuum effectively is addressed early

on in the literature on the subject, and the initial responses were formu-
lated in relation to the UN’s failures to address this problem effectively
in Cambodia.1 Recognizing the problems with the UN’s hasty efforts to
devise legal codes for Cambodia, and the eventual shortcomings of these
UN codes, the then foreign minister of Australia, Gareth Evans, argued
in 1993 in favour of UN pre-prepared justice packages,2 based on univer-
sal legal principles and made up of criminal laws and criminal procedure
codes.3 In 1998 Mark Plunkett, who had served as the UN’s special prose-
cutor for Cambodia, also proposed the use of justice packages which con-
tain “the generic nuts and bolts of law and order restoration, as well as
local social and cultural dynamics for its acceptance by the population”.4
The basis for his argument was that:

Usually there will not be any law in the host country because the state and the
rule of law will have collapsed . . . To use the laws of one group over the other
will imperil the neutrality of the peace operation. Furthermore, a peace opera-
 LEGAL AND JUDICIAL REFORM RECONSIDERED 153

tion can use existing local laws and local courts to enforce the law only when
those laws and courts reasonably meet international standards. Usually there
will be no domestic substantive or procedural law that is competent, credible
and independently administered.5

As we saw, however, the United Nations did not heed calls for the
creation of such justice packages containing interim legal codes, opting
instead for the direct application of previously applicable laws in Kosovo
and East Timor. The UN panel which reviewed peace operations in 2000
recognized that there were problems with the UN’s method for filling the
legal vacuum in the two territories. As mentioned in the Kosovo chapter,
the panel observed that “in both places, the law and legal systems pre-
vailing prior to the conflict were questioned or rejected by key groups
considered to be the victims of the conflicts”,6 and also argued that
UNMIK’s and UNTAET’s “tasks would have been made much easier
if a common United Nations justice package had allowed them to ap-
ply an interim legal code in which mission personnel could have been
pre-trained while the final answer to the ‘applicable law’ question was
being worked out”.7 It would also circumvent the problem of interna-
tional lawyers having to take at least six months to learn local laws which
they would only then be able to apply, a time during which criminals and
other powerful local actors might exploit the legal vacuum or fill it with
their own parallel administrations.8 Consequently, the panel’s report rec-
ommended that the Secretary-General should convene a panel of experts
to assess the feasibility and utility of an interim criminal code.9 The panel
of experts, however, quickly dismissed the practicality and desirability
of such an interim legal code, doubting that it would be feasible on the
grounds of “the diversity of countries’ specific legal traditions”.10
Despite this dismissal, and recognizing the errors of the UN’s approach
to legal reform, and perhaps also his own responsibility for these errors,
UNTAET’s principal legal adviser, Hansjoerg Strohmeyer, argued in
2001 for the “Creation of an immediately applicable legal framework”,
the availability of which he viewed as a “prerequisite for the building of
judicial institutions”.11 He believed that this body of “law-enforcement-
related legislation should be developed as part of a ‘quick-start package’
for UN administered territories”, and also that “Readily applicable crimi-
nal procedure and criminal codes, as well as a code regulating the activi-
ties of the police, are essential to the unimpeded functioning of the UN
civil police component of peace-building missions.”12 Similar arguments
followed in 2001: Joel Beauvais, for instance, stated that “UNTAET’s
experience demonstrates the potential usefulness of an interim, off-the-
shelf U.N. criminal law, particularly given the two-month delay between
INTERFET’s arrival and UNTAET’s definition of applicable law.”13 And
154 UNITED NATIONS JUSTICE

in 2003 Megan Fairlie continued along these lines, claiming that a “gen-
eric legal framework” is a “necessary prerequisite for effective and imme-
diate international assistance . . . [and] a means for assuring that the arrests
and prosecutions, initiated under the auspices of the U.N., are aligned
with the U.N.’s own standards”.14
And while there were some variations and differences on this theme
of interim legal codes, or transitional or model codes, particularly regard-
ing their scope,15 any and all of these propositions could not be further
from the UN’s stance against the “ill-advised” notion of “pre-packaged”
solutions, and its recommendation to “Avoid the imposition of exter-
nally imposed models.”16 As these quotations from the Secretary-
General’s report of 2004 on “The Rule of Law and Transitional Justice in
Post-Conflict Societies” indicate, little changed in four years from the ex-
pert panel’s initial stance on the practicality and desirability of an interim
code.
But despite the expert panel’s initial position, the US Institute of
Peace and the Irish Centre for Human Rights,17 in cooperation with the
UN Office of the High Commissioner for Human Rights (OHCHR),
drew inspiration from the Brahimi Report and decided to develop tran-
sitional model legal codes.18 In mid-2002 a specialist panel was convened,
and over the course of the next year it developed a Transitional Criminal
Code, a Transitional Code of Criminal Procedure, a Transitional Deten-
tion Act and a Transitional Law Enforcement Powers Act.19 They were
created by blending codes from a variety of legal systems – civil, common
and Islamic – rather than using just one. The codes were presented at a
review conference in June 2003, and over the course of the following year
there were a set of consultations with experts in an attempt to improve
the transitional codes.20 By the time they were complete they had grown
into something not originally envisaged in the Brahimi Report, which
only sought to investigate the potential for codes that would deal with
crimes such as murder, rape and arson.21 At the review conference, the
transitional codes received much criticism: Afghanistan had signalled the
beginning of the light-footprint approach, and with the UN’s eschewing
of further executive missions, there would be no way to promulgate such
codes; legitimacy problems, as well as the difficulty in applying them in
different regions of the world, were also cited as challenges to these tran-
sitional codes.22
This climate of criticism led to a change in the focus and termin-
ology of the project. The codes were no longer referred to as transitional
codes, but as model codes, and their use would no longer be envisaged
as codes that could be applied in a post-conflict society, but as a reform
tool that could help national and international personnel charged with
providing technical assistance for legal reforms.23 Whether or not the
model codes will ever be used in any of the ways which the creators
 LEGAL AND JUDICIAL REFORM RECONSIDERED 155

envisioned remains to be seen,24 but it is clear that the UN’s stance is es-
sentially that while they can be useful tools in helping local actors design
their own justice system, they should not be imposed in a post-conflict
context, as evidenced by the Secretary-General’s August 2004 report on
the rule of law and transitional justice.
The report casts a positive light on the notion of transitional codes in
several instances: for example, it regards transitional criminal codes as
“policy tools”,25 and elsewhere refers to the development of transitional
codes as “progress”26 in the aim “to address . . . lacunae”27 in the approach
to date. However, more frequently the report argues against foreign-
imposed models: at the beginning, the summary states that we “must learn
. . . to eschew one-size-fits-all formulas and the importation of foreign
models, and instead, base our support on national assessments, national
participation and national needs and aspirations”.28 Furthermore, the re-
port argues that “too often, the emphasis has been on . . . foreign models
and foreign-conceived solutions to the detriment of durable improve-
ments and sustainable capacity”.29 This point is repeated frequently:
“Pre-packaged solutions are ill-advised . . . Instead, experiences from
other places should simply be used as a starting point for local debates
and decisions.”30
Ultimately, the report argues that “no rule of law reform, justice recon-
struction, or transitional justice initiative imposed from the outside can
hope to be successful or sustainable”, and that “countless pre-designed
packages or imported projects, however meticulously well-reasoned and
elegantly packaged, have failed the test of justice sector reform”.31 While
this basic point is repeated several times, the concluding section makes
no direct mention of the need to implement transitional codes. However,
there is a recommendation that Security Council mandates should “Avoid
the imposition of externally imposed models.”32
In the same report, the Secretary-General writes that the “role of the
United Nations and the international community should be solidarity,
not substitution”, and that “peace operations must better assist national
stakeholders to develop their own reform vision, their own agenda, their
own approaches to transitional justice and their own national plans and
projects”.33 Furthermore, the report argues that the “most important role
we can play is to facilitate the processes through which various stake-
holders debate and outline the elements of their country’s plan to ad-
dress the injustices of the past and to secure sustainable justice for the
future”, reminding us that this must be done “in accordance with inter-
national standards, domestic legal traditions, and national aspirations”.34
While the United Nations clearly wishes to give local actors the up-
per hand in shaping their justice systems, the statement above clearly
demonstrates some of the inherent contradictions and flaws in the UN’s
position: the suggestion that legal reform must occur in accordance with
156 UNITED NATIONS JUSTICE

international standards is already a foreign-conceived notion and an ex-

ternal imposition of sorts in itself. Furthermore, the Secretary-General
proposes that the United Nations must show solidarity with local actors,
but this presumes that there are actors who can be shown such solidarity
and helped with their own vision. While this is feasible in the long run, it
does not address the immediate problems when there is a legal vacuum
and there are virtually no jurists left in a territory whose reform visions
the United Nations can support. The UN’s argument that its role should
be “solidarity, not substitution” is more of a programmatic statement
which reflects its wishes to refrain from taking on further responsibili-
ties for governance and administration than a feasible assessment of what
can be done to help reform a legal system in a post-conflict environment
where such a system needs to be rebuilt from the ground up, without the
local capacity for doing so.
The Secretary-General’s report on the rule of law and transitional jus-
tice in post-conflict societies accurately identified foreign-imposed tran-
sitional legal codes as problematic. Furthermore, the UN’s stance is that
foreign-conceived transitional codes should only be used to guide local
actors in reforming their legal framework. However, this broad position
clearly fails to provide any practical guidance as to how the organiza-
tion should deal with a legal vacuum in a post-conflict territory. The UN’s
stance starts from the assumption that the organization will no longer
undertake governance-type operations, and that any future role it will
have in post-conflict territories will only be in an advisory and assistance
capacity to local or other international authorities. Judging by the UN’s
recent missions, where it has adopted a light-footprint approach, such as
in Afghanistan, this is indeed likely.35 However, the possibility that it will
at some stage need to undertake governance functions cannot be dis-
regarded, and thus it is important to have a clear understanding of the
options the United Nations has if it is in a situation again where it faces
a lack of local capacity for governance and a legal vacuum at the same
time. And thus the crucial question is how a legal vacuum can be filled
quickly, until such time as local actors have had the opportunity to de-
bate and decide upon a transitional legal framework.
There is one option proposed in the literature which has the poten-
tial to be perceived as less intrusive than foreign-conceived generic legal
codes; it partly stems from a territory’s own legal codes and customs, and
may therefore be potentially more acceptable to UN peacebuilders. The
approach is Simon Chesterman’s suggestion that:

In an immediate post-conflict environment lacking a functioning law enforce-

ment and judicial system . . . the law imposed . . . should be simple and consist-
ent. If it is not feasible to enforce the law of the land, martial law should be
 LEGAL AND JUDICIAL REFORM RECONSIDERED 157

declared as a temporary measure, with military lawyers (especially if they come

from different national contingents) agreeing upon a basic legal framework.36

Thus the initial and temporary imposition of martial law, with military
agreement upon a basic legal framework, is one option that has been de-
vised so far. The root of this proposal arguably lies in the method and the
basic legal framework which INTERFET applied to deal with the initial
legal vacuum upon its arrival in East Timor in September 1999. In order
to understand the essence and practicability of Chesterman’s proposal, it
makes sense to take a closer look at INTERFET’s approach.
INTERFET established “basic, short-term legal and practical provi-
sions for preventive detention, in consultation with UNAMET and the
International Committee of the Red Cross (ICRC)”.37 These provisions
essentially amounted to the ability for INTERFET troops to detain in-
dividuals temporarily where there was sufficient reason to suspect that
a person either had committed, was in the process of committing or was
going to commit a serious offence.38 However, it soon became clear that
in the absence of a functioning judicial system, INTERFET would have
to balance the demand for order and security with the demand for justice
and due process. It quickly decided to do this by providing detainees with
legal representation and regular detention reviews conducted by an inde-
pendent reviewing body,39 so the commander of INTERFET passed the
Detainee Ordinance on 21 October 1999.
This ordinance, along with the Force Detention Centre Orders, was for
the most part based on the provisions of Geneva Convention IV,40 and in
particular those which address the issues of the maintenance of security
and of a military force’s handling of detainees.41 Essentially, the ordin-
ance established the Detainee Management Unit (DMU), an emergency
military regime designed to help INTERFET re-establish law and order
in the territory. The DMU consisted of an authority which could review
cases, a prosecutor, a defending officer, a police expert and two visiting
officers, and this emergency and “quasi-judicial regime” was designed to
provide a temporary review process for individuals held in INTERFET’s
detention centre.42
INTERFET chose as applicable law the prevailing de facto legal re-
gime, namely Indonesian law. The reason why Indonesian law was chosen
rather than the de jure legal regime – i.e. the legal codes of Portugal – is
because of the intention of GC IV to avoid retroactivity and ensure that
the laws are familiar to those to whom they will apply: while the Portu-
guese legal code applied de jure during the time of Indonesia’s occupa-
tion, the fact that Indonesia had not applied Portuguese laws for 25 years,
applying Indonesian laws instead, meant that the law was de facto that of
Indonesia, so INTERFET considered it efficacious to rely on Indonesian
158 UNITED NATIONS JUSTICE

laws.43 Importantly, however, Indonesian laws applied only to the extent

that they were meant to guide behaviour, and did not extend to various
procedural laws. The procedural framework within which Indonesian
criminal laws would apply was different to Indonesia’s code of criminal
procedure, in that it was based on international humanitarian law princi-
ples, and in particular on GC IV.44
The ordinance initially placed several key limitations upon the DMU’s
operation. Firstly, only those who committed crimes which would be
punishable with more than five years under Indonesia’s penal code
(i.e. serious offences) were to be held in continued detention, and all
other detainees were to be released; this limitation was designed on the
basis of the realization that serious crimes would need to be prioritized,
and also to ensure that individuals having committed minor offences were
not incarcerated for prolonged periods as a result of the inability of the
system to process their cases quickly.45 And secondly, the DMU would
only hold in continued detention those individuals who were suspected
of having committed serious offences after INTERFET’s deployment on
20 September 1999. The rationale for this was firstly that Article 70 of
GC IV forbids the occupying power to prosecute and punish any crimes,
other than war crimes, committed prior to a territory’s occupation; and
secondly that under the 5 May Agreement the Indonesian government
had the responsibility for law and order until INTERFET’s arrival, and
therefore such crimes would be a matter for it to address.46
However, it became clear fairly soon that allowing individuals sus-
pected of committing crimes prior to 20 September to remain free in
East Timor would potentially encourage the local population to address
matters themselves, which would of course undermine INTERFET’s goal
of re-establishing peace and security throughout the territory.47 Thus
INTERFET’s commander decided to allow such individuals to be held
as security detainees, and to hold them until a civilian judiciary could ad-
dress their cases. Along with security detainees, the three other classes
of detainees were voluntary detainees,48 individuals held on suspicion
of committing a serious criminal offence and individuals committed for
trial as a result of a suspected commission of a serious offence.49 Slightly
different procedures50 were adopted for dealing with the different types
of detainees, but importantly, INTERFET’s DMU was able to strike the
right balance between the need for order and the need for justice. By
the time the UNTAET civilian judiciary was established in early January
2000 and INTERFET handed over 25 detainees to the UNTAET civilian
police,51 the DMU had reviewed the cases of over 60 individuals.52
Chesterman’s proposal for the imposition of martial law and the
implementation of a basic legal framework, which is essentially what
INTERFET did in East Timor, is one option proposed in the literature as
to how a legal vacuum can be filled quickly in a post-conflict society. Such
 LEGAL AND JUDICIAL REFORM RECONSIDERED 159

a proposal hints at the need for an emergency legal framework to apply

temporarily, and makes the distinction between a short-term and a long-
term solution. While most prior proposals for generic and pre-prepared
interim legal codes envisioned such codes applying for a prolonged
period of time, the initial application of martial law by a security assist-
ance force along with a basic legal framework would apply only tempo-
rarily, as Chesterman states, and until such time as a transitional legal
framework has been discussed and selected.
When UNTAET came into existence it shied away from continuing
to apply the INTERFET-created emergency framework. However, con-
tinuing to apply such a framework, or implementing a similar framework
until the discussion and consultations on a transitional legal framework
had taken place and a transitional framework had been chosen, would
have spared it many of the problems it eventually created.
Chesterman’s proposed approach would much better balance two of
the key tensions of governance operations. Firstly, the approach would
not only make it possible for an acceptable transitional legal framework
to be chosen, thereby preventing any frequent changes in the law and
potential legal and political crises, but would also be likely to strike a
better balance between the need for international governance on the one
hand and local empowerment on the other: the ultimate decision over
the transitional legal framework would still lie with the transitional ad-
ministrator, but it would provide an opportunity for local actors to feel
involved in the legal process to an extent that they should indeed be in-
volved, namely the selection of the law.
The approach would also give sufficient opportunity for any transitional
legal codes to be, in the first instance, identified, collected and organ-
ized. As Scott Carlson highlights in the Primer for Justice Components
in Multidimensional Peace Operations he authored for the UN Depart-
ment of Peacekeeping Operations, gathering and organizing the applic-
able laws is essential after the arrival of a mission, but given that these
can be difficult to locate, and that linguistic challenges make matters
even more complicated, this can be a time-consuming task. Furthermore,
the approach would also create an opportunity for the laws to be re-
viewed for compatibility with human rights standards, and for jurists to
be familiarized with such standards and with the legal codes themselves
before they have to begin applying them. Finally, it would also strike
the right balance between the need for order and security and the need
for justice based on international human rights standards: while detain-
ees would receive adequate due process and a hearing with a reviewing
authority, as they did with the DMU, the system would allow for secur-
ity detentions, including for individuals suspected of having committed
atrocities prior to the UN’s arrival, and for prolonged pre-trial detention
periods.
160 UNITED NATIONS JUSTICE

Human rights in a post-conflict legal context

Issues raised

The notion that a full catalogue of human rights must necessarily apply
as part of a legal framework in situations where a UN civilian admin-
istration mission takes charge of a post-conflict territory dominated the
thinking of both UNMIK and UNTAET; consequently the two adminis-
trations implemented such a complete catalogue from the beginning of
the respective missions. The analysis presented in the case-study chapters,
however, demonstrates that while basic human rights should indeed ap-
ply broadly, the notion that a full catalogue of such rights can apply in the
immediate aftermath of violence is misguided: such an approach led to
the violation of key legal principles, most importantly the need for con-
gruence between the rules as announced and as administered, and also
the need for clarity; furthermore, it led to the violation of various judicial
norms, and in particular key due process rights related to the length of
pre-trial detention periods.

Responses from academics and practitioners, analysis and

discussion

As we saw, various human rights NGOs and some international institu-

tions were unsurprisingly critical of the UN’s failures to uphold human
rights standards in its missions. The criticisms were made in particular in
relation to the violation of detainees’ rights to liberty and to a fair trial:
in Kosovo, this was largely the result of the executive detentions, as high-
lighted by the OSCE,53 the Ombudsperson Institution,54 Amnesty Inter-
national55 and Human Rights Watch,56 for instance;57 and in East Timor it
was as a result of the violation of various due process and other fair trial
standards, as highlighted by the Judicial System Monitoring Programme58
and various academics.59 But while many of the reports and papers which
discuss the subject of human rights in a post-conflict legal context are
very quick to condemn the international community’s failures and call
for an end to problematic practices, such as executive detentions, virtu-
ally none offers any suggestions as to how a UN mission can adequately
balance its obligations on the one hand to re-establish law and order on
the ground in what is frequently a very challenging security situation, and
on the other hand to observe and protect human rights to the fullest ex-
tent possible.
At the end of one of the most violent centuries in human history, and
at a time when human rights are still broadly violated in most societies,
the protection of human rights has rightfully become the focus for many
organizations, and has also begun to have a very slight influence on some
 LEGAL AND JUDICIAL REFORM RECONSIDERED 161

states’ relations with each other. However, the fact that the protection
of human rights has become the be all and end all of some practitioners’
and institutions’ existence, and that many academics subscribe to the un-
swerving protection of such rights with an almost dogmatic fervour, has
evidently prevented lateral thinking on the matter, particularly when it
comes to addressing human rights problems in the context of post-conflict
reconstruction. Furthermore, the problems of extraordinary rendition,
particularly as practised by the United States, of extra-judicial security
detentions in locations such as Guantanamo Bay and of human rights
abuses during the military occupation of Iraq have been at the forefront
of intellectual discussions and debates on the matter of how adequately
to balance a state’s need for order and security versus human rights and
justice, arguably to the detriment of any discussions on the matter in the
context of post-conflict reconstruction, particularly if carried out by a
non-state entity.
The United Nations is open to suggestions on the matter: in the
Secretary-General’s report on rule-of-law reform in conflict and post-
conflict societies, he recognizes that:

lawlessness can seriously undermine the efforts of an entire peace operation

. . . we must, together with Member States, rethink our current strategies for
addressing the rule of law vacuum into which we are deployed, including the
role, capacities and obligations of military and civilian police components.60

This statement does imply a recognition on the part of the United

Nations that its reform strategies have not worked, and the fact that the
organization is willing to rethink these reform strategies indicates that it
is broadly open to suggestions on the matter.
While some academics and practitioners have heeded this call and have
provided suggestions on some issues, as we saw in the previous section,
the discussion about how the United Nations can effectively administer
human rights in a post-conflict context has largely focused on discovering
how to ensure that international human rights standards are not violated
through the UN’s legal and judicial reform process.61 The literature on
this topic implies that better funding and resourcing could help to avoid
a number of problems, which is indeed true, but it fails to address the
problems which are inherent in the task of building a new legal system
from the ground up, namely that the reform efforts take place in an envi-
ronment where order and security have not been re-established, and they
require time. Unless these factors are taken into account, it is unlikely
that the United Nations will come up with a successful approach.
It is interesting to note that while international legal instruments, and
more specifically the law on belligerent occupation, guided the UN’s legal
and judicial reform efforts, particularly regarding the initial choice of law
162 UNITED NATIONS JUSTICE

and institutional framework, neither the United Nations nor any aca-
demics have looked towards such legal instruments for an answer to the
human rights dilemma and how to deal with it in times of public emer-
gencies, which is essentially what a post-conflict environment amounts
to. However, perhaps with the exception of the Universal Declaration of
Human Rights62 and the African Charter of Human and Peoples’ Rights,63
most human rights instruments do provide some answers about how to
deal with this problem, and those answers lie in the division of human
rights between non-derogable and derogable rights.64 For instance, Arti-
cle 4.1 of Part II of the ICCPR states that:

In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the situa-
tion, provided that such measures are not inconsistent with their other obliga-
tions under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.65

The European Convention on Human Rights and the American Con-

vention on Human Rights have similar provisions for derogations from
certain rights.66 Furthermore, international humanitarian law makes
provision for such derogation in Geneva Convention IV, as set out in
Articles 41–43, 68 and 78 of the convention.67 Certain rights remain non-
derogable under these conventions, such as the right to life, freedom
from torture, protection against slavery and protection against retrospec-
tive criminal penalties, but in essence these articles provide the ability
for either national governments or an occupying power to derogate from
some rights in times of a public emergency so as to be able to re-establish
law and order effectively. Among the derogable rights are articles which
pertain to arrests and detention, such as Articles 9 and 14 of the ICCPR.
Perhaps it was the UN’s past efforts to encourage states to uphold the
highest human rights standards which prevented it from invoking emer-
gency powers when it was in a governing position itself. However, as the
case studies demonstrated, no matter what good intentions the United
Nations may have had in avoiding the issue of derogation, the decision
not to derogate led it to violate its own laws and to be rightfully accused
of failing to live up to the very standards it had implemented. Derogation
from key rights did occur under the INTERFET regime in East Timor,
and if they had publicly acknowledged the need for derogation from
certain rights, only then derogating from such rights, both UNMIK and
UNTAET would have prevented the violation of their own laws and key
legal principles.
 LEGAL AND JUDICIAL REFORM RECONSIDERED 163

There is nothing new about the notion that a society where the regular
law-and-order mechanisms have broken down is in need of emergency
legal measures to try to restore security. Traditionally, states have dealt
with such situations through constitutional provisions permitting the im-
plementation of martial law. All in all, derogating from certain human
rights has the potential to balance better the need for order and secu-
rity on the one hand and justice within a framework of human rights on
the other hand. In the approach taken in Kosovo and East Timor, the
balance was too much in favour of human rights. But derogation in par-
ticular from rights pertaining to arrests and detentions in both UNMIK
and UNTAET would have left these missions in a better position to en-
sure the security and stability of the territory without having to be in
breach of the law. In essence, such derogation would simply have legal-
ized preventive and security detentions, which did take place in Kosovo
in the form of the SRSG’s executive detentions, thereby helping to keep
legally behind bars individuals who were already detained and who posed
a threat to security and stability if released, and by holding other detainees,
such as suspected perpetrators of gross atrocities or other suspected
criminals, for longer periods pending trial. Derogation would also have
ensured accountability for past and more recent crimes without having
to keep individuals illegally detained, and without feeling forced to begin
trial proceedings at a time when such proceedings cannot be held in con-
ditions that fulfil internationally expected standards.
While it is perhaps understandable that the United Nations has not
wanted to invoke emergency rights in its governance operations, even
though the situation on the ground would certainly have constituted
the equivalent of a national emergency and such derogation could have
been justified on these grounds, it is noteworthy that the issue of deroga-
tion has been left out from the literature on transitional administration
broadly and on justice sector reform more specifically, and this presents a
significant gap in the literature.

Establishing an institutional structure

Issues raised
The decision to establish a comprehensive and regular court structure
from the beginning of the mission was the aspect of the UN’s approach
to legal and judicial reform which caused the least number of problems
and violations. However, as we saw in the East Timor case study, the
focus on establishing a comprehensive regular court structure early on
turned UNTAET’s attention away from the more pressing need to imple-
ment some temporary institutional measures so that the newly appointed
164 UNITED NATIONS JUSTICE

judges could function within some sort of judicial framework, rather than
extra-judicially as they did. UNMIK’s establishment of mobile courts
was a step in the right direction in this respect; however, the similarity of
these mobile courts to regular courts implies that the United Nations was
not willing to contemplate establishing anything but such regular courts.
Furthermore, in East Timor the approach also led to the implementation
of a structure which was larger than was feasible, and consequently the
need for UNTAET to downsize the number of district courts it had ini-
tially envisioned from eight to four.
In essence, this approach does not account for the fact that a post-
conflict society has judicial needs which have to be addressed instantly,
and that what may be desirable may not be feasible, and may initially
and unnecessarily raise local expectations about the ability of the legal
system to deliver justice quickly; thus the approach does not leave suf-
ficient time for the consideration and design of an appropriate institu-
tional structure. Moreover, the approach does not allow sufficient time
for considering whether and how any customary justice and/or dispute
resolution mechanisms and practices may be integrated into or work
together with or within that institutional structure.68
Certainly, whether or not customary justice mechanisms and practices
should be integrated into a statutory judicial system is debatable. The ap-
proach taken may be advantageous, in that it may help to root out some
extreme customary practices which are not deemed to be in line with
international human rights standards. Such practices may include, for
instance, ones which are similar to the Punjab Tribal Council’s ordering
of the gang rape of Mukhtaran Bibi in 2002, in retribution for her very
young brother’s alleged affair with an older woman.69 On the other hand,
the approach may be disadvantageous in that it may potentially ignore
useful customary justice mechanisms and practices: in many societies
there are, for instance, village- or tribal-level justice mechanisms which in
minor disputes between parties may ease the pressure on the statutory
justice system, particularly if the courts are distant and the claims are
small. As we saw in East Timor, the United Nations ignored the cultural
importance of forgiveness in its approach to justice, which may have been
detrimental to its decisions on whether or not to prosecute the lower-
ranked individuals who had committed atrocities during the conflict.
Finally, an approach that ignores local customs may in fact contribute to
the creation of two parallel legal systems – one based on customs and
one which is statutory, rendering the statutory system potentially ineffec-
tive if such customs are strongly embedded in the local culture.70 Either
way, the early establishment of a regular institutional structure pre-empts
any discussions on the potential integration of customary justice practices
and mechanisms into the statutory judicial system.
 LEGAL AND JUDICIAL REFORM RECONSIDERED 165

Responses from academics and practitioners, analysis and

discussion

Among the academics and practitioners writing on transitional justice

and rule-of-law reform, there is virtually no discussion or debate on the
establishment of a judicial institutional structure in a post-conflict soci-
ety. The lack of scholarly treatment of this issue would appear to suggest
that the current approach is regarded as largely unproblematic and not
worthy of further investigation. While this book confirms that the insti-
tutional structure was the least contentious area of reform, and that the
establishment of a regular court structure was the least problematic of
all the elements of the UN’s approach, the above discussion of the issues
raised does indicate that the approach is not without flaws.
What is interesting to note in this context is that there is some scholarly
treatment of the issue of how the security forces dealt with the absence
of a court structure in East Timor: Bruce Oswald and Michael Kelly have
both addressed the establishment of the Detainee Management Unit.71
INTERFET’s approach to the problem of establishing an institutional
and procedural framework in order to maintain law and order clearly
holds many valuable lessons for the United Nations, since INTERFET’s
task of dealing with detainees in a chaotic post-conflict environment, in
the absence of any functioning structures, is not very different to the
tasks the United Nations has to carry out in administering justice. Impor-
tantly, INTERFET did not follow the GC IV regulation that the regular
courts have to continue to function as before in a territory under mili-
tary occupation. INTERFET’s leadership recognized that even though
INTERFET was essentially an Australian-led security force, the fact
that its mission had been sanctioned by the Indonesian government and
was welcomed by the Timorese factions meant that its presence in East
Timor did not amount to military occupation, and it was therefore free
to design the law-and-order functions of its operation as it saw fit. In the
absence of any local legal and judicial capacity, it established a mecha-
nism through which its own personnel could deal with law and order, and
through which detainees could be guaranteed some due process rights.
But while there was still no functioning judiciary in East Timor, and
the local legal and judicial capacity was still absent when the United Na-
tions took over responsibility for the DMU detainees in early January
2000, the United Nations chose a different route to dealing with these
and other detainees. As we saw, the United Nations employed some
local jurists, and did not recognize the inherent problem in permitting
such individuals to issue detention orders etc. in the absence of any ju-
dicial structures. Moreover, it let the new and the DMU detainees stay
in pre-trial detention for a prolonged period of time without any real
166 UNITED NATIONS JUSTICE

mechanism through which their detention could be challenged. The im-

portant lesson for the United Nations here is that there must be a rec-
ognition that the establishment of a mechanism to deal with detainees
cannot be delayed simply because the UN’s policy preference is to es-
tablish a regular court system before dealing with such detainees. In this
respect, Scott Carlson’s suggestion that Emergency Mobile Courts “may
be needed in the emergency phase to deal with the most acute needs” is
very helpful, as is his conclusion that such mobile courts “can also pro-
vide a long term solution to some endemic access to justice challenges”.72
INTERFET’s establishment of the DMU helped the security forces
to balance better the tensions between the need for order and security
on the one hand and justice within a framework of international human
rights standards on the other: while detentions, including security and pre-
ventive detentions, were carried out, they were carried out legally. Impor-
tantly, such security detentions occurred within a framework which gave
detainees the right to a prompt hearing regarding their detention, as well
as the right to challenge that detention. Detainees were released either
conditionally if they were not deemed to be a security threat or a flight
risk, or unconditionally if there was insufficient evidence against them.
Such releases also helped to prevent prolonged and unnecessary pre-trial
detention periods. Certainly, the United Nations has much to learn from
INTERFET’s approach, and the way in which it helped to balance the
key tensions of its operation, and it would also be wise to heed the advice
of Scott Carlson on the potential use of emergency mobile courts.

Addressing past atrocities and serious crimes

Issues raised

The evidence presented in this work has shown that burdening a newly
established judiciary with cases that concern war, inter-ethnic or other
serious crimes committed during a conflict is highly problematic, in that
it draws away much-needed resources from the judicial system, contrib-
utes to a burgeoning backlog of cases and expects local jurists to work on
cases that demand the expertise of much more experienced and better-
qualified individuals. Furthermore, particularly the UN’s experience in
East Timor highlighted that if it is agreed that some sort of trials for past
atrocities are held, it is important for the entire judicial process that a
clear prosecution strategy is agreed upon prior to the commencement
of any trials.73 The problems in both Kosovo and East Timor highlighted
that the United Nations cannot afford to proceed on the cheap so that it
can avoid the greater expenditures of ad hoc tribunals such as the ICTR
 LEGAL AND JUDICIAL REFORM RECONSIDERED 167

and ICTY:74 in trying to avoid large expenses, it has not only been un-
fair towards the persons who have been convicted in trials which cannot
be deemed to be fair, but it has actually undermined several key objec-
tives of the UN’s rule-of-law reform efforts, such as the advancement of
high standards of justice through the tribunals and the establishment of
a sustainable legal system. Where up-to-standard prosecutions cannot be
undertaken, other policy options need to be considered, and thus the
stance taken here is that something is not better than nothing when it
comes to justice, and standards of justice cannot be compromised for the
sake of appearing to prosecute.75

Responses from academics and practitioners, analysis and

discussion

The broad question of how to address past atrocities in the aftermath of

a conflict, or after the fall of a dictatorial regime, has been the subject of
countless studies. The answer to this question has completed a full cy-
cle: starting with the Nuremberg and Tokyo trials after the Second World
War, which saw the prosecution of war criminals, there was a prolonged
period during the Cold War when impunity ruled the day. During the
1980s and early 1990s the commonly accepted approach was the granting
of amnesties, frequently coupled with a truth and reconciliation process.
In the mid-1990s the establishment of the ICTY and ICTR saw the first
major attempts since the end of the Second World War to prosecute the
perpetrators of genocide, war crimes and crimes against humanity. The
notion that there can be no peace without justice took a firm hold among
peace researchers, and there have been few challenges to the argument
that a sustainable peace requires justice.76 The push for prosecutions
for past atrocities led to the establishment of hybrid internationalized
national panels in Kosovo, East Timor and Bosnia; of the International
Criminal Court; and of internationalized criminal courts for Cambodia,
Sierra Leone and Lebanon.
However, the view that there can be no peace without justice, and that
challenging impunity is always in the best interest of a war-torn society,
was not embraced by all, and found some of its most ardent critics in
communities which have suffered some of the worst atrocities. For in-
stance, Peter Onega, the chairman of the Ugandan Amnesty Commis-
sion and a leading figure of Uganda’s Acholi community, one of the worst
affected by the Lord’s Resistance Army (LRA), went to the Hague to
complain about the ICC’s decision to issue warrants for various LRA
members. Fearing that the LRA leaders could react to such warrants as
“desperately as a wounded buffalo” and that this could in turn lead to
more atrocities, he argued that “The priority should be peace first and
168 UNITED NATIONS JUSTICE

justice later.”77 Similarly, in a report of October 2004, the Sierra Leone

Truth and Reconciliation Commission argued that “disallowing amnesty
in all cases would be to deny the reality of violent conflict and the urgent
need to bring such strife and suffering to an end”, and further that “those
who argue that peace cannot be bartered in exchange for justice, under
any circumstances, must be prepared to justify the likely prolongation of
an armed conflict”.78 Furthermore, East Timor’s President Xanana Gus-
mao stated that it is “not necessarily” true that the “absence of justice
. . . is a fundamental obstacle in the process of building a democratic
society”.79
But despite such objections, it is unlikely that the trend to prosecute
will change in the near future. It may be true that criminal prosecutions
are not always regarded as a “categorical good”: Chesterman highlights,
for example, that “there seems to be a general acceptance of South
Africa’s decision to grant amnesties rather than prosecute”.80 Never-
theless, the establishment of the ad hoc tribunals for Yugoslavia and
Rwanda, and of the various internationalized criminal courts, chambers
and tribunals suggests that the notion that the perpetrators of atrocities
must be held accountable for their crimes rather than granted amnesties
seems to have taken root in the international community.81
While the trend is unlikely to change soon, academics and practition-
ers have recognized a number of the problems which prosecuting past
atrocities created in Kosovo and East Timor. In the first instance, the ap-
proach the United Nations took was overly concerned with prosecutions
for the sake of prosecutions, or for the sake of appearing to prosecute: in
regard to East Timor in particular, the co-founder of one of the NGOs
which monitored the judicial reform efforts, the Judicial System Monitor-
ing Programme, observed that appearing to do something about pros-
ecuting atrocities was more important than actually prosecuting atrocities,
and that prosecutions were more about making gestures and seeming to
do the right thing than actually pursuing justice; according to him, the
hybrid tribunal that was set up was like a “trophy to be put on UN book-
shelves”, presumably meaning nice to show off, irrespective of the sub-
stance of the achievement.82 Trials in both territories were undertaken
without regard for the fairness and standards of the proceedings, and in
the case of East Timor without regard for the fairness of trying low-level
perpetrators while giving concessions to some of their higher-ranked col-
leagues in exchange for the return of refugees, and of not prosecuting
Indonesian military commanders.
As Suzannah Linton, who worked within the East Timorese system,
argued, the hybrid model might encourage the international community
wrongly to equate prosecutions with actual justice, lead them to “a false
sense of accomplishment” and complacency, and inadvertently to under-
 LEGAL AND JUDICIAL REFORM RECONSIDERED 169

mine “the very standards of justice and the rule of law” that it was in-
tended to promote.83 Linton’s overall assessment was that:

The Serious Crimes project best illustrates the need for UNTAET to take a
more realistic and practical approach that considers the actual conditions in
East Timor. It is highly commendable to have a “state of the art” legal regime
for prosecuting international crimes in domestic courts but, before embarking
on the exercise, it is fundamental to consider whether the existing (or incom-
ing) system can support such a venture . . . In a still fragile and volatile society,
dangerously high expectations have been created. Failure of the enterprise may
have serious consequences for the future peace and stability of East Timor.84

Such assessments have led some observers, such as Suzanne Katzen-

stein, to argue that since opting for a compromised justice mechanism in
the short term may actually undermine future efforts to establish justice,
choosing no justice at all may in fact be preferable to a justice mecha-
nism that is compromised.85 While this assessment has some merits, the
UN’s desire to put an end to impunity and shift away from amnesties
means that it is unlikely to opt for a course of no justice and is likely
to continue to follow a policy of pursuing prosecutions, irrespective of
whether it is involved in governance operations again or whether it does
so in the context of peace assistance missions.
Given that the pursuit of prosecutions is likely to be the preferred
UN choice in addressing past atrocities, and that academics and practi-
tioners have recognized some of the problems that occurred in Kosovo
and East Timor, the literature on the subject holds surprisingly few
answers as to the ways in which some of the problems can be sur-
mounted. As indicated above, Suzannah Linton does suggest that a clear
prosecution strategy has to be agreed upon prior to the commencement
of any trials; and David Cohen indicates that the United Nations cannot
pursue justice “on the cheap”86 in an effort to avoid the expensive mech-
anisms of the ICTY and the ICTR.87 But apart from these few sugges-
tions and the occasional critique of the hybrid court model, such as that
of James Cockayne, the literature largely fails to discuss what alternatives
there may be to that model.
This may be the case partly because some academics and practitioners
are at a loss as to what other methods there may be,88 and partly because,
despite the problems, a number of academics feel that internationalized
or hybrid national criminal courts are “globally to be praised”.89 For in-
stance, Antonio Cassesse strongly believes that “in the long term, resort-
ing to mixed or internationalized criminal courts and tribunals may prove
to be one of the most effective societal and institutional devices of the
many which are at present available to international law-makers”.90 Luigi
170 UNITED NATIONS JUSTICE

Condorelli and Theo Boutruche also write favourably of the nationally

based hybrid court model, because they feel that “it is necessary that the
international judge not be distant, but close to the country, and that he is
perceived as such” and that the perception must be advanced that “inter-
national justice is not the monopoly of a unique court but also belongs to
some tribunals composed of national judges”.91
However, one academic in particular – Alain Pellet – is not only criti-
cal of the problems with internationalized criminal courts, but also offers
an alternative proposal as to how past atrocities can be addressed in
the aftermath of a conflict. He does recognize that one of the hybrid
court model’s “main advantages over truly international bodies is their
‘proximity’ – proximity to the place where the crime has been commit-
ted, proximity to the evidence, proximity to the population more direct-
ly concerned”.92 However, he believes there is a danger that proximity
may result in partiality, and argues that “trials rendered ‘on the spot’ in
a post-trauma context are more open to criticism and to the dangers of
revenge than expatriated trials in more remote countries where the heat
can be more easily taken out of the situation”.93 Furthermore, Pellet makes
the case that “when . . . serious crimes are at stake they are ‘of concern
to the international community as a whole’, as stated in the Preamble
to the Rome Statute of the ICC, and it is therefore important that they
not be confiscated by any particular state, including the one in which the
crime has been committed or of which the victims or the authors are na-
tionals”.94 Also, he feels that essentially “internationalized criminal courts
cloud the issues”95 because:

They are an expression of the international community’s concerns but, at the

same time, they are part of the reconstruction enterprise of a new judicial
system in countries where the entire administration had been destroyed by
civil wars (Kosovo, East Timor) or they facilitate acceptance of accountabil-
ity to justice of former national rulers (Cambodia and, in some respects,
Sierra Leone) in view of a purely national process of reconciliation. They
bear witness to the will of the international community to have its own per-
emptory norms respected and to fight impunity but, at the same time, they will
generally answer a national need and, at least to some extent, fulfil national
purposes.96

He is willing to concede that mixed criminal tribunals “are a lesser

evil than purely national justice in the absence of a truly international
competent tribunal”, but is nevertheless highly critical of the fact that the
“tribunals are created much more with a view to strengthening the local
judiciary than to rendering international justice and punishing the per-
petrators of international crimes as such”.97
As the case studies have demonstrated, the internationalized criminal
courts in Kosovo and East Timor have anything but strengthened the local
 LEGAL AND JUDICIAL REFORM RECONSIDERED 171

judiciary, and have not rendered the type of justice with which the inter-
national community would wish to associate. Pellet’s criticisms of
internationalized criminal courts lead him to ask the question whether in-
stead of internationalizing national courts, a case can be made for nation-
alizing international tribunals, a result which he argues would not be that
far off what was achieved with the Special Court of Sierra Leone, which
“comes close to a truly international criminal tribunal but with an impor-
tant nuance: it is statutorily, and then symbolically, a national court”.98
In making this proposal for the nationalization of international tribunals,
he also points to Antonio Cassesse’s proposal for dealing with the drug-
trafficking problem in Colombia, namely that it would be appropriate to
create an international tribunal which can have the competence to ad-
dress drug trafficking and related crimes which would not normally fall
within the realm of a crime against humanity or a war crime.99
While Pellet only speculates about the particulars of establishing a na-
tionalized international tribunal, such as its composition and location, is-
sues of safety and security, the manner by which it would be created and
the type of cases it would take on, he is adamant that “such a new judi-
cial body would be a permanent structure, not an ad hoc creation such
as ICTY or ICTR or the existing mixed tribunals”.100 The key element
of such an international body would be the inclusion of national judges,
which could help to reassure countries, such as the United States, that
have major objections to the current ICC arrangement. The major differ-
ence between an internationalized national tribunal and an international
tribunal with national judges is that in the first case “the international
component is, so to speak, secondary, incidental; those tribunals (in-
cluding their mixed nature) answer primarily national concerns”.101
In the second scenario, on the other hand, “the concerns of the inter-
national community as a whole become predominant while at the same
time, the special interests of one or some given States would be taken
into consideration”.102
This proposal is interesting, and has certain similarities with the pro-
posed Kosovo War and Ethnic Crimes Court (KWECC).103 But while the
proposal has merit, Pellet’s apparent aversion to internationalized pro-
cesses which deal with anything but international crimes ignores the need
for certain crimes and criminals to be tried by foreign jurists and panels.
In a society which has recently experienced or is experiencing high levels
of violence, local judges may not be in a position or may not wish to be
in a position to try certain individuals or certain crimes: this may be the
case either out of fear for their own safety or because of pressures from
their local communities or ethnic or religious groups. For instance, in
cases where local war heroes are put on trial, there would be enormous
pressure on a local judge to release that individual, as was frequently the
case in Kosovo. Even if such an individual is not charged with a crime
172 UNITED NATIONS JUSTICE

against humanity or a war crime, but is linked to the illegal arms trade,
prostitution rings, drugs, murders, human trafficking or petty crimes, the
individual may be immune to prosecution because of his or her status in
the community.
Thus a nationalized international tribunal which can hear cases relat-
ing to non-international crimes would in fact be much more useful in
a post-conflict context than simply a panel that can hear international
crimes cases. The KWECC structure was a step in the right direction, but
interestingly, even Pellet does not discuss the potential benefits which
that court would have brought to Kosovo. His proposal, coupled with
the need for certain non-international crimes cases to be heard by in-
ternational judges, points towards the potential benefits which marrying
the KWECC structure with that of the Regulation 64 panels, as Kosovo’s
mixed courts came to be known, would have had in Kosovo. If national
and international judges sitting on nationalized international panels had
been able to hear not only high-profile cases where a crime under inter-
national law had been committed, but importantly also high-profile cases
of crimes which would not normally be classed as an international crime,
such as drug trafficking, extortion, money laundering, kidnapping etc., as
was the case with the Regulation 64 panels, this would have alleviated
the substantial backlog created by such complex cases within the regu-
lar courts, freed up much-needed resources and thus benefited the entire
judicial reform effort in Kosovo.
The idea of a nationalized international tribunal has clear merits, since
it would help to remove war and at least some of the serious crimes trials
from the domestic courts – trials which we saw placed an unacceptable
burden on a newly formed judiciary. The involvement of national judges
in such international tribunals has the potential not only to help to re-
assure countries that have objections to an internationalized process, but
also to give such countries a degree of ownership over the justice process,
and in this respect also over justice, which they might otherwise not have.
However, the view that such a nationalized international tribunal should
have a permanent structure may be overly ambitious: given the recent
establishment of the ICC, there may be less incentive in the international
community for the establishment of a further permanent structure. Thus
the establishment of nationalized international panels locally and ad hoc
may find more favour.
A case for the establishment of such an ad hoc tribunal can be made
on the grounds of the argument mentioned above that proximity to the
population which was affected, to the evidence and to the location where
the crime was committed has certain benefits. While trials held in a post-
conflict environment do carry the risk that they may be polarizing and
can result in increased tensions, they also have the benefit of rendering
justice where it is needed most. Some academics have argued that lo-
 LEGAL AND JUDICIAL REFORM RECONSIDERED 173

cating ad hoc tribunals far away from the place where the crimes were
committed has not helped the country in question to re-establish its ju-
dicial system and rebuild the rule of law.104 In delivering justice locally,
internationalized national panels which have heard serious crimes cases
were perhaps considered to be a step in the right direction; however, as
this book has shown, such panels have themselves frequently undermined
the very goal of the establishment of a sustainable legal system. In this
respect, the nationalization of international panels, which can be located
in the territory where the crimes took place, can be a move in the right
direction when it comes to remedying the problems which the current ap-
proach creates.
It could also be argued that a case for such a panel can be made on
the grounds that the legal regime established under the Rome Statute
for the ICC is not all-encompassing, and it is possible to imagine situa-
tions where international crimes are committed neither in a state party
to the statute nor by a national of a state party to the statute.105 In such
circumstances, and when a state has not given consent for the ICC’s ju-
risdiction,106 the proposed court would have jurisdiction over such cases
and try them within the territory where the crimes were committed. Ad-
dressing the atrocities of Saddam Hussein’s regime in Iraq through such
a process would have given the trials more international legitimacy, and
shielded them from the criticisms that victors’ justice was rendered in the
trials of Saddam and his former high-level officials.
What remains unclear about the proposed nationalized international
tribunal is the nature of its relationship with the ICC, and particularly
the question as to whether it would have concurrent jurisdiction with the
ICC or would simply be designed to complement the work of the ICC.
Mariacarmen Colitti’s proposal for symbiosis between the ICC and inter-
nationalized national panels, where the panels focus on low-rank suspects
of international crimes and the ICC targets the high-profile individuals,
could potentially offer an answer to this unaddressed question.107 Colitti’s
suggestion as applied to the proposed tribunal would see the nationalized
international tribunals defer to the competence of the ICC in high-profile
cases, and in this way the burden of trials could be shared between the
ICC and Pellet’s proposed court.
A further issue that remains unclear in relation to the establishment
of such a court is that of funding. As we saw in Chapter 3, the problem
of funding was arguably the biggest obstacle to the creation of KWECC.
There is no question that the type of court proposed by Pellet can be a
big expense for a mission with a limited budget, and funding would be
problematic.108 However, given the level of involvement of international
judges and prosecutors in Kosovo and East Timor, it is unclear what
the budgetary difference would be in allocating some internationals to
a separate court and providing them with an international staff. It
174 UNITED NATIONS JUSTICE

would certainly be a great expense, but such financial questions are often
a matter of political will, and should political will exist, along with the
realization that addressing certain serious crimes in internationalized na-
tional panels is detrimental to the establishment of a sustainable justice
system, it is conceivable that enough assets will be freed up for the crea-
tion of such a court.
Overall, there needs to be a change in attitude within the international
community as far as legal and judicial capabilities for governance or even
peacebuilding missions are concerned. The Brahimi Report pointed out
in 2000 that “the United Nations has faced situations in the past decade
where the Security Council has authorized the deployment of several
thousand police in a peacekeeping operation but has resisted the no-
tion of providing the same operations with even 20 or 30 criminal justice
experts”.109 While a nationalized international court may be expensive,
the investment in other rule-of-law reform efforts may be a waste if a
sustainable legal system is not created. There may indeed not be enough
political will in the international community to create such nationalized
international tribunals. Certain states may not wish to set a precedent
that may at some stage become a problem for them, and this hurdle might
be more difficult to overcome than any budgetary problems. However,
unless such budgetary and political hurdles are overcome, the United
Nations may find itself repeating its peacebuilding efforts in regions
which deteriorate into violence after the withdrawal of the international
community, and where the organization has failed to advance high stand-
ards of justice and effectively create sustainable mechanisms of justice.
A nationalized international panel would not only ensure that complex
cases do not drain the resources of the fledgling judiciary, but also that
the high standards of international justice required for the trial of the
most serious atrocities and high-level officials would be observed. This
could be ensured by exclusively recruiting the most talented international
lawyers to work within such a court. Furthermore, ensuring that such a
court operates outside the regular justice system would force UN ad-
ministrators to consider options other than prosecution, such as amnes-
ties, if there is not sufficient will locally and internationally to provide
the court with adequate funding and resources. Finally, the establishment
of such a court would better balance the tension that exists between the
need for accountability for past atrocities and the need to deliver justice
in accordance with international standards. Importantly, it is imperative
that the establishment of such nationalized international courts, or of any
mechanisms designed to deal with past atrocities for that matter, should
follow and not precede any decisions on a prosecution strategy for past
atrocities. While in some cases this would include only a select few high-
level officials responsible for the past violence, as was the case in Sierra
 LEGAL AND JUDICIAL REFORM RECONSIDERED 175

Leone,110 other arrangements may adopt a broader prosecution strategy

and also hold lower-ranked officials to account.

Local actors in the legal and judicial reform process

Issues raised

The Kosovo and East Timor case studies have clearly demonstrated that
local empowerment early on in a mission can be detrimental to the goal
of establishing a sustainable legal system. In Kosovo the UN’s decision
to allow local jurists to take on all types of cases from the outset cre-
ated many problems with judicial impartiality and independence; and the
decision to hand over outright ownership of the judicial process virtu-
ally from the beginning of the mission in East Timor had negative conse-
quences for overall judicial reconstruction and the integrity of the judicial
process. What the East Timor case study in particular has demonstrated
is that while local ownership over the judicial process must indeed be the
end goal of a mission, it cannot be the means to the end of establishing a
sustainable legal system. And what both case studies have shown is that
allowing poorly trained local actors to work as jurists can lead to fre-
quent legal complications resulting from the jurists’ lack of qualifications
and the potential for ethno-religious or political bias.

Responses from academics and practitioners, analysis and

discussion

The broad problem with the international community’s desire to hand

over ownership too quickly in governance operations has been recog-
nized in the literature: in his book You, the People, Simon Chesterman
addresses the problem and correctly asserts that “Local control of pol-
itical power is appropriately seen as the end of a transitional administra-
tion, but if an international actor has assumed some or all governmental
power then local ownership is surely not the means.”111 He goes on to
explain that:

It is both inaccurate and counter-productive to assert that transitional admin-

istration depends upon the consent or “ownership” of local populations. It is
inaccurate because if genuine local control were possible then a transitional
administration would not be necessary. It is counter-productive because insin-
cere claims of local ownership lead to frustration and suspicion on the part of
local actors.112
176 UNITED NATIONS JUSTICE

What is broadly true for the international governance of territory is also

particularly true for legal and judicial reform. Chesterman recognizes the
particular problem with the granting of too much power too quickly in
relation to judicial reform: he argues that while “any foreign involvement”
in justice sector reform must “be sensitive to the particularities of that
population . . . this is not to say that . . . locals must drive this process in
all circumstances”.113 His assertion that “international engagement will
sometimes abrogate the most basic right to self-governance on a tem-
porary basis”114 is something that future peacebuilders will be wise to
take into consideration when planning for justice sector reform. The case
studies have clearly highlighted what the consequences are if ownership
is handed over too soon: we saw in the East Timor chapter, for instance,
that there is a clear danger that handing over such ownership early on
can make judicial reform the hostage of local politics, with all the nega-
tive repercussions which that entails. As one observer put it, “The experi-
ence of East Timor reveals all too well the risks of allowing the Tribunal
or the defence function to become the hostage of local politics to the
detriment of the right of each defendant to a fair trial and an adequate
defence under international standards.”115 As a consequence of these and
similar negative repercussions on the overall reform efforts, judicial ad-
ministration needs to be one of the last areas of governance over which
the international community should relinquish its ownership.
But even if ownership over the judicial administration process remains
in the hands of international actors working in a particular territory,
what answers does the literature hold for the problem of employing lo-
cal actors with very basic legal qualifications, little legal experience and
a potential for ethno-religious or political bias to work within a fledgling
judiciary? Academics and practitioners alike have recognized the prob-
lems with the prior approach, and in essence their response lies in the
suggestion for a more rapid and immediate introduction of international
jurists into the judicial system. Carlson highlights that staffing numbers
for international judicial positions have been abysmal in comparison to
those allocated for police reform, civil affairs, and human rights units, and
argues that the provision of “a sufficient number of international staff in
mission budgets” must be “commensurate with the mission mandate and
needs on the ground”. He also recognizes that “Delays in staffing rule of
law components undermine credibility and harm mission start-up” thus
arguing for a more rapid deployment of international jurists.116 In this re-
spect, Chesterman proposes that “Measures to create a standby network
of international jurists who could be deployed at short notice to post-
conflict areas would facilitate the establishment of a judicial system.”117
While Chesterman envisages that such jurists would operate primarily as
trainers and mentors, Strohmeyer’s similar proposal envisions that they
 LEGAL AND JUDICIAL REFORM RECONSIDERED 177

would also work as international judges and prosecutors within the sys-
tem. Strohmeyer writes that:

It is . . . imperative for the United Nations to develop a standby network (as

opposed to a standing capacity) of experienced and qualified international
jurists that can be activated at any given time. In view of the significant practi-
cal differences between the common-law and civil-law systems, experts in both
systems should be recruited in sufficient numbers to ensure that they can ad-
equately respond to the specific needs of the territory to be administered. Since
quick deployment is crucial to the effectiveness and credibility of an opera-
tion in its early stages, the United Nations should create a network based on
standby agreements with member states, agencies, and academic institutions
to facilitate mobilization of these jurists on short notice, within a few days, if
required. If provided with ongoing training in international legal and human
rights standards, and updated information on international instruments and ju-
dicial developments, the members of this network would eventually constitute
a sufficient number of qualified international lawyers, who could work as train-
ers, mentors, judges and prosecutors.118

The proposal for an early introduction of international jurists into the

local judicial system appears to be very sound given the evidence pre-
sented in the case-study chapters. Such a move would not only fill recruit-
ment gaps and increase the capacity of the judiciary to hear cases early
on, thereby preventing once again the build-up of a backlog of cases, but
would also ensure that international jurists could act as mentors and/or
advisers to local jurists. Certainly, however, the implementation of this
proposal would have its own complications: firstly, states are jealous of
their competent legal experts, and may not be prepared to spare them for
UN missions;119 and secondly, Chesterman himself doubts whether such a
network of jurists would “be able to deploy in sufficient time and num-
bers to establish even an ad hoc system on their own”.120
However, if these political and operational obstacles can be sur-
mounted, introducing international jurists from the very beginning of a
governance operation where a judiciary has to be established anew, while
broadly retaining ownership over the judicial process, holds the potential
to strike a better balance between the need for international governance
to a high standard and local empowerment for the purposes of establish-
ing a sustainable judicial system. The UN’s initial approach in Kosovo
and East Timor shifted this balance too much in favour of local empow-
erment, to the detriment of the overall legal and judicial reform in both
territories. But retaining ownership over the judicial process and the in-
troduction of international jurists from the beginning would address this
tension in a way which would not undermine the UN’s efforts: it would
prevent many of the violations of legal principles and judicial norms and
178 UNITED NATIONS JUSTICE

standards which did occur, and would focus the UN’s approach on local
ownership as the end goal of its efforts and not the means to the estab-
lishment of a sustainable legal system.

Notes
1. See Chapter 1.
2. Evans (1993: 56).
3. Ibid.
4. Plunkett (1998: 68).
5. Plunkett (2003: 215).
6. UN General Assembly and Security Council (2000b: para. 79) (Brahimi Report).
7. Ibid., para. 81.
8. Ibid., para. 80.
9. Ibid., para. 83. This particular recommendation was based on the advice of Christopher
Lord. See Annex II of the Brahimi Report; on this see also Oswald (2004).
10. UN General Assembly and Security Council (2000c: para. 31); see also Chapter 1.
11. Strohmeyer (2001b: 62).
12. Ibid.
13. Beauvais (2001: 1156–1157).
14. Fairlie (2003: 1059).
15. While some propose the implementation of comprehensive model codes (Fairlie, ibid.),
others argue that a model code should not provide any comprehensive and universal
definitions of criminal laws and/or procedures, but “should be limited to serious crimes
and the set of procedural issues surrounding searches, seizures, and pre-trial detention”
(Beauvais, 2001: 1157, paraphrasing an interview with Hansjoerg Strohmeyer).
16. UN Security Council (2004: paras 16 and 64(h)).
17. Colette Rausch at the US Institute of Peace and Vivienne O’Connor at the Irish Cen-
tre for Human Rights, based at the National University of Ireland at Galway, led this
project.
18. The fact that the project was organized in cooperation with the UN’s Office of the
High Commissioner for Human Rights (OHCHR) was not initially clear to the
OHCHR itself, a point clarified in an interview. This indicates the UN’s initial level of
involvement and interest in such an endeavour.
19. Interview with academic present at the review conference, June 2005.
20. Ibid.
21. See UN General Assembly and Security Council (2000b: para. 82) (Brahimi Report).
22. Interview with academic present at the review conference, June 2005.
23. This matter is discussed at length by Vivienne O’Connor (2005); O’Connor and Rausch
(2005).
24. Five potential uses were particularly identified by the codes’ creators: see O’Connor
and Rausch (2007).
25. UN Security Council (2004: para. 57).
26. Ibid, para. 30.
27. Ibid.
28. Ibid., p. 1.
29. Ibid, para. 15.
30. Ibid., para. 16.
31. Ibid., para. 17.
 LEGAL AND JUDICIAL REFORM RECONSIDERED 179

32. Ibid. para. 64(h).

33. Ibid., para. 17, emphasis added.
34. Ibid., emphasis added.
35. For a good discussion of the UN’s approach in Afghanistan see Chesterman (2002b).
36. Chesterman (2004: 181–182), emphasis added.
37. UN Security Council (1999c: para. 13); cited here in Kelly (2000: 4).
38. Kelly (ibid.); as Kelly (ibid., n. 11) explains, a “serious offence included murder, man-
slaughter, grievous bodily harm, rape, possession of a weapon with intent to injure,
carrying a weapon with criminal intent, causing an explosion likely to endanger life or
property, kidnapping, and looting”.
39. Conflict Security and Development Group (2003b: para. 218).
40. “Convention Relative to the Protection of Civilian Persons in Time of War” – see
Treaties list.
41. Kelly (2000: 4).
42. Conflict Security and Development Group (2003b: para. 218); see also Kelly (ibid.).
43. Kelly (ibid.).
44. Michael Kelly (ibid.) explains that “while GC IV did not apply de jure in this situation
because the Indonesian Government had consented to INTERFET’s deployment, the
Convention did provide a helpful framework for the regulation of the relationship be-
tween INTERFET and the civilian population in East Timor”.
45. Ibid., p. 5.
46. Ibid. See “Agreement between the Republic of Indonesia and the Portuguese Republic
on the Question of East Timor” – see Treaties list.
47. Kelly (ibid.).
48. Article 42(2) of Geneva Convention IV allows for voluntary detentions: “If any per-
son, acting through the representatives of the Protecting Power, voluntarily demands
internment, and if his situation renders this step necessary, he shall be interned by the
Power in whose hands he may be.” On this see also Kelly (ibid.: 5).
49. Kelly (ibid.: 6).
50. Ibid.; essentially, non-voluntary detainees would be held for up to 96 hours at the dis-
cretion of the force commander, after which the reviewing authority would need to
make a decision within 24 hours on the continued detention of an individual, a deci-
sion which could have one of three outcomes: firstly, release with or without condition;
secondly, detention pending trial by a competent court or other tribunal; and thirdly,
detention of an individual pending trial by a competent court or tribunal or for a fixed
period of time, whichever would come first.
51. UN Security Council (2000a: para. 45).
52. Kelly (2000: 3).
53. OSCE Mission in Kosovo (2002), section 4.
54. Ombudsperson Institution in Kosovo (2001a).
55. Amnesty International (2001a).
56. Human Rights Watch (2002a: 386).
57. See also Caplan (2005: 65); Chesterman (2004: 168).
58. Judicial System Monitoring Programme (2001).
59. See, for instance, Friman (2004: 336).
60. UN Security Council (2004: para. 28), emphasis added.
61. See, for instance, Judicial System Monitoring Programme (2001, 2002b); Cohen (2002).
62. See “Universal Declaration of Human Rights” – see Treaties list.
63. See “African Charter on Human Rights and Peoples’ Rights” – see Treaties list.
64. For a good overview on the topic of states of emergency and derogations from human
rights see Livingstone (2002).
180 UNITED NATIONS JUSTICE

65. See Article 4(1), ICCPR.

66. See Article 15 of the ECHR and Article 27 of the ACHR.
67. Article 42 of Geneva Convention IV, for instance sets out that “The internment or
placing in assigned residence of protected persons may be ordered only if the security
of the Detaining Power makes it absolutely necessary.” Article 78 reiterates that “If
the occupying power considers it necessary, for imperative reasons of security, to take
safety measures concerning protected persons, it may, at the most, subject them to as-
signed residence or internment.” Certainly, such procedures are subject to the right to
an appropriate appeal system, as required by further provisions in Article 78.
68. For an overview of the challenges of reconciling customary justice mechanisms with
the statutory judiciary in East Timor see Hohe and Nixon (2003); Mearns (2002); Judi-
cial System Monitoring Programme (2002c).
69. See International Commission of Jurists (2002).
70. Such a parallel customary-statutory legal system has been in existence in Afghanistan
for many decades, and the statutory system has been ignored; on this see Lau (2002);
Thier (2004).
71. See Oswald (2000); Kelly (2000).
72. UN Department of Peacekeeping Operations (2006), p. 27. Scott Carlson authored this
document.
73. On the importance of a coherent prosecution strategy see De Bertodano (2004: 83–84).
74. Cohen (2002: 7) also makes the point that the “United Nations should not commit
itself so deeply to achieving a tribunal that it is willing to compromise the integrity of
an institution to which it attaches its name”.
75. On the negative impact which appearing to prosecute has on justice sector reform see
Linton (2001a); Katzenstein (2003) also makes the point that no justice may be prefer-
able to a flawed justice.
76. On the issue of whether there can be no peace without justice see Chesterman (2001b).
77. Mr Onega is cited here in OCHA (2006: 10).
78. Ibid., p. 11.
79. Ibid., p. 13.
80. Chesterman (2004: 164).
81. Please note in this regard Colette Rausch’s (2006) excellent discussion of various spe-
cialized mechanisms to prosecute and adjudicate past atrocities, but also to combat
serious crimes in a post-conflict context. As for the notion that prosecutions for past
atrocities must be pursued, note that it led the Inter-American Court of Human Rights
to require the government of Peru to repeal two controversial amnesty laws.
82. Katzenstein (2003: 272), citing an interview with Christian Ranheim of the JSMP.
83. Suzannah Linton (2001a: 177), cited in Katzenstein (ibid.: 278).
84. Linton (ibid.: 178).
85. Katzenstein (2003: 277–278).
86. Cohen (2002).
87. The UN’s willingness to pay a substantial portion of the expenses of the Extra-
odinary Chambers for Cambodia is an indication that it may have learned this lesson:
the United Nations agreed to pay US$43 million of the US$56.3 million budget for the
trials and the Cambodian government agreed to provide the remaining $13.3 million;
see UN News Service (2007).
88. This was my impression in a number of the interviews I conducted on the matter.
89. Pellet (2004: 437). Pellet is critical of the internationalization of national criminal
courts, and states that he is not persuaded by the suggestion that such hybrid courts
are to be praised.
90. Cassese (2004: 13). Antonio Cassese is currently the president of the Special Tribunal
for Lebanon and is a former president of the ICTY.
 LEGAL AND JUDICIAL REFORM RECONSIDERED 181

91. Condorelli and Boutruche (2004: 435).

92. Pellet (2004: 438); Alain Pellet is a professor at University of Paris X – Nanterre, and a
member and former chairman of the International Law Commission.
93. Ibid.
94. Ibid.
95. Ibid.
96. Ibid.
97. Ibid., p. 440.
98. Ibid., p. 441–442; by nationalizing Pellet implies here that certain elements which
would normally be associated with domestic courts, such as judges from a particular
national jurisdiction, statutes, etc., could be introduced into international tribunals.
99. Ibid., p. 442; see Cassese (2004: 10).
100. Pellet (ibid.).
101. Ibid., p. 443.
102. Ibid.
103. As we saw in Chapter 3, KWECC was in essence envisioned as an international tri-
bunal with national representatives sitting as judges on mixed panels; it was to hear
cases that the ICTY did not have the capacity to take on, and was to have concurrent
jurisdiction with both the ICTY and the domestic courts.
104. See, for instance, Colitti (2004: 425).
105. Colitti (ibid.: 419–420) explains that “Article 12 of the Statute provides that the Court
may exercise jurisdiction when either the state of the territory where the crime is com-
mitted (ie the territorial state), or the state of nationality of the accused (ie the national
state), is party to the Statute.”
106. Colitti (ibid.: 420) further explains that paragraph 3 of Article 12 of the Statute “also
allows states which are not party to the Rome Statute to give their consent to the
Court’s jurisdiction by way of an ad hoc declaration filed with the Registrar”. For a
good introduction to the Rome Statute of the International Criminal Court see Politi
and Nesi (2001).
107. See Colitti (ibid.: 426); she explains in footnote 48 that this is “exactly what ICTY and
the Office of the High Representative in Bosnia Herzegovina . . . planned to do to help
ICTY complete its mission”. For a further discussion of the co-existence of the ICC
and other internationalized criminal bodies see Benzing and Bergsmo (2004).
108. For more on the financing of internationalized criminal courts and tribunals see Inga-
dottir (2004).
109. UN General Assembly and Security Council (2000b: para. 40).
110. For a good introduction to the Special Court for Sierra Leone see Linton (2001c);
Cerone (2002); Schabas (2003).
111. Chesterman (2004: 5).
112. Ibid., p. 239.
113. Ibid., p. 182.
114. Ibid.
115. Cohen (2002: 7).
116. Carlson (2006: 10).
117. Chesterman (2004: 181).
118. Strohmeyer (2001b: 61–62).
119. Interview with former judge working as an international official in Kosovo, August
2003.
120. Chesterman (2004: 182).
182

Conclusion

This book set out to demonstrate that in its governance operations, the
UN’s approach to legal and judicial reform was not well suited to the
organization’s goal of establishing sustainable legal systems in the ter-
ritories it administered, most notably in Kosovo and East Timor. When
the UN took on the Security Council’s mandates for the governance
of these two territories in 1999, precedents as to how the organization
could undertake rule-of-law reform responsibilities in such missions were
few, and understandably it leaned to a certain extent on models derived
from military occupation. However, the portrayal of the UN’s approach
as comprising a number of ad hoc decisions taken on the basis of the
particular exigencies and circumstances of the situation which UN ad-
ministrators found in the territories under consideration is not valid.
In fact, the key decisions clearly fit within a broader pattern of assump-
tions and ideas which guided the approach to reform, though their
practical application was hampered by lack of funding and adequate
resources.
These assumptions were that impunity had to be ended, the transition-
al legal framework had to be based on previously applicable legal codes,
the court structure had to reflect and be similar to the structure that
had existed previously in the territory, internationally recognized human
rights standards had to be incorporated into the locally applicable legal
framework and there had to be local participation in the judicial process.
And thus peacebuilders chose to implement legal frameworks based on
previously applicable legal codes in the respective territories from the

United Nations justice: Legal and judicial reform in governance operations

Trenkov-Wermuth, United Nations University Press, 2010, ISBN 978-92-808-1173-5
 CONCLUSION 183

beginning of the missions, and to resurrect the basic institutional struc-

tures as they had previously existed; they decided to push for an end to
impunity through the early commencement of the prosecution process
for those accused of perpetrating atrocities during the respective con-
flicts; they made the applicable law subject to a full catalogue of human
rights; and finally, they gave ownership over the judicial process to local
actors, or involved such actors in this process as judges, prosecutors and
defence counsellors.
However, instead of bringing the United Nations closer to its goal, this
approach did not make the establishment of a sustainable legal system
more likely, but detracted from that goal. In this study, Lon Fuller’s eight
principles of legality, crucial to the notion of a legal system, were used to
assess the UN’s efforts at establishing and administering a legal regime
in Kosovo and East Timor, and this assessment showed in the case-study
chapters that the UN’s approach did lead to the violation of a number
of these principles. Furthermore, 10 judicial norms derived from vari-
ous international legal instruments were employed to evaluate the UN’s
judicial reform efforts, an evaluation which demonstrated that key aspects
of the UN’s approach also led directly to the violation of these norms.
And it was shown that the approach led to major local opposition to
various UN decisions on justice sector reform in both Kosovo and East
Timor, and in some instances to increased levels of violence and legal
and political destabilization.
Among the reasons why the main elements of the UN’s approach were
not suited to establishing a sustainable legal system in these territories is
the fact that they fail to balance adequately some of the key tensions at
the heart of governance operations. These tensions stem from the anti-
nomies of the missions’ need to balance the demands for order and security
on the one hand and justice and rights on the other; the need to govern
to a high standard while empowering the community through local own-
ership of institutional processes; and the need to hold the perpetrators of
crimes accountable while delivering justice within a framework of human
rights. Experience suggests that failure to balance these tensions risks
popular rejection, increases the risks of political instability and violence
in a territory and holds the potential for key legal and judicial principles
to be violated.
The book also expounded several issues raised by the UN’s experi-
ence of legal and judicial reform in Kosovo and East Timor, and explored
some of the responses from academics and practitioners on the various
challenges which a mission faces in regard to such reforms, trying to link
these issues to ideas which have emerged in the literature on methods
that would be more suited to the re-establishment of a legal system in
a post-conflict environment. The case studies show that implementing a
184 UNITED NATIONS JUSTICE

comprehensive transitional legal framework based on prior legal codes

from the beginning of a mission ignores the need for local actors to de-
bate the choice of law and be involved in the selection of the applica-
ble law, so that the legal framework can be locally acceptable and thus
sustainable. In this respect, the book hints at the need for an emergency
framework which can quickly fill a legal vacuum. Simon Chesterman’s
proposal for the initial imposition of martial law and the implementa-
tion of a basic legal framework as a potential solution to the problem is
thus sensible; INTERFET essentially adopted such an approach in East
Timor, and its Detainee Ordinance could serve as a model for future
emergency legal frameworks.
Furthermore, the application of a full catalogue of human rights from
the beginning of a mission not only ignores its security needs during
the emergency phase, but also forces a mission to violate the standards
and principles that it has itself implemented. While the literature does
not offer any suggestions as to how a UN mission can adequately bal-
ance its obligations on the one hand to re-establish law and order on the
ground in what is frequently a very challenging security situation, and on
the other hand to observe and protect human rights to the fullest extent
possible, an answer to this dilemma can be found in international legal
instruments which allow for the derogation of certain rights in times of
public emergency. The issue of derogation not only needs to be explored
further in the literature, but importantly it has to be taken seriously if
problems like those encountered in Kosovo and East Timor are to be
avoided in the future.
The case studies showed that local ownership of the judicial process
from the beginning of a UN governance operation cannot be the means
to the end of achieving a sustainable legal system, and that the involve-
ment of poorly trained local actors in the judicial process as judges and
prosecutors leads to various legal and judicial problems. Thus this work
argues that judicial administration must be one of the last areas of gov-
ernance over which the United Nations should relinquish its ownership;
however, the question of which areas of governance must remain under
international control the longest in administration missions is still insuf-
ficiently explored in the literature, and further research on this topic is
warranted.
Moreover, on the issue of the extent to which local actors can be in-
volved in the judicial process early on in a mission, the book has shown
that where there is no meaningful local capacity, the early involvement
of international jurists in the judicial process is imperative. Hansjoerg
Strohmeyer’s and Simon Chesterman’s suggestions that there is a need
for a standby network of international jurists who could be deployed
quickly and at short notice to post-conflict areas which lack local judicial
 CONCLUSION 185

capacity, to work either as mentors and trainers or as actual judges and

prosecutors, have merit. But even in the absence of such a standby net-
work of jurists, which may be difficult to create, the book highlights that
unless international jurists are involved early on in the reform process,
various legal principles and judicial norms are likely to be violated, which
will in turn undermine the overall justice sector reform initiatives.
The study argued further that the upholding of international stand-
ards of justice is more important than the pursuit of prosecutions. While
Suzannah Linton presents a similar argument in her work, she does not
offer any suggestions about what approach international administrators
can adopt to ensure that such standards are respected but also address
past atrocities. In this respect, since it became clear that burdening a newly
established judicial system with trials of war or other serious crimes cases
can be counterproductive, Alain Pellet’s proposal for the nationalization
of international tribunals may offer an interesting alternative to the cur-
rent hybrid court model, which has addressed serious crimes within na-
tional courts. However, his aversion to internationalized processes which
deal with anything but international crimes ignores the urgent need for
certain non-international crimes and criminals to be tried by internation-
al jurists and panels. Thus an international tribunal which also employs
national judges, and which can deal with both international and national
crimes, may be an improvement upon the current model.
The need for national crimes to be tried by international tribunals has
been recognized by the international community, as the Special Tribunal
for Lebanon (STL), launched on 1 March 2009, demonstrates. It was es-
tablished with the primary and narrow purpose of trying, under Leba-
nese criminal law, those suspected of involvement in the assassination of
the former Lebanese Prime Minister Rafiq Hariri on 14 February 2005.
It has a majority of international judges and an international prosecu-
tor, but also includes national judges, as was the case with the Special
Court for Sierra Leone. As such, the STL is a step in the direction of
Pellet’s idea of having national judges brought into international tribu-
nals, and also in the direction of trying non-international crimes through
international panels. However, the STL has only a very limited mandate,
and as such international criminal and humanitarian law does not apply.
The final result is that this tribunal is quite close to the Lockerbie trial,
which also had a rather limited mandate, was sanctioned by the Security
Council and took place (under Scottish law) in the Netherlands, also the
location of the STL.1 Especially the fact that the STL can only try cases
under Lebanese law shows that a key hurdle still needs to be overcome
in the attempt to create a nationalized international tribunal which can
try cases under national and international law, and which employs both
national and international judges and prosecutors.
186 UNITED NATIONS JUSTICE

If trials are chosen over amnesties or any other methods for address-
ing past atrocities, the book argues that a clear prosecution strategy is
crucial. While Suzannah Linton and Sylvia De Bertodano also argue for
the need of a clear prosecution strategy, their work and the literature on
the subject more broadly do not substantively cover the relative merits of
different prosecution strategies, and this is an area that is certainly open
to further investigation.
Finally, the study showed that while implementing a regular court
structure early on in a mission is not very problematic, it does not leave
the time needed for the design of an institutional structure which will be
appropriate for the particular circumstances and which can incorporate
traditional justice mechanisms; importantly, however, establishing a mech-
anism that can deal with detainees has to be prioritized over the UN’s
desire to establish a regular court structure. In this respect, Scott Carlson’s
recommendation for the use of emergency mobile courts in the short or
long term should be given serious consideration; and INTERFET’s ap-
proach with the establishment of the Detainee Management Unit in East
Timor may present an interesting model for future UN or other govern-
ance operations mandated with the responsibility for law and order.
In addition to the above-mentioned areas that warrant further inves-
tigation, there are a few more topics which were outside of the scope
of this work, as indicated in the Introduction, which remain unexplored
in the literature and require further study. One of these areas relates to
the question of the integration of customary law and traditional justice
mechanisms into a Western statutory legal system based on civil or com-
mon law. The lack of serious scholarly treatment of this subject presents a
gap in the literature which must be urgently filled, because the successful
integration of such customary laws and practices within a modern legal
system can arguably determine the outcome of any legal and judicial re-
form initiatives in a war-torn territory. The protracted violent conflicts in
Afghanistan and Somalia demonstrate clearly that when a statutory jus-
tice system collapses because of war, traditional justice mechanisms and
laws will resurface: in the case of Afghanistan authority reverted back
to traditional chiefs, who went on to apply various tribal and Islamic
legal customs in the territories under their control, and in Somalia war-
lords applied a host of different customary laws and practices.2 While the
rule-of-law reform failures in Afghanistan can in part be blamed on the
security challenges and the lack of central government control over the
territory, they are arguably also in no small part the result of the failures
to consider seriously and explore ways in which traditional justice mecha-
nisms can be integrated into the modern and statutory legal system which
the international community wished to help establish in the country. Thus
ignoring such customary laws and practices in a territory which has been
 CONCLUSION 187

ruled by them for several decades has been detrimental to the rule-of-law
reform efforts in Afghanistan, and may have a similar effect in other war-
torn societies.
A closely related subject for further study is the method by which
peacebuilders can contend with legal pluralism in a post-conflict context.
In the aftermath of decolonization, many newly independent govern-
ments decided to undertake various legal reforms aimed at integrating
customary and modern laws.3 Arguably, scholars can learn much about
the challenges of integrating customary and modern legal practices from
the post-colonial African experience of legal reform, for instance, where
a range of different approaches were tried. But while it is clear that this
post-colonial experience has the potential to hold many valuable lessons
for peacebuilders on the integration of customary and modern laws, and
also on how to contend with legal pluralism, no extensive study which
aims to explore ways in which these problems can be surmounted in a
peacebuilding context has been published to date.4
Boutros Boutros-Ghali’s administration wrote in 1995 that “The United
Nations is, for good reasons, reluctant to assume responsibility for main-
taining law and order, nor can it impose a new political structure or new
state institutions.”5 This reluctance is understandable: the United Na-
tions was inexperienced in the maintenance of law and order, and felt
that its place was not to impose structures and institutions on states.
However, the Security Council mandated the organization with the task
of governing several territories, and thereby also with the responsibil-
ity for the very tasks it was reluctant to carry out. The operational chal-
lenges of administering territories left the organization with little desire
for further ventures of a similar nature, and in Afghanistan it essentially
backed away from taking on a substantial role again, preferring a light-
footprint approach instead – rather than governing per se it essentially as-
sists a transitional administration. Similarly, the United Nations wishes to
back away from any substantial responsibilities in the realm of legal and
judicial reform, as the Secretary-General’s 2004 report on rule of law and
transitional justice in post-conflict territories also clearly shows,6 perhaps
because of its past failures and mistakes.
However, irrespective of whether or not the United Nations goes down
the path of governance in the future again, or if it acts predominantly in
a supporting role to a state in transition, it is important for the organiza-
tion as well as other entities involved in peacebuilding work to under-
stand and learn from the mistakes of the UN’s past approach to one of
the most challenging yet crucial areas of peacebuilding, namely legal and
judicial reform. Such lessons will not only affect how justice sector re-
form efforts are undertaken by future UN missions, but also how other
organizations or governments address these matters. As an example, the
188 UNITED NATIONS JUSTICE

UN’s formulation of the applicable law in Kosovo and East Timor served
to inspire the US choice of law for its occupation of Iraq: the Coalition
Provisional Authority’s Regulation No. 1 stated that the “laws in force in
Iraq as of April 16, 2003, shall continue to apply in Iraq, insofar as the
laws do not prevent the CPA from exercising its rights and fulfilling its
obligations, or conflict with the present or any other Regulation or Order
issued by the CPA”.7 This formulation went well beyond what is envis-
aged by Geneva Convention IV for the law that should apply in an occu-
pied territory;8 and when juxtaposed to either UNMIK’s or UNTAET’s
formulation of the applicable law in Kosovo or East Timor, respectively,
it becomes evident that the Coalition Provisional Authority’s choice of
law essentially grafted the UN’s approach on to the CPA’s administration
of Iraq.9
In the twenty-first century various national, international, supra-
national or non-governmental entities will continue to be involved in legal
and judicial reforms in war-torn territories. In Kosovo, the European
Union (EU) officially took over the rule-of-law reform efforts from
UNMIK in December 2008 through its EU Rule of Law Mission in
Kosovo (EULEX). What happened during the initial stages of the UN’s
reform efforts in terms of choice of law, incorporation of human rights
into the legal framework, creation of court structures, addressing past
atrocities, involvement of local actors in the reform process, etc., will
continue to inform the EU’s current legal and judicial reform strategy
and efforts. The international community will also continue to seek ways
to deliver justice for past atrocities. The establishment of the Interna-
tional Criminal Court, the Extraordinary Chambers in Cambodia, the
War Crimes Chamber in Bosnia and Herzegovina, the Special Court for
Sierra Leone and the Special Tribunal for Lebanon, and most recently
the ICC’s indictment of President Omar al-Bashir of Sudan for war
crimes and crimes against humanity, attest to this. The role the United
Nations will play in future justice sector reforms and transitional justice
is yet to be determined, but what is clear is that its approach thus far will
have a lasting impact on the efforts of other entities involved in legal and
judicial reform in war-torn societies.

Notes

1. International Center for Transitional Justice (2008: 38).

2. Mani (2002: 81).
3. Ibid., pp. 82–83.
4. It should be noted, though, that the US Institute of Peace is currently undertaking a
project on “The Role of Non-State Justice Systems in Fostering the Rule of Law in Post-
Conflict Societies” which may produce interesting results. Some institutions have begun
 CONCLUSION 189

to work on questions of customary justice systems and legal pluralism, and have done
recent noteworthy work in this area: DFID, IDEA, Max Planck, NRC, PRI, UNDP,
USAID, USIP and the World Bank.
5. UN General Assembly and Security Council (1995: para. 14).
6. See UN Security Council (2004).
7. See section 2 of Coalition Provisional Authority (2003).
8. Article 64 of the convention stipulates that the occupying power may deviate from the
domestic law, which must continue to apply, only if this law constitutes a threat to the
security of the occupier or prevents the application of the convention.
9. As indicated in Chapter 3, the wording of Section 3 on the “Applicable Law in Kosovo”
of UNMIK (1999c) reads: “The laws applicable in the territory of Kosovo prior to 24
March 1999 shall continue to apply in Kosovo insofar as they do not conflict with [in-
ternational human rights] standards . . . the fulfilment of the mandate given to UNMIK
under the United Nations Security Council Resolution 1244 (1999), or the present or any
other regulation issued by UNMIK.” On this point see Stahn (2008: 672).
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208
 TREATIES 209

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Index

“n” refers to notes.

ABA/CEELI. See American Bar AFSOUTH NATO. See Regional

Association’s Central and East Headquarters Allied Forces Southern
European Law Initiative (ABA/ Europe (AFSOUTH NATO)
CEELI) Agreement between the Republic of
Ad Hoc Court of Final Appeal [Kosovo], Indonesia and the Portuguese Republic
57–58, 61, 73, 204 on the Question of East Timor, 179n46,
ad hoc courts, 132 208
Ad Hoc Office of the Public Prosecutor Agreement on a Comprehensive Political
[Kosovo], 61, 204 Settlement of the Cambodia Conflict,
ad hoc tribunals, 132, 166–68, 171 13n17, 208
Advisory Judicial Commission [Kosovo], 61, Agreement on Provisional Arrangements
92n148 in Afghanistan Pending the
Afghanistan Reestablishment of Permanent
Agreement on Provisional Arrangements, Government Institutions, 14n32,
14n32 208
Bonn Agreement and 1964 constitution, al-Bashir, President Omar [Sudan], 188
5 Alves, Victor, 121–22, 124, 129
legal system, customary-statutory, 180n70 American Bar Association’s Central and
rule-of-law reform failures, 186–87 East European Law Initiative (ABA/
traditional justice mechanisms and laws, CEELI), 89n37
186 American Convention on Human Rights,
tribal and Islamic legal customs, 186 162
UN’s light-footprint approach, 9, 154, 156, amnesties
179n35, 187 ad hoc tribunals for Yugoslavia and
Africa, 27, 32n82 Rwanda, 168
African Charter on Human Rights and in East Timor, 133, 137, 142–43
Peoples’ Rights, 162, 179n63, 208 for Guatemala, 28

210
 INDEX 211

Gusmao, President Xanana, 168 Bosnia and Herzegovina 9, 14n47, 15, 22,
individual accountability vs., 26 51, 53, 61, 88n13
international crimes of genocide, crimes Bosnian court system, 21–22
against humanity, war crimes and other criminal justice advisory unit, 22
serious violations of international hybrid internationalized national panels,
humanitarian law, 28 167
by Latin American countries, 31n82 International Police Task Force, 22
for past human rights abuses, 26 Judicial System Assessment Program
Peruvian government, 180n81 (JSAP), 22
provisions by Latin American and legal and judicial reform, 21–22
African governments, 27 Office of the High Representative in
to Revolutionary United Front (RUF), Bosnia Herzegovina, 181n107
28 Peace Implementation Council in Bosnia,
Sierra Leone Truth and Reconciliation 14n47
Commission, 168 Security Council Resolution 1184, 21,
trials with clear prosecution strategy vs., 203
186 UN Mission in Bosnia and Herzegovina
truth and reconciliation processes, 12, 167 (UNMIBH), 21–22, 31n57, 203
Ugandan Amnesty Commission, 167 War Crimes Chamber in, 188
UN administrators consider options other Bosnian court system, 21
than prosecution, 174 Boutros Boutros-Ghali, UN Secretary-
UN’s stance on, 28, 169 General, 2, 187
Amnesty International Boutruche, Theo, 169–70, 181n91, 193
East Timor, 149n199, 150n238 Brahimi Report. See “Report of the Panel
executive detentions, 160 on United Nations Peace Operations”
human rights in post-conflict situations, (Brahimi Report)
160 Bush, President George W., 51, 75
Kosovo, 68, 72–73, 78, 92n143, 92n147,
93n170–71, 93n173, 93n176, 94n195 Cady, Jean-Christian, 65–66, 89n48, 90n79,
references, 48n16, 48n19, 48n21, 179n55, 91n116, 91n119, 91n121, 92n128,
190–91 92n131, 92n133, 191
amnesty laws, 27, 180n81 Cambodia. See also UN Transitional
Annan, Kofi Authority in Cambodia (UNTAC)
Under-Secretary-General for Agreement on a Comprehensive Political
Peacekeeping Operations, 20 Settlement of the Cambodia Conflict,
UN Secretary-General, 7, 14n33, 27–28, 13n17, 208
101–2, 145n51 Extraordinary Chambers, 103, 180n87,
188
Baldwin, Clive, 65, 88n20, 89n39, 89n42, human rights violations, 18
89n47, 89n55, 89n57, 90n64–65, 90n91, legal and judicial reform efforts,
90n95, 91n96, 91n98–99, 91n103, 15–19, 24, 46, 103, 152, 167, 170,
91n106, 91n108, 91n111–13, 91n124, 190
91n126, 94n218 Paris Peace Agreements, 17–18, 46
Basic Principles on the Role of Lawyers, State of Cambodia (SOC), 18
47n14, 208 Supreme National Authority, 3, 17
Beauvais, Joel, 143n19, 145n67, 145n81, Supreme National Council, 18
145n86, 146n104, 149n180, 149n212, Vietnamese criminal and criminal
153, 178n13, 178n15, 191 procedure codes, 5
Booth, Nicholas, 65–66, 89n48, 90n79, Cambodia Law on Criminal Procedure
91n116, 91n119, 91n121, 92n128, (SOC Law), 18
92n131, 92n133, 191 Cambodian People’s Party, 18
212 INDEX

Carlson, Scott, 159, 166, 171n116, 176, Christopher, Secretary of State Warren,
180n72, 186, 191–92 51
case studies: assessment criteria and civilian police (CIVPOL), 18
guidelines CIVPOL. See civilian police (CIVPOL)
about, 33–35 Coalition Provisional Authority (CPA)
case selection, 45–47 [Iraq]
case study guidelines, 43–45 Regulation No. 1, 188, 189n7, 192
Fuller’s principles of legality, 35–37 Cockayne, James, 169, 192–93
human rights principles, 10 basic, 40–41 Cohen, David, 169, 179n61, 180n74, 180n86,
human rights standards and principles, 181n115, 193
fundamental, 39–41 Colitti, Mariacarmen, 173, 181n104–7, 193
judicial disaster, 10 routes to, 37–38 COMKFOR. See Commander of KFOR
judicial norms, Fuller’s principle of, 37–39 (COMKFOR)
legal system, criteria for assessing Commander of KFOR (COMKFOR),
sustainability of a, 35–42 92n147
legal system in local community, comments, concluding
acceptability of, 41–42 UN’s approach to legal and judicial
legal system viability and security-related reform, 182–88
implications, 42 UNTAET, 83–87, 136–43
methodology, 44–45 Condorelli, Luigi, 169–70, 181n91, 193
terminology, 43–44 Congo, 13n1, 46, 61
Cassesse, Antonio, 169, 171 Convention against Torture and Degrading
Castanon, Fernando, 60 Punishment, 31n75
Central Europe, 26 Convention on the Prevention and
Cerone, John, 65, 88n20, 89n39, 89n42, Punishment of the Crime of Genocide,
89n47, 89n55, 89n57, 90n64–65, 90n91, 91n110, 209
90n95, 91n96, 91n98–99, 91n103, Convention Relative to the Protection of
91n106, 91n108, 91n111–13, 91n124, Civilian Persons in Time of War, 31n68,
91n126, 94n218 179n40, 209
Chesterman, Simon Convention (IV) Respecting the Laws
criminal prosecutions not always and Customs of War on Land and Its
regarded as a “categorical good,” 168 Annex: Regulations Concerning the
East Timor, 100, 107, 144n35, 144n38, Laws and Customs of War on Land,
145n67–68, 145n70, 145n72, 145n75, 31n67, 208
145n79, 145n82, 147n128, 149n183, Convention against Racial Discrimination,
150n236 31n75
generic legal codes, foreign-conceived, CPA. See Coalition Provisional Authority
156–57 (CPA) [Iraq]
international jurists, standby network of, Cristiani, President, 17, 29n13
176–77, 184
judicial reform and power, 176 De Bertodano, Sylvia, 145n88, 146n94,
Kosovo, 86–87, 90n69–71, 90n75, 92n129, 146n110, 146n112, 146n114–16,
92n139–40, 92n143–92n144, 93n189, 147n138, 149n184, 150n230, 180n73,
94n219, 94n221 186, 193
martial law and implementation of a Democratic Republic of Timor-Leste. See
basic legal framework, 158–59, 184 East Timor
references, 179n36, 179n57, 180n76, Detainee Management Unit (DMU) [East
180n80, 181n111–14, 181n117, 181n120, Timor], 89n38, 128, 150n220, 157–59,
192 165–66, 186, 196, 200
UN’s approach in Afghanistan, 179n35 Detainee Ordinance [INTERFET], 157, 184
You, the People, 175 dispute resolution mechanisms, 39, 42, 164
 INDEX 213

DMU. See Detainee Management Unit European Convention for the Protection
(DMU) of Human Rights and Fundamental
DPKO. See UN Department of Freedoms (ECHR), 47n13, 70, 72,
Peacekeeping Operations (DPKO) 91n97, 162, 209
Articles 5(3)–(4), 72
East Timor. See also International Force European Court of Human Rights, 64
for East Timor (INTERFET); UN European human rights instruments, 65
Mission in East Timor (UNAMET); European model of the investigating judge,
UN Transitional Administration in East 150n216
Timor (UNTAET) European Union (EU)
Agreement between the Republic of in East Timor, 98
Indonesia and the Portuguese Republic in Kosovo, 53, 188
on the Question of East Timor, 179n46, legal and judicial reform strategy, 188
208 EU Rule of Law Mission in Kosovo
European Union (EU), 98 (EULEX), 188
Forcas Armadas de Libertacao Nacional Evans, Gareth, 19, 30n33–34, 31n60,
de Timor Leste (National Armed 178n2–3, 194
Forces for the Liberation of East off-the-shelf or generic criminal code and
Timor) (FALINTIL), 121–22, 124, criminal procedure code, 23, 152
129 Extraordinary Chambers [Cambodia], 103,
Habibie, President B. J., 96–97 180n87
Human Rights Watch, 147n137, 150n238
Indonesia’s occupation, 96, 100, 104, 157 Fairlie, Megan, 14n42, 154, 178n14–15, 194
International Criminal Court (ICC), 167 FALINTIL. See Forcas Armadas de
international criminal law, 167 Libertacao Nacional de Timor Leste
international human rights instruments, (National Armed Forces for the
109, 126 Liberation of East Timor) (FALINTIL)
international human rights standards, Federal Republic of Yugoslavia (FRY)
100–101, 124–25, 127, 138, 144n37 agreement on Serbia’s withdrawal from
international judges and prosecutors Kosovo, 52
(IJPs), 102–3, 105, 112–13, 115, 118, Code of Criminal Procedure, 73
120–21, 137, 141 constitution and international law as part
Judicial System Monitoring Programme of the state’s legal order, 64–65
(JSMP), 116, 145n89, 146n93, 146n97, Criminal Code of, 62, 66, 152
146n108, 147m135–36, 147n131–33, criminal procedure, federal law of, 63
147n141–42, 147n145–47, 147n149, criminal procedure code, 66
147n151–54, 148n156–63, 148n171, Kosovo Criminal Code, 62, 66, 83
148n173–77, 149n181, 149n194, Kosovo’s autonomy within, 52
150n227, 150n234 Kosovo’s legal code, gaps in, 76, 83
law concordance with prior legal codes, laws from Serbia, 54, 152
99–100 laws of Montenegro, 54
Special Representative of the Secretary- legal and political fall-out from adopting
General (SRSG), 98–99 FRY’s laws, 76
ECHR. See European Convention on NATO’s bombardments in, 54
Human Rights (ECHR) OSCE lawyers and “too many laws,” 70
El Salvador, 15–17, 26, 32n82. See also UN peace terms offered by United States, 52
Observer Mission in El Salvador prosecution of the five leaders of, 58
Emergency Mobile Courts, 166, 186 Russia and law in force in Kosovo, 55
EU. See European Union (EU) Security Council Resolution 1244, 52–54,
EULEX. See EU Rule of Law Mission in 88n22, 88n24
Kosovo (EULEX) Serbian Criminal Code, 66, 83
214 INDEX

Federal Republic of Yugoslavia (FRY) Article 42, 180n67

(cont.) Article 42(2), 179n48
Serbian military targets inside, 52 Article 64, 24, 31n68, 31n74
sovereignty and territorial integrity of, Articles 41–43, 68 and 78, 162
88n24 genocide
territorial boundaries unchanged, 55 “Convention on the Prevention
five elements in practice and Punishment of the Crime of
UNMIK, 54–62 Genocide,” 91n110, 209
UNTAET, 99–106 and East Timor, 102, 107
Forcas Armadas de Libertacao Nacional de and Kosovo, 59, 65, 80, 90–91n95
Timor Leste (National Armed Forces in Rwanda, 27, 195
for the Liberation of East Timor) Second World War, post, 167
(FALINTIL) Sierra Leone amnesty provisions for, 28
Alves, Victor, 121–22, 124, 129 Germany (post-war), 6, 24, 26
Force Detention Centre Orders, 157 Guatemala, 26–28, 32n82
Forces Armées Rwandaises, 21 Gusmao, President Xanana, 112, 125, 168
FRY. See Federal Republic of Yugoslavia
(FRY) Haekkerup, Hans, 68
Fuller, Lon Hague Regulations
human rights standards and principles, Article 43 of, 24, 208
fundamental, 39–41, 45 Hague tribunal, 60, 205
judicial norms, basic, 37–39, 45 Haiti, 15, 20–21, 32n82
The Morality of Law, 35–37, 44–45, 47n3, Howe, SRSG Admiral, 20
47n5–12, 75, 194 HRFOR. See UN Human Rights Field
principles of legality, 35–37, 41, 43, 45 Operation in Rwanda (HRFOR)
principles of legality and UNMIK, 69–77, human rights abuses
183 grant amnesties for, 26
principles of legality and UNTAET, Guantanamo Bay and, 161
120–30, 136–37, 183 investigating and documenting, 16
UN’s approach vs., 44–45 human rights catalogue
fundamental human rights standards and UN legal framework and, 6
principles UNMIK, completeness of, 55, 76, 84, 86
Fuller, Lon, 39–41, 45 UNMIK, full vs. limited, 55, 84, 86
Indonesian legal code, 152 UNTAET, completeness of, 100–101,
in Kosovo, 81 128–29, 138, 142
legal framework of UN, 25 UNTAET, full vs. limited, 139, 142
legal system sustainability and, 35 human rights principles
case studies, 40–41
Ganzglass, Martin, 20, 30n38–46, 194 ten (10) principles, Fuller’s, 43–45
GC IV. See Geneva Convention IV (GC UNMIK, 81, 84
IV) UNTAET, 81, 134
Geneva Convention(s) Human Rights Watch
on Genocide, 31n75, 65 East Timor, 147n137, 150n238
on the Laws of Armed Conflict, 31n75 executive detentions, 160
against Racial Discrimination, 31n75 Kosovo, 68, 92n136, 92n143
against Torture and Degrading references, 30n27, 68, 179n56, 195
Punishment, 31n75
Geneva Convention IV (GC IV) IAC. See Interim Administrative Council
about, 24, 26, 31n68, 31n74–31n75, (IAC) [Kosovo]
157–58, 162, 165, 179n44, 179n48, ICC. See International Criminal Court
180n67, 188, 209 (ICC)
 INDEX 215

ICCPR. See International Covenant on international criminal law

Civil and Political Rights (ICCPR) community of courts, 150n229
ICRC. See International Committee of the hybrid internationalized national panels
Red Cross (ICRC) in Kosovo, East Timor and Bosnia,
ICTR. See International Criminal Tribunal 167
for Rwanda (ICTR) in Kosovo, 64–65
ICTY. See International Criminal Tribunal special panels as part of community of
for the Former Yugoslavia (ICTY) internationalized courts and tribunals,
IJPs. See international judges and 132
prosecutors (IJPs) in Yugoslavia, 90n95
INTERFET. See International Force for International Criminal Tribunal for Rwanda
East Timor (INTERFET) (ICTR)
Interim Administrative Council (IAC) ad hoc tribunal, 166–67, 171
[Kosovo], 53 Judicial System Monitoring Programme,
International Committee of the Red Cross 149n194
(ICRC), 157, 202, 208–9 justice mechanisms, expensive, 117
International Covenant on Civil and mechanisms of, expensive, 169
Political Rights (ICCPR), 91n97, prosecution of perpetrators of genocide,
144n39, 209 war crimes and crimes against
Article 4.1, 149n206, 180n65 humanity, 27, 101, 167 special panels
Article 4.1, Part II of, 93n190, 162 for guidance with jurisprudence, 121,
Article 4(2) of, 93n191 132
Article 6(1) of, 48n24 UN’s desire to address such atrocities
Article 9, 77, 146n107 promptly, 101
Article 9(3) of, 48n18 International Criminal Tribunal for the
Article 14(1), 47n13 Former Yugoslavia (ICTY)
Article 14(1) of, 48n17 ad hoc tribunal, 171
Article 14(3)(c) of, 48n18 Annan, UN Secretary-General Kofi, 27,
Article 14(3)(f) of, 48n21 32n88
Article 14(5), 48n15 Cassese, Antonio, 180n87
Articles 9(3)–(4) of, 72–73 justice mechanisms, expensive, 117, 169
Articles 9 and 14 of, 124, 129, 141, 162 Kosovo War and Ethnic Crimes Court
derogation from international standards (KWECC), 59–60, 80, 89n47, 145n57,
and deprivation of liberty of detainees, 171–73, 181n103
124, 142 Office of the High Representative in
executive detention orders for foreign Bosnia Herzegovina, 181n107
nationals by George W. Bush, 74 Ponte, Carla Del (chief prosecutor), 58,
in Kosovo, 74–75 195
Regulation 1999/1, 124–25 prosecution of past atrocities and war
Regulation 1999/24 and UNMIK, 63, crimes, 27, 58, 167
77 UN’s Advisory Committee on
United Nations and, 77 Administrative and Budgetary
violations of the principle of congruence, Questions, 60
129 UN’s desire to address such atrocities
International Criminal Court (ICC), 188 promptly, 101
hybrid internationalized national panels UN’s rule-of-law reform efforts,
in Kosovo, East Timor and Bosnia, undermined, 167
167 International Force for East Timor
Preparatory Commission for, 121 (INTERFET). See also UN
Rome Statute for, 27, 65, 109, 115, 170, Transitional Administration in East
173, 181n106 Timor (UNTAET)
216 INDEX

International Force for East Timor Carlson, Scott, 176

(INTERFET) (cont.) Chesterman, Simon, 176
Australian-led security forces, 94n223, East Timor, 102–3, 105, 112–13, 115, 118,
97, 165 120–21, 137, 141
derogation from key rights, 162 Kosovo, 57, 59–61, 66–68, 73–74, 78–79,
detained prisoners, 104 84, 87, 89n59, 90n62, 172–73
Detainee Management Unit (DMU), Special Court for Sierra Leone, 185
89n38, 128, 157–58, 165–66, 186, 196, Special Tribunal for Lebanon (STL), 185
200 Strohmeyer, Hansjoerg, 176–77
Detainee Ordinance, 157, 184 International Police Task Force [Bosnia],
detainees had legal representation 22
and regular detention reviews, 157, international territorial administration,
165 8–10, 14n47, 45, 202, 207
detainees handed over to UNTAET were international tribunal, nationalized, 172
not brought to trial, 139, 158 Irish Centre for Human Rights, 154,
emergency legal code, 141 178n17
emergency legal regime based on
Indonesian laws, 127–28, 134–35, 141, JAC/PJA. See Joint Advisory Council on
157–58 Provisional Judicial Appointments
GC IV regulation not followed, 165, (JAC/PJA)
179n44 Japan (post-war), 6, 24, 31n66, 125–27
goal of re-establishing peace and security, JIAS. See Joint Interim Administrative
158 Structure (JIAS) [Kosovo]
institutional and procedural framework Joint Advisory Council on Provisional
for law and order, 165 Judicial Appointments (JAC/PJA)
Judicial System Monitoring Programme, [Kosovo], 61, 204
149n194 Joint Group for the Investigation of
leaflets to locate qualified lawyers, 105 Politically Motivated Illegal Armed
legal regime, 128 Groups [El Salvador], 17
martial law and implementation of basic Joint Interim Administrative Structure
legal framework, 158, 184 (JIAS) [Kosovo], 53, 204
prisoners detained while awaiting trial, JSAP. See Judicial System Assessment
104, 157 Program (JSAP) [Bosnia]
search for jurists, 105 JSMP. See Judicial System Monitoring
special panels as a source of guidance for Programme (JSMP)
jurisprudence, 121, 132 judicial norms, basic
UNTAET’s definition of applicable law, in East Timor, 131–34
153 Fuller’s principle of, 37–39, 45
international human rights UNTAET, 77–81, 131–33
instruments, 9, 25, 90n92, 109, 126 Judicial System Assessment Program
law, 64–65, 67, 71, 73, 93n163 (JSAP) [Bosnia], 22
regime, 25 Judicial System Monitoring Programme
international human rights standards (JSMP)
about, 25, 159, 161, 164, 166, 189n9 “appearing to prosecute atrocities
East Timor, 100–101, 124–25, 127, 138, was more important than actually
144n37 prosecuting atrocities,” 168, 179n58,
Kosovo, 64, 66–67, 76, 88n22, 90n92 179n61, 180n68
internationalized criminal courts, 167 documents, reference, 196
internationalized national panels, hybrid, East Timor, 116, 145n89, 146n93, 146n97,
167, 173–74 146n108, 147m135–36, 147n131–33,
international judges and prosecutors (IJPs), 147n141–42, 147n145–47, 147n149,
8 147n151–54, 148n156–63, 148n171,
 INDEX 217

148n173–77, 149n181, 149n194, Kosovo Criminal Code, 62

150n227, 150n234, 160 Kosovo War and Ethnic Crimes Court
(KWECC), 59–60, 80, 89n47, 145n57,
Katzenstein, Suzanne, 14n38, 143n9, 143n11, 171–73, 181n103
143n15, 143n17–18, 145n57, 145n80, law concordance with prior legal codes,
146n106, 147n119–21, 147n125–27, 54–55
147n130, 147n134, 147n139, 147n144, lawyers complained of too many laws, 70
147n147–50, 148n172, 148n177, Legal System Monitoring Section
148n179, 148n193, 149n203, (LSMS) [OSCE], 57, 91n103
150n224–25, 150n227, 169, 180n75, Milošević, Slobodan, 5, 51, 56, 58, 62–63,
180n82–83, 180n85, 196 88n3
KCT. See Kosovo Transitional Council (KCT) NATO air-strikes against Serbian military
KFOR. See Kosovo Force (KFOR) targets, 52, 54, 62, 99
KLA. See Kosovo Liberation Army (KLA) North Atlantic Treaty Organization
Kosovo. See also Federal Republic of (NATO), 51–52, 55–56, 76
Yugoslavia (FRY); Organisation for Ombudsperson Institution, 68, 74, 79,
Security and Co-operation in Europe 92n143, 93n175, 93n177, 93n179,
(OSCE); UN Interim Administration 93n181, 160, 179n54, 199
Mission in Kosovo (UNMIK) Operation Allied Force, 52
Advisory Judicial Commission, 61, 92n148 OSCE report on the criminal justice
Amnesty International, 68, 72–73, 78, system, 70–71
92n143, 92n147, 93n170–71, 93n173, peace terms offered by U.S., 52
93n176, 94n195 Provisional Institutions of Self-
autonomy within Federal Republic of Government (PISG), 53
Yugoslavia (FRY), 52 “Report of the Panel on United Nations
clarity in laws, lack of, 71 Peace Operations” (Brahimi Report),
Dayton Peace Conference, 51 76–77, 93n186–93n187
detainees’ rights to liberty and to a fair Rule of Law Mission in Kosovo
trial, violation of, 160 (EULEX), 188
displacement of 30,000 Albanians, 52 Security Council Resolution 1244, 52–54,
European Union (EU), 53, 188 88n22, 88n24
Federal Republic of Yugoslavia Criminal Serbia’s campaign of discrimination and
Code, 62 repression, 62
genocide, 59, 65, 80, 90–91n95 Serb violence against ethnic Albanian
Human Rights Watch, 68, 92n136, 92n143 civilians, 51
Interim Administrative Council (IAC), 53 Socialist Federal Republic of Yugoslavia
International Covenant on Civil and Criminal Code, 62
Political Rights (ICCPR), 74–75 Special Representative of the Secretary-
International Criminal Court (ICC), 167 General (SRSG), 52–54, 56, 61–62,
international criminal law, 64–65, 167 65–69, 73–74, 78–79, 84, 88n11–88n12,
international human rights law, 64–65, 67, 89n45, 92n136, 92n149, 93n176, 98, 163
71, 73, 93n163 Kosovo Democratic League, 51
international human rights standards, 64, Kosovo Force (KFOR), 52, 56, 66–68, 77, 79,
66–67, 76, 88n22, 90n92 88n8, 92n147, 98
international judges and prosecutors Kosovo Liberation Army (KLA), 52, 68,
(IJPs), 57, 59–61, 66–68, 73–74, 78–79, 88n5
84, 87, 89n59, 90n62, 172–73 Kosovo Mission [OSCE], 88n27, 89n29–30,
Joint Advisory Council on Provisional 89n32–33, 90n79–81, 91n100–102,
Judicial Appointments (JAC/PJA), 61, 92n143, 92n155, 92n157, 93n158–59,
204 93n163, 93n165, 93n168–69, 94n195,
Joint Interim Administrative Structure 94n197–202, 94n211–12, 94n216,
(JIAS), 53, 204 179n53, 199–200
218 INDEX

Kosovo Transitional Council (KTC), 53, 98 Linton, Suzannah

Kosovo War and Ethnic Crimes Court Alves’s detention was unlawful, 122, 129
(KWECC), 59–60, 80, 89n47, 145n57, hybrid model justice system might
171–73, 181n103 encourage the international community
Kouchner, Bernard, 68 to wrongly equate prosecutions with
KWECC. See Kosovo War and Ethnic actual justice, 107–8, 180n75, 180n83–84
Crimes Court (KWECC) Indonesian law, controversy over
applying, 107
Latin America, 27, 30n18, 31n82 international standards of justice vs.
law concordance with prior legal codes pursuit of prosecutions, 185–86
United Nations legal and judicial reform, references, 143n16, 144n40, 145n56,
23–25 145n62, 145n83, 145n85, 146n99–101,
UNMIK, 54–55 146n105, 146n107–8, 148n160, 149n181,
UNTAET, 99–100 149n194, 149n197–99, 149n207,
law of belligerent occupation, 26 149n210, 150n214, 150n216, 150n222,
legal and judicial reform 150n227, 150n240–41, 197
academics’ and practitioners’ responses, Rome Statute of the International
analysis and discussion, 152–63, 165–78 Criminal Court, general principles of
in Bosnia and Herzegovina, 21–22 law contained in the proposed, 109
Cambodia, 17–19, 24, 46, 103, 152, 167, Special Court for Sierra Leone, 181n110
170, 190 Special Panels and legal regime, 110
in Cambodia, 17–19 Lord’s Resistance Army (LRA), 167
in El Salvador, 16–17 LRA. See Lord’s Resistance Army (LRA)
European Union (EU), 188 LSMS. See Legal System Monitoring
five elements of UN’s approach to, 33–34 Section (LSMS)
in Haiti, 20–21
human rights in post-conflict legal Mani, Rama, 43, 48n34–36, 93n183,
context, 160–63 94n219–20, 188n2–3, 197
institutional structure, establishing an, MacArthur, General Douglas, 24
163–66 Mexico Agreement, 16, 29n8, 209
issues raised, 151–52, 160, 163–64, 166–67, MICIVIH. See UN/OAS International
175 Civilian Mission in Haiti (MICIVIH)
legal system, criteria for assessing, 34–35 Military Technical Agreement between the
legal vacuum, filling the, 151–59 International Security Force (‘KFOR’)
local actors in legal and judicial reform and the Governments of the Federal
process, 175–78 Republic of Yugoslavia and the
in Namibia, 16 Republic of Serbia, 88n8, 209
past atrocities and serious crime, Milošević, Slobodan, 5, 51, 56, 58, 62–63,
addressing, 166–75 88n3
“Report of the Panel on United Nations Morality of Law, The (Fuller), 35, 44–45,
Peace Operations” (Brahimi Report), 47n3, 47n5–12, 75, 194
154, 174, 178n6–9, 178n21
in Rwanda, 21 Namibia, 7, 15–16, 19, 46
in Somalia, 19–20 National Consultative Council (NCC) [East
United Nations, 15–22 Timor], 98, 143n25, 206
UNMIK, 62–69, 83 NATO. See North Atlantic Treaty
UNTAET, 62–69, 106–19, 136–43 Organization (NATO)
“Legal Justice: Order or the Rule of Law?” NCC. See National Consultative Council
(Mani), 43 (NCC) [East Timor]
Legal System Monitoring Section (LSMS) NGO. See non-governmental organization
[OSCE], 57, 70, 91n103 (NGO)
 INDEX 219

non-governmental organization (NGO) Kosovo, violation of detainees’ rights to

critical of UN’s failures to uphold human liberty and to a fair trial in, 160
rights standards in missions, 160 Kosovo’s Legal System Monitoring
defenders, sponsorship of international, Section, 57, 91n103
113–14, 131 Mission in Kosovo, 88n27, 89n29–30,
funding declined due to domestic 89n32–33, 90n79–81, 91n100–102,
political considerations, 133 92n143, 92n155, 92n157, 93n158–59,
Judicial System Monitoring Programme, 93n163, 93n165, 93n168–69, 94n195,
116, 168 94n197–202, 94n211–12, 94n216,
No Peace Without Justice, 32n84, 114 179n53, 199–200
resources and funding, lack of, 139 official translations of regulations, poor
North Atlantic Treaty Organization quality, 71
(NATO) Ombudsperson Institution in Kosovo, 68,
AFSOUTH NATO Regional 160, 179n53
Headquarters Allied Forces Southern Regulation 1999/26 deemed to be
Europe, 88n6, 190 unlawful, 72
air-strikes against Serbian military SRSG and, 98
targets, 52, 54, 62, 99 Organization of American States (OAS),
Kosovo, intervention in, 51–52, 55–56, 76 20
KWECC’s jurisdictional, concern over, 60 OSCE. See Organisation for Security and
Nuremberg war crimes trials, 26–27, 167 Co-operation in Europe (OSCE)

OAS. See Organization of American States Paris Peace Agreements [Cambodia], 17–18,
(OAS) 46
OCHA. See UN Office for the Peace Agreement between the Government
Coordination of Humanitarian Affairs of the Republic of Sierra Leone and
(OCHA) the Revolutionary United Front
OHCHR. See UN Office of the High (RUF/SL), 209
Commissioner for Human Rights peacebuilders, 139–40
(OHCHR) Pellet, Alain, 170–73, 180n89, 181n92–102,
Ombudsperson Institution in Kosovo, 68, 185, 200
74, 79, 92n143, 93n175, 93n177, 93n179, PISG. See Provisional Institutions of Self-
93n181, 160, 179n54, 199 Government (PISG) [Kosovo]
Onega, Peter, 167, 180n77 Plunkett, Mark, 14n30–31, 30n28, 30n38,
ONUC. See UN Operation in the Congo 31n59–60, 200
(ONUC) off-the-shelf or generic criminal code and
ONUSAL. See UN Observer Mission in El criminal procedure code, 13n19, 23,
Salvador (ONUSAL) 30n24–26, 152, 178n4–5
Organisation for Security and Co-operation Primer for Justice Components in
in Europe (OSCE), 14n48, 53 Multidimensional Peace Operations
criminal justice system in Kosovo, first (Carlson), 159, 202
report on the, 70–71 principles of legality
international judges’ influence over cases case study guidelines, 35–37, 41, 43, 45
was restricted, 78 Fuller, Lon, 35–37, 41, 43, 45
international treaties applied to Kosovo legal system, sustainability of, 35
difficult to apply, 64 legal system in local community, 41
Kosovo, lack of clarity in laws of, 71 UNMIK, 69–77, 183
Kosovo, lawyers complained of too many UNTAET, 120–30, 136–37, 183
laws in, 70 Provisional Institutions of Self-Government
Kosovo, report on the criminal justice (PISG) [Kosovo], 53
system in, 70–71 Punjab Tribal Council, 164
220 INDEX

Regional Headquarters Allied Forces Special Court for Sierra Leone, 181n110,
Southern Europe (AFSOUTH NATO), 185, 188, 192
88n6, 190 Special Representative of the Secretary-
“Report of the Panel on United Nations General (SRSG)
Peace Operations” (Brahimi Report), Ad Hoc Court of Final Appeal [Kosovo],
23, 31n62, 31n64, 203 57–58, 61, 73, 204
Kosovo, 76–77, 93n186–93n187 Ad Hoc Office of the Public Prosecutor
legal and judicial reform reconsidered, [Kosovo], 61, 204
154, 174, 178n6–9, 178n21 Advisory Judicial Commission [Kosovo],
transitional model legal codes, 154, 61–62, 92n148
178n18 Amnesty International and practice of
UN Security Council, 13n22, 14n35, executive detentions, 93n176
93n186, 93n188, 178n6 Articles 10 and 11 authorize, 88n11
Revolutionary United Front (RUF) [Sierra Cady, Jean-Christian, 65–66
Leone], 28, 209 detention review mechanism, failure to
Rome Statute of the International Criminal establish, 74
Court, 27, 65, 109, 115, 170, 173, in East Timor, 98–99
181n106 executive authority with respect to
RUF. See Revolutionary United Front Kosovo, 53–54, 56, 61, 88n12, 89n45, 98
(RUF) [Sierra Leone] executive detention orders, 68, 74, 163
Rugova, Ibrahim, 51–52 executive detentions violated Fuller’s
Rwanda, 15, 21, 27, 131, 168. See also principle on need for congruence
International Criminal Tribunal for between rules, 73, 84
Rwanda (ICTR) extra-judicial detention orders for
UN Human Rights Field Operation in suspects, 73–74
Rwanda (HRFOR), 21, 30n50, 30n52, Howe, Admiral, 20
30n54, 195 IJPs, approved or denied petitions for,
Rwandese Patriotic Front, 21 69
international judges and prosecutors
SC. See UN Security Council (SC) appointed to Mitrovica District Court,
SCU. See Serious Crimes Unit (SCU) [East 66
Timor] in Kosovo, 52–54, 56, 61–62, 65–69, 73–74,
Serious Crimes Unit (SCU) [East Timor], 78–79, 84, 88n11–88n12, 89n45, 92n136,
111, 145n80 92n149, 93n176, 98, 163
Sierra Leone Truth and Reconciliation Kouchner, Bernard, 68
Commission, 168 Ombudsperson Institution and detention
SOC. See State of Cambodia (SOC) of several suspects, 68, 74
Somalia Regulation 1999/1, 74
Italian penal code, 5 Regulation 2000/64, 79
legal and judicial reform, 19–20 Regulation 2001/18, 74
Siad Barre’s government, 2 Security Council Resolution 814, 20
statutory justice system collapses during Security Council Resolution 1244, 52–54,
war, 186 74, 88n22, 88n24
Unified Task Force (UNITAF), 20 Security Council Resolution 1272, 99
UN legal and judicial reform, 15 Serb or international judges would hear
UN Operation in Somalia I & II cases of judicial bias, 67
(UNOSOM), 20, 203 Strohmeyer, Hansjoerg (legal adviser),
warlords apply customary laws and 31n69, 67, 78, 92n136–37
practices, 186 Technical Advisory Commission on
South Africa, 40, 168, 187 Judiciary and Prosecution Service, 59,
Southern Europe, 26 61
 INDEX 221

Special Tribunal for Lebanon (STL), mandate of, 98, 144n37, 150n240
180n90, 185, 188, 196 National Consultative Council (NCC),
SRSG. See Special Representative of the 98
Secretary-General (SRSG) panels of both East Timorese and
State of Cambodia (SOC), 18 international judges for trials of serious
STL. See Special Tribunal for Lebanon offences, 102
(STL) panels of judges to operate in district
Strohmeyer, Hansjoerg court in Dili, 102
“creation of an immediately applicable Regulation 2000/11, 101
legal framework,” 153 Regulation 2000/15, 102
East Timor, observations on, 103–7, 109 Resolution 2000/11 “On the Organization
interview with, 178n15 of Courts in East Timor,” 110
Kosovo, observations on, 67, 78 UN regulations or directives issued by,
laws in East Timor, application of, 24 100
laws in Kosovo, application of, 24, 55 Transitional Criminal Code, 154–55
legal adviser to the SRSG in Kosovo, Transitional Detention Act, 154
31n69, 92n136 Transitional Judicial Service Commission
“ ‘quick-start package’ for UN (TJSC) [East Timor], 105–6, 116,
administered territories,” 153 120–21, 149n190, 206
references, 31n71, 88n25, 90n63, 90n68, Transitional Law Enforcement Powers Act,
94n194, 144n33, 144n35, 145n63, 154
145n67, 145n69–71, 145n73–74, 145n76, transitional model legal codes [Brahimi
145n78, 145n84, 146n65, 146n98, Report], 154, 178n18
149n212, 150n216–17, 178n11–12, Treaty of Lisbon, 95
181n118, 202 tribal-level justice mechanism, 164, 186
SRSG legal adviser, 31n69, 67, 78,
92n136–37 UCK. See Ushtria Clirimtare E Kosoves
standby network of experienced and (UCK) [Kosovo Liberation Army]
qualified international jurists, 176–77, UDT. See Uniao Democratica Timorense
184–85 [Timorese Democratic Union] (UDT)
UNTAET’s principal legal adviser in Ugandan Amnesty Commission, 167
East Timor, 31n69, 150n216 UNAMET. See UN Mission in East Timor
Suharto, President, 96 (UNAMET)
Supreme National Council [Cambodia], UN Charter
18 Article 1(3) (human rights), 25
Article 55, 31n73
TA. See Transitional Administrator (TA) references, 31n72, 208
[East Timor] UN Department of Peacekeeping
TJSC. See Transitional Judicial Service Operations (DPKO), 14n44, 20, 159,
Commission (TJSC) [East Timor] 180n72, 202
Tokyo war crimes trials, 26–27, 167 UN Development Programme (UNDP), 11,
Transitional Administrator (TA) [East 14n48, 14n51, 114–15, 147n128, 189n4,
Timor]. See also UN Transitional 204
Administration in East Timor UNDP. See UN Development Programme
(UNTAET) (UNDP)
eight district courts and one Court of UNHCR. See UN High Commissioner for
Appeal, 101 Refugees (UNHCR)
eight judges and two prosecutors, UN High Commissioner for Refugees
appointed, 106 (UNHCR), 53, 98
jurists, appointed first, 110 UN Human Rights Committee, 27–28,
legal framework, transitional, 159 32n91, 203
222 INDEX

UN Human Rights Field Operation in judicial norms, compliance with basic,

Rwanda (HRFOR), 21, 30n50, 30n52, 77–81
30n54, 195 Kosovo War and Ethnic Crimes Court,
Uniao Democratica Timorense [Timorese 59, 80, 145n57, 171
Democratic Union] (UDT), 95–96 legal and judicial framework and its
Unified Task Force (UNITAF) [Somalia], acceptability within the community,
20 81–82
UN Interim Administration Mission in legal and judicial reform and its security-
Kosovo (UNMIK) related implications, 83
about, 52–54 legal and judicial reform developments,
Ad Hoc Court of Final Appeal, 57–58, 61, 62–69
73, 204 legal principles and judicial norms,
Ad Hoc Office of the Public Prosecutor, violations of, 81, 85
61, 204 legal regime, created obscure, 71–72
analysis and discussion, 69–83 local participation in judicial process
applicable law concordance with prior from mission’s beginning, 60–62
legal codes from mission’s beginning, Mitrovica, ethnic violence in, 66, 83
54–55 Mitrovica District Court, 56, 64, 66
background, 50–54 Office of the Prosecutor, 58
backlog of criminal cases, 79–80 Pristina District Court, 56–57, 60, 89n33
chief prosecutor, 58–59 Prizren District Court, 56, 62–63, 70
comments, concluding, 83–87 prosecutions for past atrocities from
Constitutional Framework for Provisional mission’s beginning, pursuit of, 58–60
Self-Government, 53, 65, 69, 71, 81, references, 203–4
93n163, 205 regular court system from mission’s
detainees’ habeas corpus right, violating beginning, reinstitution of, 56–58
the, 74, 77 Regulation 1999/1, 54–55, 62, 64, 72–74,
detention orders, executive, 75 91n96, 99
detention orders, extra-judicial, 74 Regulation 1999/2, 67, 72–73, 98, 204
detention period, pre-trial, 72–73, 77, Regulation 1999/24, 63–65, 71–72, 75–77,
79–80 90n95, 91n96, 204
ethnic bias among Albanian jurists, Regulation 1999/25, 63, 204
61 Regulation 1999/26, 72–73, 199, 204
five elements in practice, 54–62 Regulation 2000/6, 66–67, 205
FRY’s laws, legal and political fall-out Regulation 2000/34, 67, 205
from adopting, 76 Regulation 2000/64, 67, 79, 205
Fuller’s principles of legality, adherence Regulation 2001/18, 74, 199, 205
to, 69–77, 183 SC Resolution 1244, 52–55, 62, 68, 88n22,
human rights catalogue, completeness of, 88n24
55, 76, 84, 86 Secretary-General, 59, 63–65
human rights catalogue, full vs. limited, Technical Advisory Commission on
55, 84, 86 Judiciary and Prosecution Service, 59,
human rights principles, 81, 84 61
human rights principles incorporated as UN’s Advisory Committee on
part of legal framework, 81 Administrative and Budgetary
international judges and prosecutors, 61, Questions, 60
66 UN’s pursuit of war and ethnic crimes
international judges and prosecutors through regular courts, 85
(IJPs), 57, 59–61, 66–68, 73–74, 78–79, Zeqiri, Afram, 67–68, 190
84, 87, 89n59, 90n62, 172–73 UNITAF. See Unified Task Force
judicial bias, 68, 78–79, 82–84, 205 (UNITAF) [Somalia]
 INDEX 223

United Nations (UN) United States (US)

ad hoc courts, 132 Bush, President George W., 51, 75
ad hoc tribunals, 132, 166–68, 171 executive detention orders for foreign
amnesties, stance on, 28, 169 nationals by George W. Bush, 74
Congo mission, 46 extra-judicial security detentions in
Eastern Slavonia mission, 46 Guantanamo Bay, 161
generic criminal and criminal procedure human rights abuses during military
code, 77 occupation of Iraq, 161
governance operations, 46–47 Institute of Peace, 154, 178n17, 188n4,
human rights, Charter obligation on, 195, 197
25 peace terms offered Kosovo, 52
ideology of legitimacy, 25 Universal Declaration of Human Rights
International Commission of Inquiry on (UDHR), 31n75, 48n17, 91n97, 144n39,
East Timor, 101, 203 162, 179n62, 209
International Covenant on Civil and UNMIBH. See UN Mission in Bosnia and
Political Rights (ICCPR), 77 Herzegovina (UNMIBH)
international territorial administration, UNMIK. See UN Interim Administration
8–10, 14n47, 45, 202, 207 Mission in Kosovo (UNMIK)
Jerusalem governance mission, 46 UNMISET. See UN Mission of Support in
judicial process, involving local actors East Timor (UNMISET)
in, 29 UN Mission in Bosnia and Herzegovina
justice packages, pre-prepared, 3, 13n19, (UNMIBH), 21–22, 31n57, 203
152–53 UN Mission in East Timor (UNAMET). See
peacebuilding missions, 85–86 also UN Transitional Administration in
refusal to support its own prosecutors, East Timor (UNTAET)
112 Indonesian legal code and political crisis,
rule-of-law reform efforts, undermined, 151–52
167 Indonesian-sponsored campaign of
Transitional Criminal Code, 154–55 violence, 97
Transitional Detention Act, 154 international judges and prosecutors
Transitional Law Enforcement Powers (IJPs), 102–3, 105, 112–13, 115, 118,
Act, 154 120–21, 137, 141
Trieste governance mission, 46 judicial reconstruction and integrity of
war and ethnic crimes, pursuit of, 85 the judicial process, 175
United Nations legal and judicial reform preventive detention, short-term legal
applicable laws, applications of and practical provisions for, 157
previously, 23–25 staff evacuated during worst violence, 97
human rights standards within the legal Strohmeyer, Hansjoerg (legal adviser), 7
framework, implementing, 25 UN Mission of Support in East Timor
judicial reform process, local (UNMISET), 99, 146n116, 204–5
participation in, 28–29 UN/OAS International Civilian Mission
legal and judicial reform, assumptions in Haiti (MICIVIH), 13n26, 20–21,
about, 22–29 30n47–48, 198
legal and judicial reform efforts, early, UN Observer Mission in El Salvador
15–22 (ONUSAL), 16–17, 203
off-the-shelf or generic criminal code and Human Rights Division, 17
criminal procedure code, 13n19, 23, organized judicial training seminars, 17
30n24–26, 152, 178n4–5 Truth Commission, 17
past atrocities, prosecution of, 26–28 UN Office for the Coordination of
regular court structure, establishing, Humanitarian Affairs (OCHA), 31n69,
25–26 32n89, 32n94, 180n77–79, 198
224 INDEX

UN Office of the High Commissioner for Indonesia’s failure to cooperate with

Human Rights (OHCHR) arrest warrants, 146n115
about, 14n48–14n49, 199 justice sector reforms, priority to, 20
Brahimi Report and transitional model KFOR and guarantee that individuals
legal codes, 154, 178n18 have right against arbitrary arrests, 68
rule-of-law issues within the UN system, law and order, maintenance of, 187
10 light-footprint approach, 9, 14n46, 154,
UN Operation in Somalia I & II 156
(UNOSOM), 20, 203 Lockerbie trial, 185
UN Operation in the Congo (ONUC), mandates for the governance of
13n1, 46 territories, 182
UNOSOM. See UN Operation in Somalia I Office of the High Representative, 31n56
& II (UNOSOM) Peace Implementation Council in Bosnia,
UNPOL. See UN Police (UNPOL) 14n47
UN Police (UNPOL), 125–27 police in a peacekeeping operation,
UN’s Advisory Committee on deployment of, 4, 174
Administrative and Budgetary Portuguese laws, 108
Questions, 60 Resolution 814, 20
UN Secretariat, 23, 27–28 Resolution 1184, 21–22
UN Secretary-General Resolution 1244, 24, 52–55, 62, 68, 74,
Annan, Kofi, 7, 14n33, 27–28, 101–2, 88n22, 88n24, 189
145n51 Resolution 1272, 24, 97, 99, 102, 144n37
Boutros-Ghali, Boutros, 2, 187 resolutions reaffirming the right of self-
interim criminal code, to convene panel determination, 96
of experts to assess feasibility and successor to the Soviet seat on, 2
utility of, 153 transitional justice initiative, imposed,
peace operations and assisting 155
stakeholders with approaches to UN Secretary-General Kofi Annan’s
transitional justice, 155 comments to, 14n33
“Pre-packaged solutions are ill-advised,” UNTAET replaced with UNMISET, 99
155 UNTAC. See UN Transitional Authority in
“The Rule of Law and Transitional Cambodia (UNTAC)
Justice in Post-Conflict Societies,” UNTAES. See UN Transitional
154–56, 187, 204 Administration in Eastern Slavonia,
rule-of-law reform in conflict and Baranja and Western Sirmium
postconflict societies, 161 (UNTAES)
UNMIK, 59, 63–65 UNTAET. See UN Transitional
UN Security Council (SC) Administration in East Timor
about, 203–4 (UNTAET)
Article 10, 88n10 UNTAET civilian police, 158, 161
“Avoid the imposition of externally UNTAG. See UN Transitional Assistance
imposed models,” 155 Group (UNTAG) [Namibia]
Brahimi Report, 13n22, 14n35, 31n64, UNTEA. See UN Temporary Executive
93n186, 93n188, 178n6 Authority (UNTEA) [West Irian]
criminal justice experts, resisted UN Temporary Executive Authority
providing, 4 (UNTEA) [West Irian], 13n1, 46,
detention laws, 149n199 49n45
governance-type UN operation, 43 UN Transitional Administration in Eastern
habeas corpus, 29n10 Slavonia, Baranja and Western
Indonesian laws and mandate of UN Sirmium (UNTAES), 3, 13n13, 46,
mission, 100 49n52, 208
 INDEX 225

UN Transitional Administration in higher-ranked commanders, failure to

East Timor (UNTAET). See also prosecute, 130
International Force for East Horta, Foreign Minister Ramos, 113,
Timor (INTERFET); Transitional 194
Administrator (TA); UN Mission in human rights catalogue, completeness of,
East Timor (UNAMET); UN Mission 100–101, 128–29, 138, 142
of Support in East Timor (UNMISET) human rights catalogue, full vs. limited,
about, 97–99 139, 141–42
Agreement between the Republic of human rights principles incorporated as
Indonesia and the Portuguese Republic part of legal framework, 134
on the Question of East Timor, 179n46, hybrid court system, 103
208 indictment for General Wiranto, 112
agreements on prosecutions, UNTAET Indonesian Criminal Code, 110, 126
staff and informal, 123–24 Indonesian legal code, 5, 100–101, 108–9,
Alves, Victor, 121–22, 124, 129 127–29, 134–35, 138, 150n221, 151–52
Annan, Secretary-General Kofi, 101–4 Indonesian Penal Code and Criminal
applicable law concordance with prior Procedure Code, 107, 109, 126
legal codes, 99–100 Indonesian war criminals, 102, 112
backlog of cases, 114–15, 133, 137–39, 166 International Foundation for Election
clarity in the law, lack of, 100, 127 Systems, 113
comments, concluding, 136–43 interpretation services in court, 118–19
Court of Appeal, 101–2, 107–8, 110, investigating judge, 111, 119, 122, 126,
115–16, 122–23, 134–35, 145n87, 145n90, 128, 150n216
146n61, 146n91, 147n143, 147nn143, Jakarta show trials, 137
148n160, 193, 196 Joseph Leki case, 116–17, 149n194, 201
defenders, public, 108, 110, 113–15, 131, judicial norms, compliance with basic,
137, 146n115, 147n120 131–33
defenders, Timorese and international, Judicial System Monitoring Programme
114–15, 118, 131–32, 137 (JSMP), 116, 145n89, 146n93, 146n97,
Detainee Management Unit, 89n38, 128, 146n108, 147m135–36, 147n131–33,
150n220, 157, 165, 186, 196, 200 147n141–42, 147n145–47, 147n149,
detention, pre-trial, 111, 119, 122, 129, 147n151–54, 148n156–63, 148n171,
132, 138–39, 142 148n173–77, 149n181, 149n194,
Dili District Court, 102, 108, 134, 147n143 150n227, 150n234
Dos Santos case, 107–8 legal and judicial framework and its
East Timor conflict, 95–99 acceptability within the community,
East Timorese domestic law, 109, 126, 134–36
189n8 legal and judicial reform and its security-
East Timorese judges, 103, 105–6, 110, related implications, 136–43
120 legal and judicial reform developments,
European Union (EU), 98 106–19
fair trials, unable to guarantee, 133 local participation in judicial process
fair trial standards, international, 142 from mission’s beginning, 103–6
five elements in practice, 99–106 Los Palos case, 114–15, 117–18, 144n45,
Fuller’s principles of legality, adherence 196
to, 120–30 low-level perpetrators, random
Fuller’s principles of legality, violations prosecution of, 138
of, 136–37, 183 Ministry of Justice, 113, 115–16, 119,
gross atrocities perpetrated through 130–31, 133
hybrid courts, 140 National Consultative Council (NCC), 98,
Gusmao, President Xanana, 112, 125, 168 143n25, 206
226 INDEX

UN Transitional Administration in East Transitional Judicial Service Commission,

Timor (UNTAET) (cont.) 105–6, 110, 116, 120–21, 206
National Parliament vote on Indonesian translation of official court documents,
law, 108 118–19, 138
Office of the Deputy General Prosecutor UN Police (UNPOL), 125–27
for Serious Crimes, 103 UN’s refusal to support its own
Office of the Principal Legal Adviser, prosecutors, 112
131 UN Transitional Assistance Group
Portuguese penal code, 107–9, 134–36 (UNTAG) [Namibia], 16
principle of congruence, violation of, 139 UN Transitional Authority in Cambodia
prison population, escape of half the, 119, (UNTAC), 3, 30n20
136 detainees held in violation of their
prosecutions for past atrocities from habeas corpus rights, 19
mission’s beginning, pursuit of, 101–3 detention centre, first UN, 18
Public Defender’s Office, 112–13, 115 electoral administration, procedures and
regular court system from mission’s regulations, 19
beginning, reinstitution of, 101 factions’ activity monitoring, 46
Regulation 1999/1, 99–101, 108, 124–27, human rights component, 18–19
141, 203, 205 human rights violations, 17–19
Regulation 1999/2, 98, 206 judiciary, criminal law and criminal
Regulation 1999/4, 110, 127, 206 procedure, 18–19
Regulation 2000/11, 101–2, 110, 116, 118, laws, drafted and enacted own, 5
122–24, 126, 206 laws, hastily drafted and enacted, 23
Regulation 2000/14, 111, 122–25, 129, legal code, 18
206 mandate, 13n17, 17–18
Regulation 2000/15, 102, 109, 115, 120–21, special prosecutor, appointed own, 18
130, 135, 140, 206 US Agency for International Development
Regulation 2000/16, 103, 206 (USAID), 119
Regulation 2000/30, 116, 124, 140, 206 USAID. See US Agency for International
Regulation 2001/25, 124, 206 Development (USAID)
reprisal violence against former enemies, Ushtria Clirimtare E Kosoves (UCK), 88n5.
104, 128, 136, 150n219, 191 See also Kosovo Liberation Army
right to freedom of speech, violation of, (KLA)
125
SC Resolution 1272, 99, 102, 144n37, 203 War Crimes Chamber in Bosnia and
Serious Crimes Unit (SCU), 111, 145n80 Herzegovina, 188
transcripts, failing to provide written,
133, 138 Yugoslav Federal Criminal Code, 90–91n95