Justice under transitional administration: contours and critique of a paradigm φ.

• Author: Stahn, Carsten

1. INTRODUCTION II. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: THE CONTOURS OF A PARADIGM A. A Unique Rationale B. Unique Features 1. The Multplicity of Actors 2. Ambiguities in the Law 3. Unique Challenges III. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: A STOCKTAKING A. Evaluation and Critique of Some Approaches 1. Kosovo--A Learning Experience 2. East Timor--Some Lessons Learned 3. Afghanistan Faire et Laissez-faire 4. Iraq--One Step Forward, Three Steps Back B. Some Modest Proposals I. INTRODUCTION

   In a standard textbook on international criminal law, justice is usually theorized in three different categories: domestic legal justice, international criminal justice, as evidenced by the naissance of institutions such as the international criminal tribunals for the former Yugoslavia and Rwanda or the International Criminal Court, and hybrid criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as practiced in, for example, Sierra Leone or Cambodia. (1)

   This tripartite conceptualization of justice is, however, reductionist. Both the practice of the United Nations (U.N.) in international territorial administration (2) and international experiments in state-building, more generally, indicate that there is, in effect, a separate paradigm that has emerged within the practice of post-conflict reconstruction: justice under transitional administration. (3)

   This phenomenon is distinct from the broader category of transitional justice (4) that became popular in the wake of the transformations in Latin America and Eastern Europe in the 1980s and deals with the judicial treatment of regime transitions more generally. (5) The concept of justice under transitional administration is more limited in its scope of application. It encompasses scenarios of transitions in which international authorities exercise normative powers in the context of a process of judicial reconstruction, either exclusively or in conjunction with domestic authorities.

   This article seeks to focus on two aspects of this paradigm: on its contours and on some of its critiques. (6) The analysis starts with a study of the anatomy of the administration of justice under a transitional administration. This contribution argues that justice under a transitional administration differs in a number of ways from purely domestic or international forms of justice and mixed models of adjudication, namely by its rationale, its features, and its challenges.

   This analysis is followed by an assessment of how the challenge of the restoration of justice has been approached in different contexts of transition. The aim of this survey is to highlight the current flaws and deficiencies of contemporary practice and to add some brief suggestions to address some of the existing shortcomings.

2. JUSTICE UNDER TRANSITIONAL ADMINISTRATION: THE CONTOURS OF A PARADIGM

   The systematic engagement of international actors in the reconstruction of a domestic justice system in territories under transition, as such, is a relatively contemporary paradigm. The need to develop a targeted strategy to restore the rule of law in post-conflict societies became painfully obvious in the beginning of the 1990s when U.N. peacekeepers failed to accomplish their civilian mandate in Somalia under UNOSOM II, due to both an ambiguous and half-hearted international mandate and a lack of support from local actors. (7) Calls from the U.N. Secretariat for a more sustainable approach to peacemaking (8) led to a shift in conception in the late 1990s that is, inter alia, reflected in the establishment of transitional administrations by the U.N. in Kosovo, (9) East Timor, (10) Afghanistan, (11) and to some extent also in the multilateralization of the U.S. led occupation of Iraq by the Security Council. (12)

   One of the common features of these experiments is that international actors assumed active responsibilities in judicial reconstruction in order to fill domestic vacuums in the area of law enforcement and the rule of law. The model of engagement varied from case to case. The presence of the U.N. administrations in Kosovo and East Timor was based on a dirigiste model, vesting U.N. actors directly with the exercise of all of the classical powers of the state, including the administration of justice. (13) The U.N. missions concerning Afghanistan (UNAMA) and Iraq (UNAMI), in contrast, followed essentially a "light footprint" approach, (14) leaving the direct management of public affairs primarily in the hands of interim domestic institutions and the Coalition Provisional Authority in Iraq (CPA). (15) But all of these undertakings share one common characteristic--the direct involvement of international actors in the restoration of justice and the rule of law in post-conflict territories.

   1. A Unique Rationale

      To what extent does the rationale of justice under transitional administration differ from the objectives and goals of justice of established domestic or international justice systems? There are two main factors that make justice under transitional administration unique.

      The first aspect is the close connection between the restoration of justice and security in post-conflict situations. Justice under transitional administration is less a means of safeguarding the interests of individual victims than an instrument of restoring public order and safety more generally. It is part and parcel of a post-intervention strategy, designed to prevent revenge killings or "reverse ethnic cleansing" and to address the root causes of conflict through the re-establishment of the rule of law. This particular objective links justice under transitional administration more directly to a communitarian, rather than an individual or victim-centered, interest.

      Moreover, the establishment of justice in post-conflict societies is usually guided by utilitarian considerations. The ideas of reconstruction, justice, and reconciliation are often advertised as merits of sustainable peacemaking. But this is not entirely true. There is some hypocrisy in this argument. The establishment of justice and reconstruction is frequently a post hoc means of justifying liberal interventions (humanitarian interventions, democratic interventions, etc.). (16) The point is simple. If an intervening force justifies its operation with the objective of preventing further human rights violations or to restore democracy, but there is no functioning system to bring violators to justice, "then not only is the force's mandate to that extent unachievable, but its whole operation is likely to have diminished credibilty both locally and internationally." (17)

   2. Unique Features

      The particularities of justice under a transitional administration do not end here. International efforts to restore justice in post-conflict situations bear unique features because they are immediately linked to the post-conflict environment and because they involve the exercise of public authority over foreign people. This creates additional complications in two regards: in relation to the scope of actors involved in the administration of justice and in relation to the applicable law.

      1. The Multplicity of Actors

         In situations of conflict, a whole range of different actors are involved in the administration of justice. The military often plays a crucial role in the restoration of justice in the immediate aftermath of hostilities, because it is the only entity that has the de facto power to restore law and order. But military forces are ill-equipped to perform functions of justice. They may carry out executive functions such as detentions or tasks of law enforcement. Nevertheless, they lack the means to assume genuinely judicial functions or to conduct trials. This may lead to curious situations. In Somalia, for instance, Australian peacekeepers took it into their own hands to re-establish a local police force and community courts in areas they controlled, in order to restore basic mechanisms of justice. (18) In Kosovo, the Kosovo Force (KFOR) felt compelled to extend its detentions up to the time when the United Nations Mission in Kosovo (UNMIK) could take over civilian responsibilities. (19)

         The strong focus on military control in the early post-conflict phase may produce a number of unsatisfactory legal gaps in the area of the administration of justice. Military forces are usually exempted from the jurisdiction of the host state, and sometimes even from international jurisdiction. Moreover, there is some ambiguity to what extent military forces operating within the framework of peacekeeping operations are subject to the rules of the Fourth Geneva Convention, a surrogate framework of law. (20) The U.N. has systematically refrained from regarding itself as a non-belligerent, occupying power. (21) State practice is divided. While Australian peacekeepers considered themselves formally bound by the laws of the Convention in U.N. peace operations in Somalia (22) and East Timor, (23) other states like the United States refused to officially acknowledge the applicability of the Convention. (24)

      2. Ambiguities in the Law

         After the end of armed hostilities and a return to the path of peace, the situation does not necessarily improve fundamentally. Until the renaissance of international territorial administration in the mid- to late-1990s, the international community has generally been quite reluctant to complement military engagement by a sustainable civilian post-conflict presence. Furthermore, when international control takes over, it is often surrounded by the lack of an adequate framework for judicial reconstruction and doubts about the applicable law. (25)

         The Report of the Panel on United Nations Peace Operations (Brahimi Report) has tried to find a way out of this dilemma by suggesting the application of a standard criminal code in situations of emergency. (26) Similar "justice packages" have been proposed by the International...