Published online by Cambridge University Press: 30 March 2017
Within the span of only a few months in 1999, the United Nations was faced with one of the greatest challenges in its recent history: to serve as an interim government in Kosovo and East Timor.
In Kosovo, in response to massive attacks on the Kosovar Albanian population, including orchestrated and wide-scale “ethnic cleansing,” the North Atlantic Treaty Organization (NATO) conducted an eleven-week air campaign against Yugoslav and Serbian security forces and paramilitary groups. The campaign resulted in the agreement of the Federal Republic of Yugoslavia to withdraw all Yugoslav and Serbian security forces from the territory. On June 10,1999, one day after the suspension of NATO’s air strikes, the United Nations Security Council adopted Resolution 1244 (1999), establishing the United Nations Interim Administration in Kosovo (UNMIK).
* Hansjörg Strohmeyer is a judge in Dusseldorf, Germany, and a policy adviser in the United Nations Office for the Coordination of Humanitarian Affairs. From October 1999 to February 2000, he was the acting principal legal adviser to the United Nations Transitional Administration in East Timor and then served as deputy principal legal adviser to the mission until June 2000. From June to August 1999, he served as the legal adviser to the special representative of the Secretary-General in Kosovo. The author wishes to thank Fatemeh Ziai for her assistance in the preparation of this article. The views expressed in the article are entirely those of the author in his personal capacity and do not necessarily reflect the views of the United Nations.
1 The conflict between Serbian military and police forces and Kosovar Albanian forces had flared up in the course of 1998, leaving over 1,500 Kosovar Albanians dead and approximately 400,000 expelled from their homes. The deteriorating situation led the NATO Council to authorize activation orders for air strikes on October 13, 1998. On March 24, 1999, NATO actually began “Operation Allied Force,” following the refusal of the Federal Republic of Yugoslavia to sign the Rambouillet accords. The two-round negotiation of the accords in February and March 1999 had been facilitated by the contact group for the Balkans (France, Germany, Russia, Italy, the United Kingdom, and the United States) and was aimed at reinstating substantive autonomy and self-government in Kosovo. The representatives of the Kosovar Albanian community signed the accords.
2 SC Res. 1264 (Sept. 15, 1999). On August 30, 1999, some 98% of East Timorese voters had gone to the polls and decided, by a margin of 21.5% to 78.5%, to reject autonomy for East Timor, proposed by the Republic of Indonesia, and to begin, instead, a process of transition toward independence. Following Indonesia’s failure to control the security situation in East Timor, as guaranteed in the political agreements leading up to the popular consultation of August 30, 1999, the Security Council established INTERFET. See also Agreement on the Question of East Timor, May 5, 1999, Indon.-Port, Agreement Regarding Security Arrangements, May 5, 1999, UN-Indon.- Port., UN Doc. S/1999/513, Anns. I, III, respectively.
3 See SC Res. 1244, para. 11(a), (b), (i) (June 10, 1999), 38ILM 1451 (1999) (“[p]romoting the establishment ... of substantial autonomy and self-government in Kosovo”;” [p]erforming basic civilian administrative functions where and as long as required”; and “[m]aintaining civil law and order”); SC Res. 1272, para. 1 (Oct. 25, 1999), 39 ILM 240 (2000) (“establish . . . a United Nations Transitional Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice”); see also UNMIK Regulation 1999/1, §1.1 (July 25,1999) ( “All legislative and executive authority 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”); UNTAET Regulation 1999/1, §1.1 (Nov. 27, 1999) (“All legislative and executive authority with respect to East Timor, including the administration of the judiciary, is vested in UNTAET and is exercised by the Transitional Administrator”). All the regulations promulgated by UNMIK and UNTAET are available online at <http://www.un.org/peace/kosovo/pages/regulations> and <http://www.un.org/peace/etimor/untaetR/UntaetR.htm>.
4 The United Nations, which traditionally promotes international law, was actually mandated, both in Kosovo and in East Timor, to legislate and create new law in areas that normally fall within the competence of a national legislature. By promulgating UN regulations that have the status of laws and supersede any other law on the regulated matter at issue, the head of the UN mission, in effect, becomes the exclusive legislator of the administered territory. See SC Res. 1272, supra note 3, para. 6 (stating that “the Transitional Administrator . . . will. . . have the power to enact new laws and regulations and to amend, suspend or repeal existing ones”). As the experience in Cambodia has shown, many of these regulations remain in force even after the completion of the UN transitional administration, or serve as a blueprint for subsequent national legislation.
5 At the end of the Kosovo conflict, out of a population estimated at 1.7 million, almost half (800,000) had sought refuge abroad, mainly in neighboring Albania, the former Yugoslav Republic of Macedonia, and Montenegro. In addition, an estimated 500,000 people were internally displaced within Kosovo. See Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/779, para. 8 (July 12, 1999), <http://www.un.org/Docs/sc/reports/1999/sl999779.htm> [hereinafterSecretary-General’s Kosovo Report].
6 According to a preliminary survey of 141 villages by the United Nations High Commissioner for Refugees, 64% of homes were severely damaged or destroyed, and household waste and human remains had contaminated 40 % of the water resources. See Chronology UN Interim Administration in Kosovo (UNMIK), 8 July  <http://www.un.org/peace/kosovo/news/kos30day.htm>.
7 See Human Rights Watch, Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (HRW Report, No. 10(D), 1999).
8 See Kaminski, Matthew, UN Struggles with a Legal Vacuum in Kosovo; Team Improvises in Effort to Build a Civil Structure, Wall St. J., Aug. 4, 1999, at A14 Google Scholar.
9 See Secretary-General’s Kosovo Report, supra note 5, para. 6.
10 The KLA (also known under its Albanian acronym UCK for Ushtria Clirimtare e Kosoves) was the main military organization fighting for the liberation of Kosovo from Serbian rule. Its origins go back as far as 1996. Only in November 1997, however, did UCK members identify themselves for the first time to the public.
11 By early July, approximately 58,000 members of ethnic minorities in Kosovo, mainly Serbs, had left the territory and registered for assistance with the Yugoslav Red Cross. See further Lawyers Committee for Human Rights, Kosovo: Protection and Peace-Building: Protection of Refugees, Returnees, Internally Displaced Persons, and Minorities 2 (1999).
12 SC Res. 1244, supra note 3, para. 9(d). “Operation Joint Guardian” commenced on June 12, 1999.
13 See Controversy Erupts as Kosovo Judges Sworn in, Shape News Morning Update, July 1, 1999 <http://www.fas.org/man/dod-101/ops/docs99/mu010799.htm>.
14 See European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950, Art. 5(3), 213 UNTS 221: (“Everyone . . . shall be brought promptly before ajudge or officer authorized by law to exercise judicial power...”). The term “promptly” represents a stringent standard. In Brogan v. United Kingdom, 145 Eur. Ct. H.R. (ser. A) at 28-30, paras. 49-53 (1988), obtainable from <http://www.echr.coe.int/eng/Judgments.htm>, the European Court of Human Rights held that four days and six hours was too long a period to meet this standard. See also International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 9(3), 999 UNTS 171.
15 UN Secretary-General Kofi Annan was quoted as saying: “The security problem in Kosovo is largely a result of the absence of law-and-order institutions . . . .” See John J. Goldman, Kosovo Tense But Getting More Stable, UN Reports, L.A. Times, July 14, 1999, at A12. 16 In February 1989, ethnic Albanians held widespread strikes in Kosovo, a province of the Republic of Serbia, to protest proposed constitutional amendments to the Serbian constitution aimed at limiting the province’s autonomy status. The federal authorities of Yugoslavia imposed “special measures”—a de facto state of emergency— and sent troops into the province. On March 23, 1989, the constitutional changes were approved, effectively giving Serbia control over Kosovo’s police and judiciary. In July 1990, following a resolution approved by 114 Kosovar Albanian delegates to Kosovo’s assembly declaring the territory “an equal and independent entity within the framework of the Yugoslav federation,” Serbian authorities abolished both the assembly and the government of Kosovo, closed down the only Albanian daily, and took over the state-owned television and radio stations. See Noel Malcolm, Kosovo, A Short History 346 (Harper Perennial 1999) (1998).
17 See Secretary-General’s Kosovo Report, supra note 5, para. 66.
18 See Traub, James, Inventing East Timor, Foreign Aff., July/Aug. 2000, at 74, 82-83Google Scholar.
19 To date, the exact number of refugees and internally displaced persons in East Timor in October 1999 has not been definitely established. It has been estimated, however, that more than one-third of East Timor’s pre- September 1999 population of some 800,000 was at least temporarily dislocated. According to UNTAET sources, a total of 162,444 refugees had returned to East Timor from abroad by May 31, 2000. In addition, tens of thousands of people who had temporarily left their homes and escaped to safer locations in the mountainous regions of East Timor had returned to their places of origin.
20 According to the World Bank-sponsored Joint Assessment Mission to East Timor, over 70% of all administrative (i.e., government) buildings were partially or completely destroyed, and almost all office equipment and consumable materials totally destroyed. World Bank, Joint Assessment Mission Report 4, para. 15 (Dec. 17, 1999), obtainable from <http://www.wbln0018.worldbank.org/eap/eap.nsf>; see also Report of the Secretary-General on the Situation in East Timor, UN Doc. S/1999/1024, paras. 11-13 (Oct. 4, 1999).
21 See Hansjörg Strohmeyer, Building a New Judiciary for East Timor: Challenges of a Fledgling Nation, 11 Crim. L.F. 259 (2000).
22 See SC Res. 1264, supra note 2. The Interfet-run Forced Detention Center delivered over 25 detainees into the custody of the UNTAET civilian police and the East Timorese judiciary on January 14, 2000. Many of these detainees had been arrested by or handed over to INTERFET on charges of serious violations of international humanitarian and human rights law committed during the postballot violence.
23 Based on its mandate to restore peace and security in East Timor, the Australian INTERFET contingent had created a temporary detention system. Individuals apprehended by INTERFET were held in the Forced Detention Center and granted an initial hearing by an INTERFET legal adviser within 24 hours. If not released, they were transferred, within 96 hours, to the Detention Management Unit for review of the detention order. The Detention Management Unit consisted of four additional INTERFET legal advisers (one reviewing officer, one prosecutorial officer, one defending officer, and one visiting officer) who reported to the commander of INTERFET on a daily basis. In addition, the International Committee of the Red Cross, the UN High Commissioner for Refugees, and family members were granted regular visits to ensure adherence to generally accepted prison standards.
24 In Kosovo, since the Serb withdrawal was still ongoing and the public buildings subsequently required extensive de-mining and cleanup efforts, the de facto headquarters of UNMIK in the first two weeks was located in the residential building that had served as the living quarters of the initial UN staff since their arrival on June 13, 1999.
25 See further infra note 41.
26 See Amnesty International, Amnesty International’s 16 Recommendations to the Parties at Rambouillet, para. Ill (AI Index No. EUR 70/08/99, 1999).
27 See UNMIK Emergency Decree 1999/1 (June 28, 1999). 28 See UNMIK Regulation 1999/7 (Sept. 7, 1999). According to section 2.1 of this regulation, the composition of the commission was changed to eight local and three international lawyers, of different ethnicity and reflecting varied legal expertise.
29 See UNTAET Regulation 1999/3, §2 (Dec. 3, 1999). The current chairman of the commission is Bishop Dom Basilio de Nascimento from the diocese of Baucau.
30 The membership of the Transitional Judicial Service Commission was determined by the UN transitional administrator, in concert with the National Consultative Council (NCC). The NCC was the supreme body established by UNTAET to provide a consultative mechanism to ensure the participation of the East Timorese people in the decision-making process during the transitional administration in East Timor. The council consisted of 15 members, 11 of them East Timorese, appointed by the transitional administrator. In October 2000, the NCC was expanded into a 33-member body, in effect serving as the nucleus of an East Timorese parliament. See UNTAET Regulation 1999/2 on the Establishment of a National Consultative Council (Dec. 2, 1999).
31 On the strikes, see supra note 16.
32 See SC Res. 1244, supra note 3, para. 10 (“to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo”); see also Secretary-General’s Kosovo Report, supra note 5, paras. 40, 66.
33 See Secretary-General’s Kosovo Report, supra note 5, para. 66 (“There is an urgent need to build genuine rule of law in Kosovo, including through the immediate re-establishment of an independent, impartial and multi-ethnic judiciary.”).
34 The OSCE mission in Kosovo forms one of the four integral components of UNMIK and is responsible for matters relating to institution- and democracy-building, and human rights in Kosovo.
35 The nine judges and prosecutors included five Kosovar Albanians, three Serbs, and one ethnic Turk. See Controversy Erupts as Kosovo Judges Sworn in, supra note 13.
36 See UNMIK Press Release, July 24, 1999, UN Doc. UNMIK/PR/18; see also Lawyers Committee for Human Rights, supra note 11, at 5.
37 The Australian Section of the International Commission of Jurists (ICJ) supported this assessment. See ICJ, Report on Visit to East Timor for East Timor Project Committee March 2000 (2000).
38 See UNTAET Regulation 1999/3 on the Establishment of a Transitional Judicial Service Commission (Dec. 3, 1999).
39 The appointments on January 7, 2000, included eight judges and two prosecutors. Their swearing-in ceremony, held in the still-devastated shell of the courthouse in Dili, was an emotional experience for both the East Timorese and the internationals involved. Before some 100 members of the general East Timorese public and numerous representatives of the international community, UNTAET Transitional Administrator Sergio Vieira de Mello took the oath from each appointee and handed each one a black robe.
40 Since the legal systems in both Kosovo and East Timor were based on civil law, potential international judges and prosecutors were required to have sufficient practical experience in the administration of justice in a civil-law system to be immediately operational. Moreover, those lawyers had to be proficient in English—the working language of the missions—and able to make a longer-term commitment.
41 Extensive involvement of international lawyers would inevitably have led to the need for translation of every court session and every court-produced and legal document, the interpretation of every communication with other lawyers, and, more important, the creation of an extensive translation apparatus for plaintiffs and defendants. Also, in East Timor in particular, it has proven to be virtually impossible to deploy a sufficient number of international jurists with a civil-law background who are able to make a minimum commitment of six months to one year in East Timor and, ideally, have some knowledge of the applicable law and traditions of East Timor.
42 Supported by the New Zealand Institute of Judicial Studies, UNTAET has been developing plans to establish a Judicial Studies Board (JSB) since January 2000, in order to institutionalize judicial training and education. The JSB was intended to comprise seven members, four of whom would be East Timorese jurists, who would identify and set priorities regarding training needs, coordinate donor assistance on legal training, and promote judicial excellence, including awareness of the social context of law.
43 Secretary-General’s Kosovo Report, supra note 5, para. 69 (also stating that “[g]enerally, newly appointed judges should receive continuous training, particularly in the area of the law and application of international instruments on human rights”).
44 Following the abolition of Kosovo’s autonomy status in 1989 and the subsequent closing of ethnic Albanian institutions in the territory, the Kosovar Albanian population established a system of so-called parallel institutions, essentially the creatures of a separate republic, among others in the educational sector, that were intended to continue Kosovo’s self-government and to maintain a distinct Albanian culture and identity outside the official Serb- or Yugoslav-dominated institutions. With the closing of the Albanian wing of the law faculty of the University of Priština in 1991, the Kosovar Albanian teaching staff and students were forced to find shelter in private homes and buildings so as to continue a distinct legal education for those students. Despite the lack of governmental funding and severe practical difficulties—for example, all literature was kept in the libraries of the Serb faculty building, which was barred to Kosovar Albanians—the Faculty of Law, like all other faculties of the University of Priština, maintained its struggle to provide adequate education throughout the period of Serb administration of Kosovo. See further Malcolm, supra note 16, at 348-49.
45 UNMIK Regulation 1999/1, supra note 3, §2, which states:
In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards and shall not discriminate against any person on any ground such as sex, race, color, language [,] religion, political or other opinion, national, ethnic or social origin, association with a national community, property, birth or other status.
46 For more detail, see the section “Legal Framework” infra p. 58.
47 See supra note 20 and corresponding text.
48 In January 2000, Australian Legal Resources International appealed to the Australian legal profession, on behalf of UNTAET and through the Law Council of Australia, for law texts, courtroom furniture, computers, and judges’ robes. The response was overwhelming.
49 On this subject, see the findings of Human Rights Watch, Unfinished Business: Justice for East Timor, Press Backgrounder (Aug. 2000).
50 See UNMIK Regulations 1999/1, supra note 3; 1999/2 (Aug. 12); 1999/5 (Sept. 4); 1999/6 (Sept. 7); 1999/7 (Sept. 7) (replacing UNMIK Emergency Decree 1999/1); see also UNTAET Regulations 1999/1, supra note 3; 1999/3, supra note 29; 2000/11 (Mar. 6); 2000/14 (May 10); 2000/15 (June 6); 2000/16 (June 6).
51 See UNMIK Regulation 1999/1 and UNTAET Regulation 1999/1, supra note 3, §§2, 3. The wording of section 3.1 of UNTAET Regulation 1999/1 (the factual statement “the laws applied” is used rather than “the applicable laws”) carefully avoids the retroactive legitimation of the Indonesian occupation in East Timor.
52 See Kaminski, supra note 8.
53 According to section 1.1 of UNMIK Regulation 1999/24 (Dec. 12,1999), “[t] he law applicable in Kosovo shall be: a. The regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued there under; and b. The law in force in Kosovo on 22 March 1989.” According to section 3, “[t]he present regulation shall be deemed to have entered into force as of 10 June 1999.”
54 See Republic of Indonesia, Department or Information, Law-Book on the Code of Criminal Procedure Arts. 20, 24 (n.d.) (Act No. 8/1981).
55 Sec International Crisis Group, Kosovo Report Card 31, 44 (ICG Balkans Report No. 100, 2000) (stating that the criminal offenses “included 172 murders, 116 kidnappings, 160 attempted murders, and 220 grievous assaults”).
56 Compared to the improvised policy in Kosovo, the existence in East Timor of the INTERFET-sponsored Detention Management Unit, see supra note 23, until early January 2000 allowed UNTAET at least to engage in more in-depth planning of the future judicial system and to carry out the difficult search for East Timorese jurists.
57 Ideally, they would apply the set of interim rules on criminal procedure and substantive criminal law referred to in the fourth recommendation at p. 62 infra.
58 The United Nations’ Model Agreement with member states that contribute personnel and equipment to peacekeeping operations includes the following standard provision: “[The United Nations peacekeeping operation] shall observe and respect the principles and spirit of the general international conventions applicable to the conduct of military personnel.” See Shraga, Daphna & Zacklin, Ralph, The Applicability of International Humanitarian Law to United Nations Peace-Keeping Operations: Conceptual, Legal and Practical Issues, in International Committee of the Red Cross, Symposium on Humanitarian Action and Peace-Keeping Operations 39, 44 (Palwankared, Umesh., 1994)Google Scholar.