Current  international  involvement  in  Bosnia  and  Herzegovina,  Kosovo  and East  Timor  has  two  elements

Wilde, Ralph

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ACCOUNTABILITY AND INTERNATIONALACTORS IN BOSNIA AND HERZEGOVINA,KOSOVO AND EAST TIMORRalph Wilde*Current international involvement in Bosnia and Herzegovina, Kosovo andEast Timor has two elements. The first is an "accountability" element,consisting of various judicial and non-judicial processes. This element includesthe International Criminal Tribunal for the former Yugoslavia (ICTY), theproposed mixed international/local courts for "special crimes" in Kosovo, andthe mixed international/local process for prosecuting militia members forserious crimes committed after the East Timorese referendum in 1999. Thesecond is a territorial administration element. Here, international actors assertthe right to exercise either plenary powers of administration-as with the UnitedNations Mission in Kosovo (UNMIK) and the United Nations TransitionalAuthority in East Timor (UNTAET)-or certain governmental prerogatives(e.g. the right to impose laws), as with the Office of the High Representative(OHR) in Bosnia and Herzegovina.In this paper, I suggest that the two elements of international involvement-accountability and administration-have been conceived by international lawas mutually exclusive. That is to say, the accountability agenda has been set upto address a particular area of activity, excluding the conduct of territorialadministration by international actors. I argue that such an exclusion has apotentially negative impact within the territories affected. I set out the powersasserted by and accountability regime directly applicable to international actorsin the sphere of territorial administration, and suggest the reasons for and theeffects of a lack of accountability in this sphere. In this regard, I look atinternational law's regulatory structures insofar as these structures are directlyapplicable tot he international actors involved. I am not concerned, therefore,with how such structures might engage with the activity- of territorialadministration because this activity engages the legal personality of the hostterritorial entity.'* Ralph Wilde, Trinity College, Cambridge University, CB2 ITQ, UK, rgw25@cam.ac.uk.1. 1 discuss this issue in The complex role of the legal advisor when international organizationsadminister territory (forthcoming, 2001, PRoc. AM. Soc. IL). As far as Bosnia and Herzegovina isconcerned, see Consitutional Court of Bosnia and Herzegovina, Decision in Case U 9/100 (regarding the Lawon the State Border Service), Nov. 3, 2000, available at http://www.ustavnisud.ba/homelen/index.html, (lastvisited May 15, 2001) [hereinafter Case U 9/100] at part 5.456 ILSA Journal of International & Comparative Law [Vol. 7:455In each of the administration projects, international actors assert extensiveadministrative powers. These powers are broad in terms of their subject-matter,covering the whole spectrum of territorial administration. For example, underResolution 1272, the United Nations Transitional Administration in East Timoris "endowed with overall responsibility for the administration of East Timor and... empowered to exercise all legislative and executive authority, including theadministration of justice."2  These powers are also wide in scope, beingexplicitly conceived with minimal standards delineating how they are to beexercised. Much of general international law-such as human rights andenvironmental law-is clearly relevant to the conduct of territorialadministration. However, traditionally this law is conceived in terms of stateor (in the case of gross human rights abuses) individual responsibility.In Bosnia, Herzegovina, and Kosovo, international actors have beengranted the usual privileges and immunities, undermining the capacity ofnational law to regulate them directly for their conduct of administration.' InEast Timor, UNTAET considers itself immune from local jurisdiction, althoughat the time of this writing, no legal instrument relating to such immunity hasbeen passed in local law. An Ombudsperson has been introduced belatedly inKosovo, and a similar institution is, at the time of this writing, at the proposalstage in East Timor.4 The Kosovo Ombudsperson has the power to hearcomplaints "concerning human fights violations and actions constituting anabuse of authority" by UNMIK, but only has the power to makerecommendations as a result of these complaints.'This attenuated local system of accountability is more than matched at theinternational level, since none of the international judicial scrutiny mechanismscan hear complaints brought against the international actors involved arising outof their conduct of territorial administration. Looking at the International Courtof Justice (ICJ), scrutiny would only seem possible in the (somewhat unlikely)event of the United Nations referring a case relating to its own activities for anon-binding advisory opinion.' Beyond judicial mechanisms, there is, of2. U.N. Scor, 4057th mtg., at 2, U.N. Doc. S/RES/1272 (1999).3. For Bosnia and Herzegovina, see Bosnia and Hercegovina Croatia Federal Republic ofYugoslavia: General Framework Agreement for Peace in Bosnia and Hercegovina with Annexes, Dec. 14,1995, 35 ILM 75, available at http://www.ohr.int/gfalgfa-home.hIm, (last visited Dec. 3, 1999) [hereinafterDayton Peace Agreement] done at Paris, e.g. Annex IA, article VI.9.a and Annex 10, art. M. For Kosovo,see UNMIK Regulation 2000/47, UNMIK Doc. UNMIK/REG/2000/47 (2000).4. For the Kosovo Ombudsperson, see UNMIK Regulation 2000/38, UNMIK Doe.UNMLK/REG/2000/38 (2000). UNMIKIREG/2000/38, available at http://www.ohr.int/gfalgfa-home.hm,supra note 3 [hereinafter UNMIK Regulation 2000/38]. Source of information on the East TimorOmbudsperson proposal: e-mail from a member of the UNTAET Legal Office, December 2000.5. UNMIK, Regulation 2000/38, supra note 4, at 1-2.6. See Statute of the International Court of Justice, Art. 34.1, Art. 65.2001]course, also the United Nations Security Council. However, in addition to theusual problems that are raised by the idea of the Security Council as an effectiveregulatory mechanism (its unrepresentative nature, the veto etc.), an additionalindependence question is raised by the fact that this body played a formal rolein creating each of the administration projects to begin with.A striking example of the combined inadequacy of domestic andinternational scrutiny mechanisms directly applicable to international actorswhen they carry out territorial administration would be the mandates of OHRand the military Stabilization Force (SFOR) in Bosnia and Herzegovina.Dayton grants both organizations "final authority" power "in theatre" (viz.Bosnia and Herzegovina) to interpret their respective mandates.7 Since themandates exist as a matter of international law, the "in theatre" caveat suggeststhat the final authority power does not render all interpretations made by OHRand SFOR automatically lawful, but rather makes the legality of suchinterpretations unchallengeable in Bosnia and Herzegovina. Taking thisdomestic exclusion alongside the lack of international jurisdiction, it wouldseem that, lawful or unlawful, all interpretations of these mandates by therelevant international actors go unchallenged as far as the institutions of nationaland international judicial scrutiny are concerned.8Considering the above factors together, international actors engage inadministrative activity that is similar to (and, indeed, necessarily based on) theactivity performed by states in their own territory, yet no comparable regulatoryregime applies directly to them when they engage in such activity. Some of thereasons for this lie in two broad areas: first, assumptions concerning thebehavior of states and international organizations, and second, the manner inwhich territorial administration by international actors has emerged.The way international law applies to international organizations and statesassumes that these two actors perform different activities. With territorialadministration, the assumption is that states perform this activity andinternational organizations do not. This assumption explains who is involvedin regulating territorial administration, and in what role. States are regulated;international organizations are not, and, moreover, act in a regulatory role (forexample, through monitoring human rights). The international regulatoryprocess reflects, and thereby reinforces, these distinct roles and the assumptionthat lies behind them. Moreover, the assumption that states administer territoryand international actors do not is reflected in the way international lawinfluences the application of national law to these two actors. Whereas the law7. See Dayton Peace Agreement. supra note 3. Annex IA, art. XII (SFOR); Annex 10, art. V(OHR).8. They may however, be challengeable not as the acts of international actors, but as the acts ofthe state. See supra note 1.Wilde458 ILSA Journal of International & Comparative Law [Vol. 7:455is silent with respect to local governments (in their own state), as I have alreadysaid it grants international actors immunity from national law. This immunityreflects an idea that international organizations do not perform "local" activities(such as administration), but rather, perform activities that are distinct andsomehow "above" the "local" (such as scrutinizing territorial administration bystates).A further potential cause of the accountability deficit is the way the currentadministration projects merged and were conceived. The projects developed inan ad hoc manner, with different organizations involved (OHR in Bosnia andHerzegovina, the United Nations in Kosovo and East Timor). Each project isconceived as "temporary" and "interim," with the full conduct of territorialadministration by local actors the eventual goal. These two factors can undercutarguments calling for accountability mechanisms applicable directly tointernational actors when they engage in territorial administration-there is noneed to bother too much about accountability for something that will not lastand may not recur.What effect does this accountability problem have on the activity itself andthose affected by it? One of the objectives in the current projects is to fosterconditions for a liberal-democratic order in the territory, rooted in human rights,a vibrant civil society, the rule of law and an elected, representative government.Whereas territorial administration by international actors seeks to promote theseconditions, paradoxically it operates in an autocratic manner itself-"benevolentdespotism," as Sergio Vierra de Mello, the head of the United Nationsadministration in East Timor, puts it.9 An aspect of this 'despotism' is, ofcourse, the lack of accountability. One danger is that territorial administrationby international actors may be undermining its own objectives, by establishinga precedent for governance that is unaccountable, centralized and autocratic.Moreover, the accountability deficit with respect to international actorswhen they carry out administration creates further problems when consideredalongside other areas where accountability is promoted. This brings me backto the accountability agenda I sketched at the start. One of the arguments madefor the International Criminal Court (ICC) was that justice is compromisedwhen it is selective. The presence of ad hoc tribunals with limited temporal andterritorial scope, in the absence of an ICC, effectively privileges accountabilitywith respect to a narrow geographical area and time period. Looking at theissue of selectivity from a different angle, the existence of criminal tribunalswith certain subject-matter jurisdiction over individuals, in the absence ofaccountability mechanisms applicable directly to international actors conductingadministration, may operate on a symbolic level to foster an idea that9. SERGIO VIERRA DE MELLO, How NOT TO RUN A CouNTRY: LESSONS FROM KOSOVO AND EASTTIMOR (2000).2001]accountability operates exclusively on the individual level, and only in respectof the most serious acts. I shall discuss these two symbolic elements in turn.First, the symbolism of focusing exclusively on individual accountability.Of course, because of the role played by group identity in the 1991-95 conflictin the former Yugoslavia, many found the focus on individual rather thancollective local accountability appealing. However, this consideration, whateverits merits, is on its own terms inapplicable to collective responsibility as far asinternational actors are concerned. Moreover, the above objective allied to theconduct of administration by international actors-promoting a liberaldemocratic order-is necessarily rooted in the idea of a collective polis. Inadministration, therefore, the nettle of collective identity has been graspedalready, albeit in a confused fashion in the case of Kosovo, given the continuinguncertainty as to that territory's eventual status. An exclusive focus on theindividual in the accountability sphere risks undermining the project of forginga particular kind of collective identity in the political sphere.Turning to the symbolism of focusing exclusively on serious crimes.Again, the commission of these crimes is considered more important than otherforms of accountability, because of their serious nature. Such a consideration,however, concerns relative importance: it does not itself suggest why otherforms of accountability should be almost totally absent. Moreover, in the longterm, an absence of other forms of accountability may operate on arepresentational level to occlude the changes that happen in the society affected.The prosecution of serious crimes symbolizes a deeply traumatized society.Equally, the operation of other, less important accountability structures alsosymbolizes a society where accountability issues are no longer as grave. As faras Bosnia and Herzegovina is concerned, the vast majority, if not allprosecutions at the ICTY concern acts that took place at least five years ago.Whereas these prosecutions continue to symbolize the trauma of the Bosnianpeople, certain other accountability mechanisms symbolizing how Bosniansociety has changed since 1995-such as mechanisms directly applicable tointernational actors-are absent. Yet all can agree that, regardless of whetheranything else has changed significantly since Dayton, the kinds of acts thatcome under ICTY jurisdiction no longer take place to anywhere near the samedegree.Another representational problem with the current accountability bias isthat it risks creating a perception that accountability is for "us" the local people,not "them" the international officials. Whereas some of the reasons forterritorial administration by international actors-for example, filling theadministrative vacuum after conflict-are understood, the reasons forunaccountability on the part of international actors are not. This apparentinconsistency creates the impression of arbitrariness, potentially making morepersuasive the idea that territorial administration by international actors is aWilde460 ILSA Journal of International & Comparative Law [Vol. 7:455paternalistic, imperialist endeavor. In turn, this idea threatens the project offostering conditions where a liberal-democratic political system can flourish, byreinforcing perceptions that the project is about imposing an alien system ratherthan supporting local political initiatives.In conclusion, the international regulatory regime directly applicable tointernational actors when they carry out administration needs to be transformed.This requires changes in the law and legal enforcement modalities. Territorialadministration by international actors is a significant institution of internationalpolicy that profoundly affects the lives of people in Bosnia and Herzegovina,Kosovo and East Timor, and may be utilized in other situations in the future.The ad hoc criminal tribunals were followed by the joined-up thinking oninternational criminal justice effected through the institution of the ICC. Whatis also needed, in the light of the ad hoc administrative projects, is joined-upanalysis on the way international actors can be made more directly accountablefor their conduct of territorial administration.

Accountability And International Actors In Bosnia And Herzegovina, Kosovo And East Timor

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Accountability And International Actors In Bosnia And Herzegovina, Kosovo And East Timor

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