The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (99 page)

Comparisons with the League’s Mandate System and the UN’s Trusteeship System are instructive in this regard because both institutions contained more effective oversight and accountability mechanisms. As with transitional administrators today, the mandatory powers and trustees were required to submit regular reports (annually as it happens) and to give oral testimony in Geneva or New York, but one important difference is that there was a dedicated supervisory body – the Permanent Mandates Commission (PMC) in the case of the League, and the Trusteeship Council in the case of the United Nations – whose responsibility it was to review these reports and to oversee the administration of the territories more generally.

The existence of a dedicated body made oversight somewhat more rigorous. If nothing else, these bodies had more time than the Security Council ever could to enquire into details about the workings of the territorial administrations. Greater oversight was also warranted arguably as the mandatory powers and trustees were independent states whereas transitional administrators are representatives of the UN Secretary-General. The reports from the mandatory powers were fairly detailed as they consisted of responses to a series of specific questions that the PMC posed (the number of questions expanded from 60 to 275 over the lifetime of the PMC). It is interesting to reflect on what this more focused form of scrutiny, as opposed to general oversight, may have achieved: some suggest that it encouraged the mandatory powers to carry out the principles of the mandate in a more consistent and more reliable manner. Certainly in the case of South African-administered South West Africa, the PMC made South Africa accountable in ways that would not otherwise have been the case, as evidenced by the ‘Bondelswarts affair’, when in 1922 South African forces massacred some 100 Bondelswarts rebels, using rifles, machine guns, and even strategic bombing. The PMC inquiry brought international attention to bear on South Africa’s conduct, which appears to have improved its administration of the territory as a result.
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The Trusteeship Council has had even more accountability mechanisms at its disposal: in addition to reporting, it can and has made periodic visits to the trust territories; something the PMC did not do. Moreover, the Trusteeship Council could accept petitions from inhabitants of the territories. (There is no provision for individual petition in the context of UN territorial administrations.) The oversight capacity that the Trusteeship Council has is one reason why there have been calls from time to time for the revival of the Trusteeship System to supervise UN territorial administrations.
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However, that would require Charter revision, as the UN Charter does not allow the application of the Trusteeship System to member state territories.
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Moreover, the Trusteeship Council has strong associations with colonialism. It is hard to see how the idea would be acceptable, especially among states that were formerly colonies themselves and in the light of the recommendation put forward by the 2005 World Summit to abolish the Trusteeship Council altogether.

The notion of reviving the Trusteeship Council points to a dilemma for the UN – something that the Panel on United Nations Peace Operations, chaired by Lakhdar Brahimi, noted in its report in August 2000: while on the one hand, some greater institutionalization of UN responsibility in this area – a dedicated and distinct responsibility centre – could strengthen the capacity of the UN to administer territories more effectively, institutionalization would also create expectations that the UN should be employed to undertake more and more operations of this kind, something that the Secretariat and many UN member states are not particularly keen for the organization to do.
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Failure to institutionalize responsibility, however, means that the UN may always find itself responding to these situations in an ad hoc fashion, although by now at least it has built up rather considerable experience.

There are other ways in which oversight could be enhanced, not all of them necessarily involving the Security Council. One is to enlarge the institution of the ombudsperson. All international territorial administrations have ombudspersons, whose remit is normally concerned with human rights violations. The ombudsperson could, however, be empowered to receive and investigate complaints from citizens about the process of international administration – for instance, procedural improprieties, bias, or the lack of due process – and make recommendations to the transitional authority on the basis of his or her findings. The ombudsperson would not be able to strike down the decisions of international authorities but the recommendations might carry some weight. There is a precedent for such an enlargement of responsibilities: elsewhere ombudspersons deal with complaints across the whole spectrum of governmental activities.
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The more fundamental problem is that too often international administrators view the ombudsperson as an irritant rather than as a vital institution. A high-profile appointment may help to enhance the stature of the office but the problem is not an easy one to resolve.

A second mechanism for strengthening accountability is expanded jurisdiction of the local high courts. As these courts demonstrate that they are capable of deciding issues in a fair and impartial manner, they could be given authority to review international authorities’ exercise of powers if and when these seem to be incompatible with locally enacted legislation. The Bosnian Constitutional Court, for instance, has jurisdiction over issues concerning whether a law is compatible with the constitution, international human rights law, and general rules of public international law.
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In November 2000, for the first time, the Court reviewed a decision of the High Representative (regarding the creation of a unified border service for Bosnia and Herzegovina), which, although the legislation was found to be in conformity with the constitution, established a precedent for a local institution (or, more accurately, a mixed local-international institution) to challenge the legality of an international act.
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Before local courts can assume more authority, however, it may be necessary to amend the international legislation defining the powers of international administrators to allow for some form of judicial review.

Finally, there may be some scope for the newly established UN Peacebuilding Commission to exercise oversight of territorial administrations. The Commission, an intergovernmental body established in December 2005, is charged with advising and proposing strategies for post-conflict recovery and focusing attention on reconstruction, institution-building, and sustainable development in countries emerging from conflict.
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The enabling legislation allows for representatives from the countries in question to participate in country-specific meetings of the Commission. In future, the Commission might also consider accepting petitions from local residents, in the manner of the UN Trusteeship Council.

The third function of the Security Council is to promote the diffusion of norms with regard to human rights, minority rights, democratic governance, the rule of law, market-oriented economics, and gender equality, among other political, social, and economic objectives. This is a function that the Permanent Mandates Commission and the Trusteeship Council also performed, in their own and more modest ways, which Neta Crawford has documented in her book,
Argument and Change in World Politics.
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Sometimes these norms are specified by the Security Council: Resolution 1244, for instance, which authorized the establishment of UNMIK in Kosovo, mandates the development of democratic institutions of self-government, the protection and promotion of human rights, and cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), among other rule of law measures. Other norms may be articulated by the Secretary-General, in his concept of operations, or by the transitional administrator in his implementation of the concept. The norms may also be promoted by international agencies working alongside the UN. The World Bank and the International Monetary Fund (IMF), for instance, have chief responsibility for the formulation of reconstruction and development strategies in which tend to be embedded liberal economic values that favour deregulation, privatization, and foreign investment as opposed to less market-oriented approaches that would allow greater scope for, say, industrial policy and employment protection measures.
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This function is not unique to the international administration of territories: the UN and other third parties have been active before in the promotion of norms in particular territories in the context of complex peacekeeping operations, or in the case of donors and international financial institutions (IFIs), through the use of aid conditionality. What is different about international territorial administrations, however, is the scope of the potential influence of the UN and other third parties, seeking as they do in some cases utterly to transform the society which they are administering.

These norms may not always be a reflection of the preferences of the local population. The question therefore arises: how much should the UN and other third parties respect local norms and values? For instance, traditional tribal structures and practices may be inimical to liberal democratic practices. ‘Gender mainstreaming’ in UN parlance, which has resulted in the setting of quotas for women in public office, may, for example, be at odds with traditional views about a woman’s place in society. But sometimes it is the UN that is behind the curve: in East Timor the World Bank required equal numbers of men and women on its development councils (the councils had authority to allocate limited development funds made available to them) but the UN objected to strict gender balance on the councils, arguing that it was culturally inappropriate. The UN then had to yield under lobbying and pressure from none other than East Timorese women themselves.
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Nevertheless, a notion as fundamental as that of the democratic state – an entity made up of citizens enjoying equal rights and who are governed by popularly elected officials – may not necessarily be compatible with traditional concepts of governance, which in some places may be predicated on ideas of sacred and ancestral authority. How sustainable internationally designed institutions and practices may be under these circumstances is not clear. As one anthropologist working for the UN administration in East Timor has written: it is ‘impossible to create instant trust in [non-traditional] state bodies.… The population’s trust in state bodies has to be fostered and the puzzle of how to overcome paradigmatic differences in terms of local governance has to be solved.’
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Yet it is also true that the structural and other factors that contribute to a conflict dynamic may need to be transformed if a given society is to transcend the chronic violence that plagues it. While Kimberly Zisk Marten and others maintain that outsiders are seldom able to control the process of political development and should therefore restrict themselves to the more minimal objective of providing a secure environment,
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the more recent experience of Bosnia and Herzegovina suggests that even seemingly intractable conflict dynamics can in some cases be transformed under international tutelage. How sustainable and how transferable this experience may be, however, is an open question.

The ‘clash of cultures’ – if that is what it is – that may occur is compounded by the fact that to some extent a transitional administrator’s hands are tied because he or she cannot easily ignore Security Council resolutions and commitments contained in other UN documents that urge the organization and its member states to promote particular norms. Resolution 1325, for example, ‘On Women and Peace and Security,’ adopted in October 2000, among other things stresses the importance of equal participation of women in the maintenance of peace and security and airms the need to increase their role in decision-making with regard to conflict prevention and resolution. Some of these same issues arise in the context of discussions about the universality of human rights but in many ways the problem is more immediate for the UN in the administration of territories because the UN is the surrogate state sovereign.

Even without an explicit Charter basis for the administration of war-torn or contested territories, the UN Security Council has played an important role in the initiation, legitimization, and (potential) oversight of these administrations as well as in the promotion of political, social, and economic norms. It remains to be seen, however, how much, if at all, this particular instrument of conflict management is likely to be employed in the future. Much will depend on how effective international administrations are seen to be – a question that will be debated for some time, especially given how recent these experiences have been. Yet whatever the shortcomings of these administrations, it is fair to say that Security Council authorization and management of them have at least helped to dispel fears that they represent a latter-day imperialism. After all, what kind of imperialism is it that attracts the support and participation of large numbers of states, whose costs greatly outweigh any obvious material or strategic gains, and that does not aspire to more than the temporary exercise of control over a territory? (Indeed, in the cases of Eastern Slavonia and East Timor, the international administrations put themselves out of business in very short order.) Transitional administrations may sometimes govern using the methods of empire but that does not make them instruments of imperialism.

Even if some success can be claimed for international administrations, the utility of this approach may be very limited beyond the few instances where it has been applied. The territories in question are likely to be small; external parties must be willing to expend considerable resources over an extended period of time; and, ideally, the local population must be willing to work with the international authorities to achieve agreed-upon aims. The UN’s ‘light footprint’ approach in Afghanistan suggests for many, inside and outside the organization, a preferred model.
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Thus while there may be many candidates for Security Council-mandated international administrations in the future, it is not obvious that in many of those cases this option will be either appropriate or available.
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