Abstract:

Before elaborating on the nature of UNMIK as a sui generis model of international governance, one must analyze the models of UN territorial administration as well as UN peacekeeping in general.

In literature on international law there is still no book published on UNMIK, just tens of studies that deal with this topic and with NATO’ s intervention in Kosova.[1] In general, there is a lack of knowledge about UNMIK, except with some special research centers and experts from the field of international law. [2]

Regarding the nature of UNMIK, in the literature there are different opinions that describe UNMIK as a UN peacekeeping mission, as a peace enforcement operation, as a moderate UN trusteeship model, as a UN territorial administration or as an international governance with the whole society. It seemed that last two qualifications are more appropriate to the nature of UNMIK, within the doctrine of “international government”.[3]

This study is based on the results of my recent research on: ”International governance with post-conflict situations”, conducted in the Law School of the University of Southern California, USC Los Angeles, within Senior Fulbright Fellowship, in Spring Semester 2003.

I. A Comparative Overview on UNMIK and Un Peacekeeping Operations: 1948 - 2003

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Although we established from the origin of the doctrine of international governance the “Treaty of the Holy Alliance” of 1815, through the so-called European Concert, the League of Nations and the UN [4]; it seemed that a more realistic approach would be that this form of international governance in the form of an International territorial administration under the authorization of international organization is the new phenomena of international relations, “basically, as a twentieth-century development”[5].

After World War I, the Treaty of Versailles gave particular responsibilities to the League of Nations to administer some territories, such as: the Saar Territory, and the case of the Free City of Danzing[6].

After the Second World War, the international community entrusted the United Nations with governing the former colonial territories of Japan and Italy, then contested areas, such as was the city of Trieste, and finally by the cases of the late 1980s which marked the beginning of a new era of peacekeeping missions[7]. But some authors had a basic dilemma: does the UN represent an international government or an international organization? [8] As we can see in our latter explanation, the UN has some functions of international governance, especially within the scope of international territorial administration in post-conflict situations. The UN remains an international organization, because, as Morgenthau and Thompson pointed out, there is still not a “world state” [9], consequentially no international government, as a supra-national authority. Our world still remains a world of sovereign states, though with some exceptions, such as the European Union. [10]

But it does not matter that in some specific instances, in particular in post-conflict situations, the UN did not establish its territorial administration with these territories. It was a well-known practice of the UN during the period immediately after the Second World War. The latest case of UN territorial administration “invoked Chapter VII of the Charter of the UN in order to establish a direct and comprehensive UN administration: the first case was the UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirrium, (UNTAES), the last being the UN Transitional Administration in East Timor, (UNTAET)[11]. Thus, this new practice of the UN administering a territory created the phenomenon of “internationalized territory”, that is, a territory “placed under the supervision of international organizations or a group of states”[12]. By this model of international governance, especially in the case of the United Nations Mission in Kosova, “UNMIK exercises all the classical powers of a state, as a kind of substitute to the state”[13].

Following the Second World War, the UN emerged as the world’s supra-national organization of a universal character, with the main aim of peacekeeping and maintaining world stability.[14] Only, in the last decade of the last century, more than seventy wars occurred in sixty locations and involved more than one-third of all member-states of the United Nations; half of the current wars have been carrying on for more than a decade, and a quarter of them for more than two decades [15]. Since the Cold War, the ideological paradigm used to consider international conflicts has been increasingly less salient in explaining the nature of contemporary wars, and ethnic conflict has replaced ideological rivalries. [16] The vast majority of armed conflicts still take place in the developing world, but also in post-communist countries such as in the former SFRY and in the former Soviet Union, and in almost all cases these conflicts are intra-national in scope. [17] These conflicts were characterized by their being fought between groups who come from within the boundaries of a defined state. These internal conflicts became internationalized, contributing to regional instability[18].

From the role as the observer of such disturbing events to world peace, latterly as civilian police, [19] the United Nations, as well as NATO, by the end of 20 century, had begun to become more involved in a more active peacekeeping role in conflict regions.[20] And finally, in the beginning of the 21st Century there were some new types of international governance; such were the missions in Afghanistan, (2001), and particularly so in Iraq, (2003).[21]In recent years, UN peace keeping has developed beyond its traditional bounds; in a number of cases, it assumed executive tasks by exercising temporary governmental authority in territories requiring international assistance.

Since the 1990s, the UN has been faced with some new phenomena, such as: the situation of a “failed state”, (as it was with Cambodia before the establishment of UNTAC), the situation of a “dissolute state” (as was the case in the former SFRY before the establishment of UNPROFOR), or the situation of “state collapse”, (as was the case in Somalia before the establishment of UNOSOM).[22]

Under UNOSOM II, the UN operated on the presumption that there was no sovereign authority in Somalia, but some authors described that that was indeed the situation[23]. Just so was the case of UNMIK, where the UN mission was established on the same presumption that there was no sovereign authority in Kosova. However, Kosova was also the case where the UN administration was established following the use of international military force. And it was not a new phenomena in international law. The use of military forces under international auspices began after the Second World War in 1946, and from then until 2000, the UN and NATO were involved in thirty-two conflicts of which twenty-three were intra-state conflicts.[24] Since the first UN peacekeeping mission, in the period 1948 to 2001 there were 56 missions. During the first 50 years of UN peacekeeping (1948 to 1998), there were 49 operations. 13 of these took place during the first 40 years of United Nations peacekeeping, while 36 new operations have been launched since 1988 - and 7 new UN peacekeeping missions were inaugurated during the period 1998-2001.[25]Peacekeeping operations became the fastest growing activity of the UN and, as some research shows us, “peacekeeping has been the biggest, most rapidly expanding part of UN budget”.[26] But, UN peacekeeping should not be confused with other forms of multinational military intervention, including “enforcement” actions. On several occasions, the Security Council has authorized member states to use “all necessary means”- including force to deal with armed conflict or threats to peace [27].

In literature on International Law there are many classifications of UN peacekeeping missions, but we will present here just some of the most basic models. From a historical perspective on UN peacekeeping operations, one must make a clear distinction between three basic types of peacekeeping:

• Classical peacekeeping, or peacekeeping of the first generation, (1945-1980s), which was a consensual form of crisis management, where the role of the UN was restricted to interposing its forces between two parties, (or as a mediator under Chapter VI of the UN Charter), that had decided to terminate hostilities and that had agreed on an international presence to maintain peace [28].
• The second generation of peacekeeping, (since the late 1980s) where UN operations were not so much with a consensual background of the conflict parties, but more of a mechanism based under Chapter VII, and similar to the mechanism established under Chapters XII and XIII [29].
• The new fashion of peacekeeping missions, (1999-2003), led not just by the UN but also by NATO, a military alliance, the EU or any of the latter together with the UN [30].

Other authors, (Helman and Ratner) made a classification of UN involvement on the basis of the content of the UN mission, in three other different models:

-         The first, where the UN has the role of a governance assistance, (such as were the cases with Namibia and Libya);

-         The second, where there was provisional delegation of some aspects of governmental powers to the UN, (such as was the case with Cambodia);

-         The third, a temporary but complete assumption of governmental functions by the UN, (such as were the cases with Kosova and East Timor).[31]

There are also five categories in the classification of UN peacekeeping, which include:

-         Monitoring and observation

-         Traditional peacekeeping

- Peacekeeping combined with state building

-         Force to ensure compliance with international mandates and

-         Enforcement.[32]

Based on this classification, from 1946-2000 there were 18 UN Monitoring and Observation, 7 traditional peacekeeping and 26 peacekeeping combined with state building missions; 12 were missions that were categorized as ‘force to ensure compliance with international mandate’, of which only four were under UN command, and eight were NATO operations; and there were just two enforcement mission during this period: in Korea, (1950-53) and in Kuwait, (1990-91), when the UN Security Council authorized member states “to use all necessary means to restore international peace and security”.[33] The mission in Afghanistan in 2001, and the most recent one in Iraq in 2003 are different from these classifications, and may represent new models of international involvement in post-conflict situations.

On which legal basis did the UN send military troops under peacekeeping missions? The legal basis for an active role of the UN in peacekeeping operations should be analysed in Chapter VI, (“Pacific Settlement of Disputes”), and Chapter VII, (“Action with respect to threats to peace, breaches of peace and acts of aggression”), referring to art. 99 of the UN Charter, according to which the Secretary General “may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”,[34] respectively, in the authorizations given by the Secretary General from the UN Security Council for the need for peacekeeping and world security. According to the opinions of the some authors, peacekeeping missions “fall somewhere between the peaceful settlement mechanisms (Chapter VI) and the enforcement actions, (Chapter VII), or as they were described by the UN Secretary General Dag Hammarskjold “Chapter Six-and-a-Half”.[35]The legal grounds for authorizing military action have included Chapters VI and VII of the UN Charter, but some authors mentioned also, “the necessity of preventing genocide and violations of humanitarian law”.[36]

This role and this authorization from the UN Charter seems to have been initially resolved and set in a more active UN role, by the former UN Secretary General Dag Hammarskjold. It was his merit and contribution that the concept of Early Warning was practically built upon a concept of UN presence in peacekeeping in the world.[37]He opened up the way for the later creation of the concept of “preventive diplomacy” in the first action of the settling of the crisis in Congo.

A special contribution to the system of UN peacekeeping was given by the concept of preventive diplomacy. It was a doctrine presented by the former UNSG Ghali, and which was contained in the so-called: “Agenda for Peace”[38]. As a global framework for peacekeeping and world stability, it was introduced in his report at the first summit of the Security Council of the UN [39]. This concept of Ghali can be also seen as a new system of collective security following the one that existed in the world during the period of the “cold war”[40]. As Ghali himself defines, this diplomatic notion, “Preventive Diplomacy”, infers, “the action of preventing contradiction between parties before the escalation in a conflict aiming to limit their later expansion”[41].

But it was clear that this concept of “preventive diplomacy” failed in its first test: the war in the former SFRY. The UN could not prevent the war in the former Yugoslavia, except perhaps only in the case of FYROM, (UNPREDEP). There were so many UN documents adopted related to this war, but so little resulted to prevent the wars. A particularly superficial analysis of UN documents from the beginning of the war in the former Yugoslavia will serve as a guide to a possible classification of all UN documents regarding the crisis there in two main categories: political documents[42], and international-military and peace-keeping documents[43]. It seems as though the resolutions of the Security Council were a high priority because practically they preceded the “political” decision-taking of the General Assembly, for example, in the acceptance of UN members: Slovenia, Croatia, Bosnia and Herzegovina and, finally, the Former Yugoslav Republic of Macedonia[44]; or those referring to the international-legal discontinuity of the state in its dissolution[45], which denied the automatic right of the “FRY” to be the legal-international heir of the former SFRY.

Regarding all of these UNSC resolutions, concerning the war in former Yugoslavia, we could reach four main sub-conclusions:

• Firstly, in both the political and international-legal plans, the UN has internationally recognized the discontinuity of two “Yugoslavias”, the second (of “AVNOJ”) together with the third (of “Zablak”), guiding the new state creation of Serbia and Montenegro to a regular procedure for the international recognition of new states. Indeed, this approach of the UN, dating from 1992, was realized ten years later in 2002 with the dissolution of the last Zablak’s Yugoslavia, (FRY), last year and the creation of the union of Serbia and Montenegro. [46]
• Secondly, at the same time, in this field, the UN recognized the independent, sovereign states of four other former Yugoslav republics: Slovenia, Croatia. Bosnia and Herzegovina and FYROM, as new UN members.
• Thirdly, within the plan of international sanctioning, the UN showed its clear aim of punishing two states (Serbia and Montenegro) for politics of aggression and for the violent change of the state boundaries, by the resolution that applies economic, cultural and communicative sanctions against Serbia and Montenegro [47], and the resolution for establishing the international tribunal for war crimes in the former Yugoslavia[48].

 

As a conclusion of this part, if we were to categorize all peacekeeping missions of the UN, or those combined with NATO, they would fall into 9 distinct main groups:

• “Classical”, or “Traditional Peacekeeping” Missions, or the missions of “the first generation” of the 1950s-1970s, with a mandate to establish peace between two states in conflict, respectively establishing the “blue helmets” between them, as a line of demarcation.[49]
• “Peacekeeping” Missions of the New Generation, from the 1990s, with the mandate to recover the lost sovereignty of a state or recovering the parts of lost territories.[50]
• Missions for re-establishing the “Failed State”, respectively the recreation and re-functioning of the state power after civil wars and rules of totalitarian regimes.[51]
• Preventive missions, aimed at the prevention of armed conflicts and the prevention of wider regional destabilization.[52]
• UN Peacekeeping and NATO Peace enforcement missions with international military intervention.[53]
• Peacekeeping missions, with or without a peace accord, the ones that came mainly

after the signing of a peace accord and guaranteeing the missions afterwards,[54]but also those without a peace agreement.[55]

7. Peacekeeping missions following humanitarian international interventions, which had a key mandate to build up democratic self-governing institutions,[56] and others with

the mandate to prepare the population of this post-conflict territory for

its independency.[57]

8. Missions combating global terrorism.[58]

9. Combined post-war international military and civil missions. [59]

II. United Nations Mission Interim in Kosova, (UNMIK): 1999- 2003

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II.1. The legal nature of UNMIK

In the theory of international law, there is no unique qualification on UNMIK. As we can see in following theoretical argumentation on the nature of UNMIK, there were more approaches explaining UNMIK. But, we could say that the Kosova case under UN administration is asui generis model of international governance with a post-conflict society, which could not be explained by similar, previous types of international protectorates.

By UNSC Resolution 1244/1999, the UN established an international presence in Kosova: the United Nations Mission Interim in Kosova, (UNMIK) which was considered as “a unique experiment”[60]. As Stahn wrote, UNMIK promoted a “new dimension”, (together with the case of Bosnia and Herzegovina), whereby using the powers under Chapter VII of UN Charter, the UN created a new model of international governance[61]. It was one of “the largest and most challenging missions of the United Nations in the field of territorial administration”[62]. This UN mission was established, based on UNSCR 1244/1999. If we analyze contextually UNSC Resolution 1244, we could say that this resolution was a compromise between five permanent members of the UN, at a very complicated moment in time. The text of the resolution was drafted by the G-8, when NATO’s intervention was approaching its end, however without any answers concerning what to do next, in case Belgrade accepted the preconditions for ending the air strikes. After long and difficult negotiations between the former president of Yugoslavia, Milosevic, and the special envoys of the International Community, Ahtisaari and Chernomyrdin, by a combined approach: “Diplomacy backed by Force”, the former Yugoslav president in the end accepted the G-8 Plan for Kosova[63]. According to this plan, in the beginning of June, the text of UNSC Resolution 1244/1999 was drafted. For these reasons, when analyzing the complete text of UNSC Resolution 1244, we have to do so from the perspective of 10 June, or in the ‘time’-context when NATO’s intervention had ended; the Yugoslav army and police forces were still in Kosova, and more than 90% of the Albanian population of Kosova was outside of the area, as refugees.

Another important element towards a contextual analysis of this resolution was the very short time available for drafting it, and the extreme urgency in legalizing, even post festum,NATO’s intervention by a UNSC Resolution. It was the situation between the withdrawal of Yugoslav troops from Kosova, and the arrival of NATO troops, and the need for the establishment of a UN civil presence in Kosova. It seemed that the authors of this resolution were under great time pressure, because they had to write a text that would include retroactive legitimization of NATO’s intervention, the factual discontinuity of the Yugoslav sovereignty in Kosova, (although, formally, it still existed on paper) and the inauguration of the largest UN peacekeeping mission there.

So today, we would not be able to analyze UNSC Resolution 1244 without this contextual approach, initially from the time perspective when the resolution was drafted. Four years after its approval at the UN Security Council, so many things had happened, and new realities were created in and around Kosova, so it is time to think about its being replaced by a new UNSC Resolution that will deal now with the question of the final status of Kosova.

But how was UNSCR 1244/1999 approved, and what was the climate like in the Security Council in June 1999? Perhaps so many contradictions and so much confusion concerning this resolution came from this political voice in the Security Council that was not so unique but rather one of compromise, regarding the issue of a UN mandate in Kosova, and also regarding the question of the structure and the competences of a new mission - UNMIK.

As we can see, UNSCR 1244/1999 gave UNMIK the mandate to prepare Kosova’s population for self-government, to create the preconditions for negotiating solutions. As already mentioned, after four years of its adoption it seems that UNSC Resolution 1244/1999 has been already overtaken by new developments and new realities created in Kosova after the war. So, there are huge contradictions between the text of the UNSC Resolution 1244/1999 and present reality that has been created during these last four years.

The next important questions are: What is UNMIK, according to the UNSC Resolution 1244/1999? Has the UN in Kosova inaugurated a new form of an international protectorate? The answer to this question seems to be a negative one, because the term “protectorate” could not apply to UNMIK’s practice. But, some research labeled it as “an international protectorate created by UNSCR 1244/1999”.[64]

Whereas a definition of an international protectorate as “a legal relationship between a protector state and a protected state, whereby the latter gives up all or part of its control over foreign affairs while retaining a large measure of independence”[65], this formula could not be applied in the case of Kosova because of the crucial reason that Kosova is not, and never was, an independent and a sovereign state that was recognized internationally, and an “international protectorate is restricted to state-state relations, only”[66].

For the first time in its history, the UN applied a special model of international territorial administration, using a unique model[67], with a new international territorial administration, headed by international administrators, as a final authority to exercise governmental functions, including the adoption of legal acts with direct and immediate effect on the local population[68]. As stated in the first report of the UN Secretary General, the concept of UNMIK “is a novel one”[69]. Similar to the case of Somalia, (UNOSOM II), UNMIK is also an international territorial administration, in a territory where there was no sovereign authority, whereas the UN mission acted as a final and an unlimited authority[70]. The nature of this authority is of an international character. Compared to the case of Bosnia and Herzegovina, in Kosova the Special Representative of the SG acted directly as a body of the UN, and his decisions are attributed to the UN organization as a whole; in Bosnia, the High Representative derives his authority from several sources: partly from the parties to the DPA, partly from PIC, and partly from the UNSC. Both types of the international governance seem to reflect different models of administration[71].

Also, UNMIK itself has served as a precedent in the history of UN peacekeeping operations, because for the first time “four international organizations and agencies will be working together in one operation under one leadership: the leadership of the UN”[72].

But stated above, in the theory of international law there is no unique approach and qualification of the nature of UNMIK. Although the majority of them considered UNMIK as a new form of UN peacekeeping mission, which differed from the classical type[73], some scholars considered UNMIK as a ”trustee occupant”[74]. Other authors[75] qualified “UNMIK as a substitution of the state”[76], and some even labeled it as a form of “new trusteeship”.[77]

This new fashion of international territorial administration in Kosova, which has been applied in the name of UNMIK since 1999, as Stahn qualifies it, was demonstrated by “the more extensive authority of UNMIK than by any previous UN peacekeeping mission, and even more powers than the HR in B-H”. Lagrange qualifies it as a “direct international administration”[78]. Moreover, UNMIK with this model of international administration, with the SRSG as “the highest and ultimate legislative, executive and judiciary authority”, has been an inspiration to the next mission: UNTAET, in East Timor, although with different political goals, these being facilitating the territory of East Timor for the transition to independence.[79]

UNSC Resolution 1244/1999 authorized two entities to exercise public authority in Kosova: UNMIK, as an international civil presence, with the mandate to establish an interim administration; and KFOR, the international security presence, to carry out military tasks, but both of them under the UN auspices, which are bound to comply with international human rights standards, such as the guarantees contained in the ECHR and ICCPR[80].

As detailed in the “Preliminary Concept of UNMIK”, Kosova is temporarily administered by the UN, and sub-administered by the EU, the OSCE and the UNHCR, and protected by NATO. Both the military and the civilian presence operate in a mutually supportive manner towards the same goals.[81]. This mission is also being supported by various international organizations and institutions[82].

The Special Representative of the UN Secretary General is the highest authority, appointed by the UNSG, or as an author labels him, “the governor of Kosova”[83]. He is assisted by four deputy Special Representatives, one each from four different international organizations which in the beginning created the four pillars of UNMIK: the UN, with responsibilities to establish the interim civil administration; the UNHCR, on humanitarian affairs; the OSCE, for building institutions, and the European Union, for reconstruction. Altogether, they created the Executive Committee of UNMIK under the leadership of the United Nations.[84] Based on what has been said, we could say that in a way, UNMIK is a form that differs from the contemporary model of international administration towards a more international governance with Kosova’s society.

II.2. The UNMIK’ s Specifics

By Resolution 1244/1999 of the UN Security Council, a UN Civil Administration Mission was inaugurated in Kosova, one that was unique and most ambitious[85]. UNMIK, as a kind of UN mission has a unique role[86], one which had never before been seen in the previous activities of the UN, and particularly not witnessed in its peacekeeping missions[87].

This mission was established after the international military intervention against FRY, due to humanitarian reasons. Some authors even called it “the new military humanism”[88]. Although in theory there were opinions that this intervention was “not legal under international law”[89], as we saw in the previous chapter, the majority of authors agreed that it was a legitimate intervention[90]. Between these two main conceptions, Ansola produced a new central-opinion on ”retroactive legalization” of the intervention in the case of Kosova, by UNSC Resolution 1244/1999, which retroactively legalized this intervention[91]. Even so, the UN Charter allows for international intervention against a sovereign state in situations “in which the Security Council is justified in directing a permanent change in some aspect of the status, boundaries, political structure, or legal system of the territory within a state, if the Council should determine that doing so is necessary to restore and maintain international peace and security”[92]. Some authors[93] in this article see the legal provision for the UN to undertake enforcement measures under Chapter VII of the UN Charter. This was precisely so in the case of Kosova in the spring of 1999, when the Yugoslav army and the Serbian police threatened international peace and security by their military operations in Kosova.

In conclusion, on this particularly special UN mission, we could say that the mission in Kosova was the first of the kind whereby the UN had taken on the task of governing a society.[94] Therefore, the case of Kosova under UNMIK, if not only for itself and for its people, is as important for international relations in general as it is for international law because it involves three new legal phenomena, which will have an impact on the rewriting of existing international law, especially regarding de-legitimization of the violent sovereignty of a state and, in its place, selected human sovereignty and denationalization of law and the improvement of a legal supranational through the imposition of international standards of Human Rights and of democratic governance. Maybe the case of Kosova could represent a contribution towards the new liberal doctrine for “re-conceptualization of international law”,[95] by which “the transnational legal process thereby spurs internal acceptance of international human rights’ principles”.[96]

III. The Structure of UNMIK

What is UNMIK? What is its structure and what was UNMIK’s general strategy? What were the main aims and objectives of the international community and especially of the UN with the inauguration of this mission? What goal had to be achieved in a post-conflict society such as Kosova?

Maybe a short answer to these questions could be the statement of the UNSG Kofi Annan, immediately after the establishment of UNMIK: “the task before the international community is to help the people in Kosovo to rebuild their lives and heal the wounds of conflict”. [97]

United Nations Mission Interim in Kosova (UNMIK) was established according to UNSC Resolution 1244/1999. The Resolution provides the legal foundations of the UN presence in Kosova[98]. Based on this resolution UNMIK had five main objectives:

1.The demilitarization of Kosova, (a process lead by NATO-KFOR, which was achieved with the withdrawal of the Yugoslav army and police from Kosova in June 1999; and with the transformation of UÇK to KPC in September 1999).

2. The return of refugees in Kosova, (a process led by the UNHCR, which was achieved in a very short time, the shortest in the history of UNHCR, because immediately after the war around 650,000 refugees returned)[99].

3. The reconstruction of Kosova, (a process led by the EU, in the beginning by TAFKO and then by the EAR), which began immediately, not just by the internationals but also by the Kosovars. In this process, the European Union was the key factor for the implementation of the reconstruction of post-war Kosova [100]

4. The building of a Civil Administration, (a process led by the UN and which created the elementary administrative infrastructure in post-war Kosova)

5. The democratization of the society in Kosova (a process lead by the OSCE, that focused on the building process of democratic institutions, elections and the creation of an independent judiciary and free media)[101].

According to these five main objectives of UNMIK, this UN mission had the following components:

-Military Protection

-Civil Administration

-The Rule of Law

-Human Rights

-Reconstruction

-Repatriation

-Election

-Democratic Self-Government and Institution Building[102]

Based on this strategic concept of UNMIK, its main tasks were: the transfer of the responsibilities of UNMIK to the Provisional Institutions of Self-Government; the promotion of economic prosperity through the development of a market economy; support towards the reconstruction of key infrastructure; the maintaining of civil law and order, and promoting the respect for the rule of law; promoting human rights; protection of the rights of all communities; facilitating the safe return of refugees and displaced persons; maintaining the integrity of UNSCR 1244/1999, and the creation of a safe ambient for the participation of all communities in the establishment of democratic institutions of self-government.

To fulfill these very ambitious tasks, the whole mission was based on four pillars. In the beginning, (1999-2001), the composition of UNMIK was as follows: Pillar I - UNHCR; Pillar II - OSCE; Pillar III - UNHCR and Pillar IV - EU. But after June 2001, UNMIK remodeled itself in a new structure, whereby, instead of the UNHCR there was a new Pillar created concerned with issues on policy and justice, as Pillar I. The structure is as follows: Pillar I - Police and Justice (covered by the UN); Pillar II - Civil Administration (the UN); Pillar III - Democratization and Institution-Building (the OSCE); and Pillar IV - Economic Development (the EU)[103].

As mentioned earlier, three Resolutions of the Security Council that were approved during 1998, as well as Resolution 1244 (1999), used Chapter VII of the UN Charter as a legal base, and which gave the United Nations legitimacy so they could undertake measures for peacekeeping and collective security. The main aims of the UNSC Resolution 1244/1999 were the ending the war and maintaining peace, a transitional administration of a post-conflict society, and the creation of a substantial self-government till the final solution for Kosova. Nevertheless, as mentioned above, this Resolution did not apply the system of international trusteeship defined by Chapter XIII of the UN Charter, and as a result, it did not apply the principle of self-determination that had been applied by the UN in other cases of its involvement during the 1950s and 1960s. Instead of self-determination, the general political orientation of this resolution was self-government, and, as an alternative to a classic system of trusteeship, a moderate UN protectorate was established as an international civil-military administration.

IV. The Characteristics of UNMIK

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UNMIK is probably a mission that has been predicted in the history of the United Nations. In fact, UNMIK is a sui generis transitional post-conflict administration, which has the following distinctive characteristics:

1.UNMIK is a special kind of a UN peacekeeping mission, which fused the elements of the international security presence (NATO-KFOR), with elements of civil administration, the dimension of reconstruction, building democratic institutions as well as humanitarian issues, (UN, EU, OSCE and UNHCR), “under one leadership, for the same goals, and with a clear chain of command”[104].

2.UNMIK is a United Nations post-conflict mission.

3.UNMIK is a mission of the establishment of an interim and transitional administration[105].

4.UNMIK is a transition mission which should prepare the conditions for the start of a gradual transfer of competences from the ‘internationals’ to the ‘locals’, respectively preparation for the substitution of the “etatique” legitimacy, provided by the Security Council, with a democratic legitimacy, with free elections in Kosova[106].

5.UNMIK is a mission which should have realized three transitional processes: the first, the substitution of the last Serb administration during their occupation of Kosova with a new civil international administration; the second, the elections process in the local and central level whereby a gradual transfer of decision-making competences from this civil international administration to the local self-government administration would be achieved; and the third, the process of the final status solution for Kosova once local legitimate and democratic decision making institutions had been established[107].

6.But although UNMIK was designed as a unique civil administration throughout Kosova, this main goal of this UN mission was unfortunately only partially achieved. UNMIK did not establish the whole legislative, executive and judiciary authority throughout the territory of Kosova. After almost three years of UN presence, there are still parallel structures functioning in Kosova, in Serb enclaves, although UNMIK officials denied that was the case. In the region of north Mitrovica, Serbs still apply former Serbian and Yugoslav laws, the Yugoslav court system still functions there alongside the parallel Serbian university and, in some parts of Kosova, some municipal administrative branches have issued “official” documents of the Republic of Serbia.[108]

Being one of the largest peacekeeping missions in the history of the UN[109], UNMIK is also a complex one. In the four-year period following its establishment[110], there were five Special Representatives of the UN Secretary General[111].

Therefore, without going into other financial or political dimensions of this civil international administration, we shall focus only on those of legal nature.

If we return to the background of Resolution 1244, it seems that the framework of this resolution was the Rambouillet concept of the creation of “a substantial autonomy for Kosova”. However, the negotiation sessions, at Rambouillet, Paris, in February-March 1999, did not solve the issue of Kosova, they only opened up the processes for its solution. With the approval of Resolution 1244, decision-taking paths under international administration were opened up for Kosova.[112].

But what was the strategic plan of UNMIK? The answer to this question is contained in the first report on UNMIK, from the UN Secretary General to the UN Security Council.[113]According to this “general strategy”, the work of UNMIK will be conducted in five “integrated phases”.

I.                    The first: the establishment and consolidation of UNMIK’ s authority the and creation of UNMIK-managed administrative structures;

II.                 The second: the administration of social services and utilities and consolidation of the rule of law;

III.               The third: the finalization of preparations and the conduct of elections;

IV.              The fourth: assisting elected Kosova representatives in establishing provisional institutions for democratic and autonomous self-government, and

V.                 The fifth, final, phase that would depend on a final settlement and the dispositions made therein, whereby, according to paragraph 11(f) of UNSC Resolution 1244/1999, “UNMIK would oversee the transfer of authority from Kosova’s provisional institutions to the institutions established under a political settlement”[114].

V. The Authority of UNMIK/SRSG

One of the most recent questions in the theory of international law is the question of the legitimacy and accountability of international regimes. [115] “Legitimacy and accountability may have to be established at various stages of an operation, depending on its complexity and novelty”,[116] and there are questions: “Is the international decision-making body the appropriate one to call for a particular action? Or, “To what degree is a UN peacekeeping mission in the world, legitimate and accountable, and to whom: to the UNSC, or to local population? Which are the bases for a legitimate and accountable UN mission?

There are no unique answers to these questions, because of the different models of UN peacekeeping operations. So, “different uses of military forces raise issues of accountability in different ways”,[117] but according to the “mixed system”, the democratric accountability of the international use of force, as well as of the international administration, has two bases: international authorization and national authorization to use military forces.[118] Since in previous chapters we have already discussed the question of NATO’s intervention in Kosova, here we will concentrate solely on the legitimacy and accountability of UNMIK. What were its legitimacy and accountability?

The problem of the legitimacy of international missions is the one of the most significant issues, as well as the precondition for its successful performance. There are many questions related to UNMIK’s legitimacy. What is the legal source of UNMIK’s legitimacy? What kind of a relationship was established by UNSCR 1244/1999 among UNMIK, the SRSG and the local population? Is the SRSG, as the highest governing body in post-war Kosova, accountable and what kind of a legal remedy do the Kosovars have against his decision? Compared with the system of UN trusteeship, is UNMIK less democratic? Finally, is there any form of democracy within UNMIK, or did UNMIK install a internationally controlled democracy in Kosova?

To answer such questions related to the relationship between UNMIK and Kosova’s society, we could say that based on UNSCR 1244/1999 and on the legally established primary regulations pertaining to UNMIK[119], as well as on the Constitutional Framework[120], UNMIK exercises a primary governing authority in post-war Kosova.

The SRSG is the most supreme, and the final decision-making authority of UNMIK, and this is not a matter to contest. The SRSG gains this supreme authority from Chapter VII of the UN Charter, from UNSCR 1244/1999 and UNMIK Regulation 1999/1, and from UNMIK Regulation 2001/9. He has, at his own disposal, the right to veto any decision taken by UNMIK or by the interim decision-making institutions. Practically, he used this right to veto, for the first time, when abolishing the “Resolution on Territorial Integrity of Kosova”, of Kosova’s Assembly[121]. And on a second occasion when the SRSG abrogated the “Memorandum of Understanding” between the Ministry of Economy and Finance of Kosova and the Ministry of Economy of Albania[122].

This means that the SRSG, even after the approval of the constitutional framework and even after the establishment of local bodies at local and central levels, remains the supreme decision-making institution, with the right not only to abolish any law approved by the Assembly of Kosova, and any decision of Kosova’s Assembly, but also with the rights to dissolve the Assembly of Kosova itself, in case it does not act in conformity with the UNSCR 1244/1999[123].

Thus, the SRSG remains the supreme legislative, executive, administrative and judicial authority in Kosova, after the local elections and particularly after the parliamentary elections, whereas a situation of a conflict-collision is created between the two legitimacies for governing Kosova:

-        Etatique legitimacy, that of the SRSG which arises from Chapter VII of the UN Charter and UNSCR 1244 as well as from the constitutional framework;

-        Democratic legitimacy of the Provisional Self-Government Institutions, which arises from the free elections, held on 17 November 2001, as a result of the constitutional framework.

So we could conclude that in the case of the post-war Kosova internationally governed by UNMIK, a special model of governance was created: a model of asymmetric co- governance between two different types of authorities, based on different types of legitimacies: one international with powerful competences; and one local with less powerful inerrancies. Just as in the case of post-Dayton’ s Bosnia and Herzegovina, as well as post-war East Timor, in post-war Kosova was inaugurated a special kind of democracy: internationally controlled democracy.

Summary

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• UNMIK is a special model of international governance with post conflict society, established after the first international humanitarian intervention of NATO on an internationally un-defined territory.
• Based on UNSCR 1244/1999, the UN in post-war Kosova inaugurated a model of internationally controlled self- governance, with no clear political objective regarding the final status.
• UNMIK created a new model of governance: asymmetric co- governance, between two different levels of authorities, and a special model of democracy: internationally controlled democracy with two different political legitimacies.
• After the first parliamentarian elections in 2001 and the establishment of the President, Assembly and the Government of Kosova, the Special Representative of the Secretary General still remains the highest legislative, executive and judicial authority with supreme decision-making powers in these fields in relation to the Provisional Self-Government Institutions of Kosova.

Endnotes

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[1] Since the second half of 1999 until the first part of 2003, 67 studies and analyses from different authors were published about NATO’ s intervention in Kosova and on UNMIK; (Based on the results of my research at the Law School of the University of Southern California, USC Los Angeles, Spring Semester 2003, within Senior Fulbright Fellowship: “International Governance with post- conflict societies; the case of UNMIK”).

[2] In the survey I conducted with the students of the School of Law, School of Political Science and School for International Relations at the University of Southern California, Los Angeles, on the topic of UNMIK and the final status of Kosova, during Spring Semester 2003, (16 April- 1 May 2003), the results show that American students have a solid knowledge on UNMIK and the problem of final status of Kosova. The questionnaire part of the survey contained12 questions; the answers of the students were as following: What is Kosova? A part of Europe, (18,93%); An entity within UN administration, (21,80%), A Country in the Ballkan, (59,17%); What is UNMIK? A UN Agency, (17,75%), A UN Consultative Body for Ballkan, (15,79%), A UN Interim Administration in Kosova, (77,56%); When was UNMIK established? In 1998, by UN General Assembly Resolution, (40,66%), In 1999, by UN Security Council Resolution, (46,97%), In 2000 by Decision of UN Secretary General, (13,47%); What is the nature of UNMIK? A UN peacekeeping mission, (30,12%), A form of international administration with the post-conflict territory, (75,06%), A form of international governance with a whole society, (5,82%), A substitute of state, (0%); What kind of governance exists in Kosova? International governance, (16,38%), Co-governance between UNMIK and Provisional Self-Government Institution of Kosova, (73,67%), Domestic Governance by Kosova Authorities, (10,05%); What is the highest legal act in Kosova? UN SC Resolution 1244/99, (32,06%), Constitutional Framework for Self-Governance in Kosova, (43,40%), UNMIK’ s Regulation, (11,96%) The Law of Kosova Assembly, (12,78%); What is the legal nature of the Constitutional Framework of Kosova? An International Legal Document, (14,81%), An Internal Constitutional act, (20,08%), A Mixture of International and Internal legal Act, (63,11%); What is the Special Representative of UN Secretary General, (SRSG)? The highest legislative, executive and judiciary authority in Kosova, (17,16%), The delegate of the power of UN Secretary General in Kosova, (56,33%), A UN official in Kosova, (26,51%); To whom is SRSG accountable? To nobody, (6,10%), To the UN Security Council and the UN Secretary General, (57, 62%), To the people of Kosova, (37,38%); What kind of legitimacy actually exists in Kosova? A democratic legitimacy of elected authorities of Kosova, (22,48%), A non-elected legitimacy of nominated SRSG, (55,80%) No legitimacy, (11,72%); How long should UNMIK stay in Kosova?,1-5 years, (35,52%),5 years, (36,09%), 5-10 years, (28,39%); What would be the final political status of Kosova? The independent state of Kosova, (84,97%), A Part of the Union of Serbia and Montenegro, (5,59%), A part of an Albania, (11,44%); (For further information see: “Euro-Atlantic Review”, Vol. II, no. 1/2003).

[3] Hans J. Morgenthau and Kenneth W. Thompson: “Politics Among Nations, The Struggle for Power and Peace”, (Sixth Edition, New York, 1985, p.481).

[4] Ibid, p.482-483

[5] Carsten Stahn: “International Territorial Administration in the Former Yugoslavia: Origins, Development and Challenges Ahead”, Heidelberg Journal of International Law, Stuttgart, 61/1/2000, p. 114

[6] Ralph Wilde: “From Danzing to East Timor and Beyond: The Role of International Territorial Administration”, American Journal of International Law”, Vol.95, No.3, July 2001, p. 586; See also: Zimmermann and Stahn, 2002, p.430

[7] Ibid

[8] Hans J. Morgenthau and Kenneth W. Thompson: “Politics Among Nations, The Struggle for Power and Peace”, Sixth Edition, New York 1985, p.501.

[9] Hans J. Morgenthau and Kenneth W. Thompson: “Politics Among Nations, The Struggle for Power and Peace”, Sixth Edition, New York, 1985, p.525- 541.

[10] See more about it: Blerim Reka: “EU Law”, (KIEAI, Pristina, 2000)

[11] Zimmerman and Stahn, 2002 pp. 432-433; See also UNSCR 1037(1996) of 15 January 1996

[12] Hurst Hannum: “Autonomy, Sovereignty and Self- Determination”, 1996, p.17

[13] Zimmermann and Stahn, 2002, p.429; Novicki, Ibid, and his qualification of UNMIK as “substitute of the state”.

[14] See about it: Dan Caldwell: “World Politics and You”, (Prentice Hall Inc, New Jersey 2000, p.284-311; “Democratic Accountability and the Use of Force in International Law”, Edited by Charlotte Ku and Harold K. Jacobson, Cambridge, 2003, pp.15-19.

[15] John Paul Lederach: “Building Peace, Sustainable Reconciliation in Divided Societies”, Washington DC, 1997, p. 4; For more updated development of international crisis and the wars, see: “Democratic Accountability and the Use of Force in International Law”, Edited by Charlotte Ku and Harold K. Jacobson, Cambridge, 2003)

[16] Ibid; See also Yahya Sadowski: “Ethnic Conflict”, “Foreign Policy”, Summer 1988, pp.12-23; and “Global Issues”01-02, Annual Edition, pp.150-155; Compare this practice after the cold war with the doctrine of Huntington’s “clash of civilization”; Samuel P. Huntington: “The Clash of Civilization and the Remaking of World Order”, Simon & Schuster UK Ltd, 1997.

[17] Ibid, Ledearch; Also as King stated that, since the end of World War II, there have been at least 90 conflicts regarded as civil wars, See: Charles King: “Ending Civil Wars”, (Adelphi Paper 308; International Institute for Strategic Studies, London, March 1997, p.15;Or as Keen wrote, during the period 1994-1998, there were 52 internal conflicts; see David Keen “Appendix”, “The Economic Functions of Violence in Civil Wars”, Adelphi Paper 320, International Institute for Strategic Studies, London, June 1998, pp.75-79; See also, John Chipman: “The Changing Shape of International Relations and Wars of the Future”, pages delivered to the IISS 40th Annual Conference, 1998, p.7); Also, as Ku and Jacobson show us, from 1946 to 2000 seventy-seven international authorizations were given for the use the force in a world crisis. Only nine of them were inter-state conflicts; see Ku and Jacobson, 2003, p.21).

[18] Ibid, Lederach, 1997 pp: 11-12; Caldwell, 2000 pp. 286-288; Ku and Jacobson, 2003 pp.21-22

[19] See: Annika S. Hansen: “From Congo to Kosovo: Civilian Police in Peace Operations”, (Adelphi Paper, Nr. 343/2002)

[20] See: Terrence Lyons & Ahmed I. Samatar: “Somalia; State Collapse, Multilateral Intervention and Strategies for Political Reconstruction”, (The Brooking Institute, Washington DC, 1995; Dan Caldwell: “World Politics and You”, (Prentice Hall Inc, New Jersey, 2000, p.292; “Democratic Accountability and the Use of Force in International Law”, Charlotte Ku and Harold K. Jacobson, Cambridge 2003, p.4.

 

[21] The last occasion, the mission in post- war Iraq, is still the subject of discussion within the theory of international law. It was established following the military intervention of the U.S. and the United Kingdom against the regime of Saddam Hussein during the period March-April 2003. This international American-British military presence since April 9, 2003, when the Hussein’s regime fell represented the highest authority in post-war Iraq. Thus, “civil employees must declare in writing they will obey the orders of the U.S. administration”. (“Iraqis Voice Fear of Signing Away Their Identity”, by Michael Slackman, (Los Angeles Times, June 18, 2003, p. A5). Later, UNSC Resolution 1483/2003 added to this international military governance of post-war Iraq a UN civil presence through the appointment of Sergio Viera de Mello as UN Special Representative in Iraq; toward the end of August, De Mello died in the terrorist attack on the UN Headquarters in Iraq. Following this tragic event, in September 2003 there was extensive discussion on the combination of this type of international governance by the allied military forces of U.S. and the UK with the UN, and the need for a new UNSC Resolution.

[22] Regarding Somalia’s problem and UNOSOM, see: Ibid, pp.1-3; Regarding the former SFRY and UNPROFOR, see more in the previous chapter: “Historical and Political Background of Kosova’ s Problem before the establishment of UNMIK”, and about UNTAC; (See more in further explanations on the Cambodia problem later in this chapter).

[23] Ibid Stahn, p.108; See also UNSC Resolution 814.

[24] Charlotte Ku and Harold K. Jacobson: “Introduction” in “Democratic Accountability and the Use of Force in International Law”, (Cambridge, 2003, p.21).

[25] “United Nations Peacekeeping: 1948-2001”, (DPI/2225-01-52018-10M0, New York, 2001; See also: “50 Years of UN Peacekeeping Operations”, pp:1-2, http://www.un.org/Depts/dpko/dpko/50web/2.htm)

[26] “US Foreign Policy and the United Nations System”, (UN Association of the USA, Columbia University, 1995, p.6.).

 

[27] Ibid

[28] Stahn, pg.120; see also M. Bothe: “Peacekeeping” in: B. Sima: “The Charter on UN”, 1994, p.572

[29] Ibid, Stahn

[30] UNMIK in Kosova, in 1999, by UNSCR 1244/99, combined with NATO intervention and KFOR presence; Mission in Afghanistan 2001; Mission in Post- War Iraq, 2003, by U.S and UK intervention and latter by combination with UN civil presence according to the UNSCR 1483/2003; or the peacekeeping mission of EU troops in Congo, in June 2003, authorized by UN Security Council.

[31] G.B. Helman-S.R. Ratner: “Saving Failed States”, “Foreign Policy” 89(1992-1993), p.3.

[32] Gareth Evans: “Cooperating for Peace: The Global Agenda for the 1990s and Beyond”, (St. Leonards, Allen & Unwin, 1993); Dan Caldwell: “World Politics and You”, (Prentice Hall Inc. 2000, pp.289-292; See also Charlotte Ku and Harold K. Jacobson: “Democratic Accountability and the Use of Force in International Law”, (Cambridge, 2003, p.21).

[33] Charlotte Ku and Harold K. Jacobson: “Introduction” in “Democratic Accountability and the Use of Force in International Law”, (Cambridge, 2003, p.21-25).

 

[34] The Charter of UN and The Statute of The International Court of Justice”, (UN, New York, ppi/511-40108, March, 1990): Art.33-38 and Art. 39-51; See further in: Belatchew Asrat: “Prohibition of Force under the UN Charter, 1991.

[35] Edwin M. Smith: “Collective Security, Peacekeeping and ad hoc multilaterisme”, in “Democratic Accountability and the Use of Force in International Law”, Edited by Charlotte Ku and Harold K.Jacobson, (Cambridge, 2003, p.89).

[36] Charlotte Ku and Harold K.Jacobson: “Conclusion; Toward a Mixed System”, in “Democraric Accountability and The Use of Force in International Law”, (Cambridge, 2003, p.354; Dan Caldwell: “World Politics and You”, (Prentice Hall Inc, New Jersey, 2000, pp.285-305).

[37] From 1946 to 2000, the UN authorized 77 uses of force under international auspices in 32 conflicts in the world, by which: 23 were intra-state, and just 9 inter-state conflicts. For further information, see “Democratic Accountability and The Use of Force in International Law”, Edited by Charlotte Ku and Harold K. Jacobson, (Cambridge, 2003, pp: 21-22).

[38] See more in: Boutros Boutros Ghali: “Agenda for Peace”, UN Documents, New York, January, 31, 1992; Also see: Dan Caldwell: “World Politics and You”, (Prentice Hall Inc, New Jersey, 2000, pp.289-290)

[39] The first of this kind, submitted to the UNSC, on January 31, 1992.

[40] Which blocking military bipolarity and balance: East-West

[41] Ibid.

[42] The Resolutions of the UN General Assembly

[43] The Resolutions of the UN Security Council

[44] See: Resolutions of the General Assembly: nr. 46/236, 46/237 and 46/238 of 22nd of May 1992 and 47/225 of 8th April 1993

[45] The Resolutions of the General Assembly: nr. 47/1 (of 22nd September 1992)

[46] See: “The Constitutional Charter of the State Union of Serbia and Montenegro”

[47] UNSCR no. 757/92

[48] UNSCR no. 827 /1993

[49] Such was the UN mission in Cyprus.

[50] For example, UNPROFOR in Bosnia and Herzegovina, or UNTAES in East Slavonia-Croatia.

[51] For example, the UNTAC mission in Cambodia, or to some extent the mission about to be established in Afghanistan, taking into consideration the tragic past of regimes such as the “Khmer Rouge”, in Cambodia, focused on the “Talibans” in Afghanistan.

[52] For example, the preventive mission of the UN in Macedonia: UNPREDEP, 1992.

 

[53] For example, the IFOR or SFOR missions in Bosnia and Herzegovina in 1995, or the KFOR mission in Kosova, 1999; See more in Dan Caldwell: ”World Politics and You”, (Prentice Hall Inc, New Jersey, 2000, pp.289-292).

[54] For example, following the Dayton Peace Agreement for Bosnia and Herzegovina, (1995).

[55] For example, the case of Kosova, whereas this mission was established without a peace accord between the Albanians and the Serbs, but only after a “Military-Technical Agreement” between NATO and FRY, 1999.

[56] For example, UNMIK in Kosova, according to the UNSCR 1244/1999.

[57] For example, UNTAET in East Timor, according to the UNSCR 1272/1999, a process that ended in May, 2002, when East Timor became a new independent state-member of the UN.

[58] For example, the mission in Afghanistan 2001, aimed at the implementation of politics of a global anti-terrorist alliance against the terrorist group of Al Qaeda and their supporters - the Taliban regime; See: UNSCR 1368(2001) and UNSCR 1373(2001); See further in: Bob Woodword: “Bush at War”, (New York, 2002); We have not included the most recent case of the use of international military force, in Iraq, 19 March 2003, in this classification, because it was not a UN peacekeeping mission. Of course there were 16 UNSC Resolutions on Iraq up until the last one, UNSCR 1441, but none of them applied to the regime of Saddam Hussein. For references to Iraq‘s problem from a UN approach, read more in: Michael Glennon: “Why the Security Council Failed”, in Foreign Affairs, May-June, 2003, Vol.82, No.3, pp.16-35; Adeed Dawisha & Karen Dawisha: “How to Build a Democratic Iraq”, in Foreign Affairs, May-June, 2003, Vol.82, No.3, pp.36-50); For more on the war in Iraq see also: United States Institute of Peace: “Focus on Iraq”, in: www.usip.org, updated on May 1, 2003; Council of Foreign Relations: “US-Iraq Relations”; “Iraq-US Diplomacy”; “America’s Rationale for War”; “The War’s First Days”; US Deployments at the Height of the War”; Phoebe Marr: “Iraq is not the Balkans”, etc. March-May, 2003; www.cfr.org.); also see The President’s speech on ending the war with Iraq, given whilst he was aboard the USS Abraham Lincoln, May 1, 2003, and related newspaper reports, (“Bush Hails Victory in Iraq”, Los Angeles Times, Friday, May 2, 2003, p.p. A1 and A10). President Bush said in this speech that the war in Iraq marked “a new era in waging war”).

[59] For example, the mission established in post- war Iraq, under UNSCR 1483/2003, approved on May 22, 2003, by which the international military authority of the U.S. and the UK will remain, but there will in addition be a special representative of the UN.

[60] Wolfgang Petrisch: “Forward” in: “Human Rights in Bosnia and Herzegovina after Dayton: From Theory to Practice”, edited by Prof. Dr. Wolfgang Benedek, Hague 1999, p.1

[61] Stahn, p.109

[62] Andreas Zimmermann and Carsten Stahn: “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo”, (in: Nordic Journal of International Law, 70/2001, p.424

[63] See “Agreement on the Principles to Move Towards a Resolution of the Kosovo Crisis”, presented to the Leadership of the Federal Republic of Yugoslavia by the former President of Finland, Marti Ahtisaari, (EU), and Victor Chernomyrdin, Special Representative of the President of the Russian Federation, June 3, 1999, UN Doc.S/1999/649

[64] United States Institute for Peace: “Special Report: Kosovo Decision Time”, No.100, February 2003, p.5.

[65] J. Crawford: “The Creation of States in International Law”, 1979, p.188

[66] A. Kamanda: “A Study of the Legal Status of Protectorates in Public International Law”, 1961, p.155; See also Zimmermann and Stahn, 2001, 425

[67] See: “UNMIK: A Unique Mission”, in :”What is UNMIK?, DPI-UNMIK, Pristina 2002; See also Petrich, 1999

[68] Ibid; FIDH: “Kosovo Justice Pour la Paix”, Rapport, no.292, Mai 2000, p.4)

[69] Report of UN Secretary General to UN Security Council on UNMIK, (S/1999/779, 12 July 1999, point 118, p.19

[70] UNSC Resolution 814/93 on UNOSOM II

[71] Stahn, p.112

[72] Report of UNSG to UNSC(S/1999/779) 12 July, 1999, point 118, p.19)

[73] See more about it: Charlotte Ku and Harold K. Jacobson: “Introduction”, ‘Democratic Accountability and the Use of Force in International Law”, edited by the same authors, Cambridge, 2003, pp.20-26) and compared with: Gareth Evans: Cooperating for Peace: The Global Agenda for the 1990s and Beyond, (St. Leonards, Allen & Unwin, 1993); Paul F. Diehl: “International Peacekeeping”, (The Johns Hopkins University Press, 1993); William J. Durch (ed.), “UN Peacekeeping, American Policy and Uncivil Wars of the 1990s, (New York, St. Martin’s Press, 1996)

[74] H.H. Perit and J.M. Scheib: “Rebuilding Kosovo- UNMIK as a Trustee Occupant”, (A paper delivered at the Southern European Business Conference” in Matheson M.J. “United Nations Governance of Post- Conflict Societies”, 93 The American Journal of International Law, 857)

[75] Antony Marek Novicki: “The Presentation before the Reporting Group for Democratic Stability (GREDS) of Council of Ministers of Council of Europe”, according to the Albanian version, published in “Koha Ditore”, 27 June 2002, p.10

[76] Ibid; Compare the position of UNMIK/SRSG in Kosova with OHR in Bosnia and Herzegovina; see more about it in: ESI: “Reshaping International Priorities in Bosnia and Herzegovina”, (Part Two, 30 March 2000).

[77] Robert Caplan: “A New Trusteeship”? The International Administration of War-torn territories”, (Adelphi Paper 341, February 2002; Martin Indyk: “Trusteeship for Palestine? (Foreign Affairs, May-June, 2003, Vol.82, No.3, p.54).

[78] Stahn, p.111; see also: E. Lagrange: “La mision intermaire des Nations Unies au Kosovo, nouvel essai d’ administration directe d’un territorie”, in AFDI, 1999, 335; T. Garcia: “La Mission d’administration intermaire des Nations Unies au Kosovo”, RGDIP 104(2000), 61

[79] See more about UNTAET in UNSC Resolution 1272/1999, (25 October 1999)

[80] Stahn, p.150

[81] Report of UN Secretary General to UN Security Council pursuant paragraph 10 of UNSC Resolution 1244/1999, (S/1999/672), p.2

[82] Such as: The Council of Europe, The World Bank and other specialised UN agencies, such as HABITAT, UNICEF, etc

[83] Petrisch, 1999

[84] Ibid, p.3; within the first pillar, interim civil administration, there were three main offices: The Police Commissioner’s Office, The Office for Civil Affairs and The Office of Judicial Affairs

[85] Frederic L. Kirgis: “Security Council Governance of Post Conflict Societies: A Plea for Good Faith and Informed Decision Making”, AJIL, Vol. 95, No.3, July 2001, p.583

[86] See more about it in, “The Presentation of the Ombudsperson of Kosova, Antony Marek Novicki, before the Reporting Group for the Democratic Stability, (GREDS) of the Council of the Ministers of the Council of Europe”, according to the Albanian version published in “Koha Ditore”, 27 June 2002, p.10)

[87] Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809, para.77

[88] See: Noam Chomsky: “The New Military Humanism: Lessons from Kosovo”, (Common Courage Press, 1999

[89] Zimmermann and Stahn, 2001, p.423; B. Simma: “NATO, the UN and the use of Force: Legal Aspects”, European Journal of International Law, Vol.10, (1999), p.1; Antonio Cassesse: “Ex iniuria ius non oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community”, European Journal of International Law, Vol.10, (1999), p.23; etc

[90] Compared are the views of Zimmermann, Stahn, Murphy, Kirgis, Ansola, Matheson and Goldstone on the legality and legitimacy of NATO’s intervention in Kosova in 1999

[91] Jose-Luis Herrero Ansola: “The United Nations in Kosovo: Finding the Path through the Maze”, (in: “Favorita Papers”, 04/2001 of Diplomatische Akademie, Wien, p.9

[92] The UN Charter, Article 2(7)

[93] Michael Matheson: “United Nations Governance of Post Conflict Societies”, 95 “American Journal of International Law”, 76 (2001

[94] ICK: “Kosovo Roadmap (II), Internal Benchmarks”, Balkans Report, no. 125, 1 March 2002, p.3

[95] William J. Aceves: “Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Ligitation”, (Harvard International Law Journal, Winter 2000, Volume 41, Number 1, p.138)

[96] Harold Hongju Koh: “How is International Human Rights Law Enforced”? 74 IND. L.J. 1397, 1414 (1999). I had the chance to discuss this approach of Professor Koh personally, during our participation in an open panel discussion related to Kosova’ s post-war judiciary, in Pristina, during the summer of 2000, where he gave a open speech as an Assistant Secretary of State, Bureau of Democracy, Human Rights and Labor).

[97] “The European Union Commitment to Kosovo”, Pristina, March 2001, p.15.

[98] Matthew Rusel, 2000, p.127

[99] Report of UN Secretary General to the UN Security Council on UNMIK, (S/1999/779), 12 July 1999, point.8. p.2

[100] During the period 1999-2001, The European Agency for Reconstruction (EU), which was established in February 2000 as the successor to EC TAFKO, set up in August 1999, managed many activities in different sectors, such as energy & public utilities, housing, civil administration, infrastracture, agriculture, enterprise and health. Spend totalled 682 million EURO; See: “The European Union Commitment to Kosovo”, Pristina March 2001, p.33; See also: “ECHO in Kosovo: 1998-2001”, EU- Pillar IV, Pristina, 2001, pp.2-4.

[101] See: OSCE Mission in Kosovo: “Democratization: Structure & Guidelines”, 14.08.2000, p.3

[102] See: Matthew Rusel, 2000, p. 128

[103] “What is UNMIK?” (UNMIK-DPI, Pristina, 2002)

[104] Report of UN Secretary General to UN Security Council pursuant to paragraph 10 of UNSC Resolution 1244/99, (S/1999/672, 12 June 1999; see: “Introduction” & “Overall Structure of the Mission”, p.1; also see: Report of UN Secretary General to UN Security Council on UNMIK, (S/1999/779) 12 July 1999; see points: 118- 121, pp.19-20

[105] Ibid, pp. 1-3

[106] Ibid, p.1; Ibid. points: 119- 126

[107] Ibid, p.1; Ibid. points: 17- 20, and 110- 116, pp.18- 19

[108] Not just in North Mitrovica, in Zubin Potok, Leposaviq, but also in Shterpce, Gracanica, but even in Dardana- ex Kamenica, the Serb parallel administrative structures issued civil documents, vehicle registrations, driver’s licenses, etc; see “Koha Ditore”, 19 March 2002, p.7; For a comparison of the achievements of UNMIK from 12 July 1999 to 2001, see the Reports of UN Secretary General to Security Council on UNMIK: (S/1999/672, 12 June 1999); (S/1999779, 12 July 1999); (S/1999/987, 16 September 1999 (S/1999/1250, 23 December 1999); (S/2000/1777, 3 March 2000); (S/2000/538, 6 June 2000); (S/2002/62, 15 January 2002)

[109] UNMIK was the largest UN mission, with around 5,.000 civil personnel staff, apart from 50,000 KFOR military troops, and had an annual budget of around 400 million US dollars per year.

[110] June 1999- June 2003

[111] The four SRs of the SG in Kosova were: Sergio de Mello, Bernard Kouchner, Hans Hakkerup, Michael Stainer and Harry Holker.

[112] Dr. Esat Stavileci: “UNSC Resolution 1244 with a special view on the constitutional framework”, “Kosova Law Review”, Vol. VI, no. 3, Autumn, 2001, p. 13; See more in: Esat Stavileci: “Kosova nën Administrimin Ndërkombëtar”, Gjakovë, 2000.

[113] Report of UN Secretary General to UN Security Council on UNMIK, (S/1999/779, 12 July 1999, p.18)

[114] Ibid, points: 113-116, pp: 18- 19

[115] See: “Democratic Accountability and the Use of Force in International Law”, Edited by Charlotte Ku and Harold K. Jacobson, (Cambridge, 2003); “United Nations Legal Order”, Vol.1 and 2, Edited by Oscar Schachter and Christopher C. Joyner, University Press Cambridge, 1995; “Humanitarian Intervention and the United Nations”, Edited by Richard B. Lillich, (University Press of Virginia, 1973).

[116] Ku and Jacobson, 2003, p.350

[117] Ibid

[118] Ibid, pp: 350-366.

[119]UNMIK Regulation 1999/1, 25 Jully 1999

[120] UNMIK Regulation 2001/9, 15 May 2002

[121] This resolution was adopted by Assembly of Kosova, in the meeting of 23 May 2002; The same reactions of SRSG were regarding the Assembly’ s Resolution of final status, and on the Resolution on the values of liberation War of Kosova, adopted in the session of the Kosova Assembly on 15 May 2003; See the Official Statement of SRSG Michael Steiner, presented by UNMIK Press Director Simon Heiselock, www.rtklive.com. Central News, 15 May 2003, at 19.30)

[122] This Memorandum was concluded in Pristina on 30 May 2002, but the SRSG, Michael Steiner, abrogated this agreement on 25 June 2002. See the letter from SRSG Steiner to the Prime Minister of Kosova, Bajram Rexhepi, 25 June 2002

[123] See the letters from SRSG Michael Steiner addressed to the President of Kosova Assembly, Nexhat Daci: The first one, dated 8 May 2002, in which he stated that “the Kosova Assembly could just discuss, but no decision could be taken on the issue of Mitrovica, or about the border problem between Kosova and Macedonia”, and the second letter of SRSG dated 22 May 2002; (“Zëri”, 8 May 2002, p. 1, and “Koha Ditore”, 8 May 2002, p.1). However, Kosova’ s Assembly, even after these two letters from the SRSG, adopted a “Resolution for the Territorial Integrity of Kosova”, in the meeting of 23 May 2002. Immediately after this resolution, the same day the SRSG issued an official statement by which this resolution was declared invalid. (See: “Zëri”, 24 May 2002, p.1; “Rilindja”, 24 May 2002, p.1; “Koha Ditore”, 24 May 2002, p.1).