East Timor and the Challenge of UN Transitional Administration

Introduction

During the 1990s, a number of UN missions assumed responsibility for transitional administration, whereby the Organisation attempted to (re)develop the institutions of government in war-torn societies by assuming some or all sovereign powers on a temporary basis. UN operations in Cambodia, Eastern Slavonia and Kosovo trace increasing levels of complexity for UN peacekeeping and mark a significant shift from the days when peacekeeping involved no more than interposing UN troops between two warring national armies.

The most comprehensive of these missions - the UN Transitional Administration in East Timor (UNTAET) - was deployed in October 1999 as a multidimensional peacekeeping operation fully responsible for the administration of the territory during its transition to independence. While UNTAET is consistent with the increasing multitude of sovereign powers exercised by UN peace operations in the 1990s, its scale and character make it unique among recent experiments in transitional administration and raise numerous concerns about the UN assuming such a level of political authority: does what has been termed 'benevolent autocracy' provide a credible foundation for sustainable national government? to whom are transitional administrations accountable? and when and how should political power be transferred to local parties?

As the Security Council attempts to manage the demands of such complex operations, a vigorous debate continues as to whether the UN should even be in the business of governing territories in transition. This has inspired various opinions regarding the future of UN transitional administration, including the possible revival of the UN Trusteeship System.

Origins of UNTAET

The willingness of the Security Council to authorise such a far-reaching operation in East Timor arose partly out of necessity. Following the UN-sponsored popular consultation in August 1999 - in which 78.5% of East Timorese voters rejected an autonomy arrangement within Indonesia in favour of independence - pro-Indonesian militias conducted a three-week 'scorched earth' campaign. According to the Department of Peacekeeping Operations (DPKO), this resulted in the destruction of physical infrastructure, economic collapse and the complete withdrawal of Indonesian authorities from the territory, as well as the killing of many East Timorese and the displacement of as much as half the country's population of 890,000. The UN Security Council passed Resolution 1264 (15 September 1999) authorising the deployment of an Australian-led International Force (INTERFET) to defuse the violence, and then Resolution 1272 (25 October 1999) which established UNTAET to fill the administrative vacuum.

The deployment of UNTAET can also be linked to two developments in international security in the post-Cold War era. First, since the mid-1990s, a doctrine has been advanced based on the proposition that state sovereignty can no longer act as a barrier to intervention in the face of violations of human rights and humanitarian norms that threaten international peace and security. British Prime Minister Tony Blair outlined the key aspects of this doctrine in a speech to the Chicago Economic Club in April 1999:

Non-interference has long been considered an important principle of international order. But the principle must be qualified in important respects. Acts of genocide can never be a purely internal matter. When oppression produces massive flows of refugees which unsettle neighbouring countries then they can properly be described as 'threats to international peace and security'.

This doctrine has favoured more intrusive, and sometimes controversial, policies - including NATO's bombing campaign in Yugoslavia in 1999 and the military intervention in East Timor. More tellingly, it has encouraged intervening states to focus on mechanisms that guard against the recurrence of violence and even to orchestrate transitions from conflict to peace. As Tony Blair emphasised, 'in the past we have talked too much of exit strategies, but having made a commitment we cannot simply walk away once the fight is over'.

Second, owing to the UN's greater involvement in internal conflicts, the Security Council has broadened its interpretation of 'threats to international peace and security' to include economic, social, humanitarian and ecological fields. This was clearly manifested in the reorientation of UN peacekeeping from traditional military-orientated undertakings towards complex multidimensional operations which involved the UN in a host of 'peace-building' activities ranging from human rights monitoring and electoral assistance to the delivery of humanitarian aid and the demobilisation of armed forces.

UN Administrations in the 1990s

The sharp end of this peacekeeping evolution has been revealed in a series of transitional administrations. These have varied considerably in terms of their level of political authority - ranging from the 'supervisory' mission in Cambodia (1992-1993) to full-scale 'direct governance' operations in Eastern Slavonia (1996-1998) and Kosovo (1999-). However, the most distinctive feature of all three missions was the involvement of the UN in a range of 'state-building' activities aimed at redeveloping the institutions of government. No previous multidimensional peacekeeping missions have had to undertake such responsibilities as making and enforcing local laws, appointing and removing public officials, creating a central bank, regulating the local media, adjudicating property claims, running schools, and operating public services.

Cambodia (1992-1993)

In October 1991, warring Cambodian parties signed the Paris Peace Agreements - a treaty to end the civil conflict and prepare the country for elections. These Agreements assigned to the UN the expansive role of setting up the UN Transitional Authority in Cambodia (UNTAC). In addition to carrying out traditional peacekeeping tasks, monitoring the cease-fire and organising and conducting free and fair elections, UNTAC assumed responsibility for controlling and supervising the key sectors of Cambodia's administrative structures - foreign affairs, defence, security, finance and communications - and exercised a high degree of civilian authority. However, UNTAC was delegated its power from the Supreme National Council (SNC) - a somewhat token body created under the Paris Agreements with which the sovereign authority and independence of Cambodia rested during the transitional period.

Eastern Slavonia (1996-1998)

The UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) was established by Resolution 1037 (January 15, 1996) with a mandate to reintegrate the regions into the Croatian legal and constitutional system. UNTAES did not perform many of the tasks of civil administration itself, but devolved many of its responsibilities to the local population via the Croatian-led Transitional Council. Nevertheless, the Transitional Administrator enjoyed extensive authority, as a 1995 Report of the Secretary-General indicated: 'he alone would have the executive power and he would not have to obtain the consent of either the Council or the parties for his decisions'.

Kosovo (1999-)

In Kosovo, the UN took on a sweeping role that was unprecedented in its scope and complexity. NATO's eleven-week bombing campaign in 1999 - designed to weaken the Yugoslav forces engaged in the repression of Kosovo Albanians - prompted the complete withdrawal of the Yugoslav authorities from the province and caused an administrative vacuum. In response, the Security Council adopted Resolution 1244 (10 June 1999), establishing the UN Interim Administration in Kosovo (UNMIK). This resolution called upon UNMIK to: perform basic civilian administrative functions; promote the establishment of substantial autonomy and self-government in Kosovo; facilitate a political process to determine Kosovo's future status; coordinate humanitarian and disaster relief of all international agencies; support the reconstruction of key infrastructure; maintain civil law and order; promote human rights; and assure the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo. UNMIK performs a whole spectrum of administrative functions and services, covering such areas as health and education, banking and finance, post and telecommunications, and law and order. In addition, UNMIK has entered into economic agreements with the Former Yugoslav Republic of Macedonia, and organised and conducted province-wide elections in November 2001.

East Timor under UN Administration

East Timor was the most comprehensive transitional administration undertaken by the UN in the 1990s. In Cambodia, the UN assisted the existing government in establishing post-conflict political structures. In Eastern Slavonia and Kosovo, the UN assumed full governing authority but not sovereignty; (in both cases, Croatia and Serbia, respectively, constituted the recognised sovereigns). In East Timor, by contrast, the UN mission was designed precisely to prepare a 'non-self-governing' territory for independence and was therefore the first, and as yet only, instance of a UN operation exercising complete executive and legislative control over a fledgling nation.

Resolution 1272 mandated UNTAET to: provide security and maintain law and order throughout the territory of East Timor; establish an effective administration; assist in the development of civil and social services; ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance; support capacity-building for self-government; and assist in the establishment of conditions for sustainable development. UNTAET consisted of a governance and public administration component, a civilian police component of (up to) 1,640 civilian police and an armed UN peacekeeping force. Humanitarian assistance and rehabilitation components were also incorporated into the structures of the Transitional Administration, and to finance its activities, a donors' meeting on East Timor, convened in Tokyo in December 1999, pledged more than US$520 million.

The UN's efforts in East Timor must be judged an overall success. Under the leadership of the Transitional Administrator, the late Sergio Vieira de Mello, UNTAET fulfilled its primary objective of preparing the territory for independence, achieved on May 19, 2002. By this time, the UN had established a favourable security situation vis-à-vis Indonesia, had returned 180,000 refugees, had improved the economic situation through negotiations with Australia over the oil and gas fields of the Timor Gap, and had established a successor mission (UNMISET) to support East Timor in its initial period of independence.

The Challenge of Transitional Administration

Not surprisingly, the nature of the operation in East Timor presented a range of challenges unique in the UN's peacekeeping history. The perceived success of UNTAET in addressing these tasks provides the backdrop to the ongoing debate concerning the future of UN administration.

(1) 'Benevolent Autocracy' and Local Ownership: The 'Dual Mandate'

Transitional Administration displays a central contradiction between its 'means' and 'ends'. The primary objective of any transitional administration must be to work itself out of a job by empowering the local population. This can be achieved by creating political processes that require local actors to take over responsibility for rebuilding their society and by creating co-operative structures. According to the Report of the International Commission on Intervention and State Sovereignty (2001), these processes are critical to the legitimacy of the intervention:

Intervening to protect human beings must not be tainted by any suspicion that it is a form of neo-colonial imperialism. On the contrary, intervention must be directed towards returning the society in question to those who live in it.

At the same time, however, transitional administrators often employ authoritarian methods to consolidate control over a process and impose particular outcomes. This can raise questions about the legitimacy of an operation, give rise to administrative dependency and, most importantly, facilitate the possibility of local participants drawing inappropriate lessons for future government. The need to strike a balance between carrying out international responsibilities whilst meeting demands for local ownership has can be referred to as the 'dual mandate'.

UNTAET's attempts to fulfil this mandate initially proved problematic. Negotiations with the World Bank concerning the Community Empowerment and Local Governance Project (CEP) exposed UNTAET's predisposition towards centralising power. Designed to enhance local democracy and provide a form of self-determination in the process, UNTAET twice opposed the CEP on the grounds that it entailed a loss of control over how funds could be spent. Efforts to incorporate and involve local personnel were also slow. Although Resolution 1272 stressed the need for UNTAET to 'consult and co-operate closely with the East Timorese people', apart from a few support staff - drivers, security guards and interpreters - UNTAET resisted Timorese participation in order to cement its own control over the country. However, in mid-2000, transitional administrator Sergio Vieira de Mello created the National Consultative Council (NCC) as part of a process of institution-building to increase the direct participation of the East Timorese population. Consisting of four UNTAET members and 11 East Timorese, the NCC oversaw the decision-making process during the transition period leading to independence and was consulted on a series of regulations required to establish effective administration in the Territory.

(2) Structural Uncertainty

With no department in New York to support the development of transitional administrations, UNTAET was framed in the context of a fierce internal conflict at the UN Secretariat. Before the violence of September 1999, the Department of Political Affairs (DPA) controlled decision-making on East Timor and had organised the UN-sponsored referendum on independence. However, the Department of Peacekeeping Operations (DPKO) argued that the deployment of international troops in a peacekeeping capacity necessitated a transfer of authority to its jurisdiction. The ensuing inter-departmental rivalry exposed the rigidity of the UN structure, and the DPKO's subsequent adoption of control meant that the entire operation was staffed and organised by a department with little experience of 'governance missions', limited country knowledge of East Timor, and operating procedures designed for short-term operations. UNTAET's structure was therefore unsuitable for long-term administration responsibilities.

(3) A Lack of Planning Guidance

Linked to the lack of structural support at headquarters was the absence of any planning guidance or established model for transitional administration from which UNTAET could draw lessons. As a result, the mission drew heavily on the institutional and personal knowledge of UNMIK, with planning staff effectively told to take the Kosovo plan and reconfigure it to fit East Timor. While Kosovo provided the most recent and relevant experience of a governance mission undertaken by the UN, its use as a model meant UNTAET proved slow to adapt to the specific conditions on the ground.

(4) Accountability

Transitional administrations derive their legal authority from Security Council resolutions and the UN Charter, and are accountable principally to the UN. Nevertheless, the exercise of full executive and legislative authority necessitates some form of checks and balances to guard against the abuse of power and some expression of answerability to the local population is desirable to demonstrate that the Organisation acts in the interests of the local population. In East Timor, this was provided through the Ombudsperson Office - where decisions of the transitional administration could be challenged - and also the Office of the Inspector General, created principally to verify the use of funds from the World Bank-administered Trust Fund for East Timor (TFET).

(5) Resource Constraints

Running countries - even those on the small scale of East Timor - is a costly affair and resources can often prove inadequate to the task. Although UNTAET secured pledges of more than US$520 million, the mission took place in the context of huge budgetary and logistical constraints and substantial arrears at the UN. As with the Organisation's ability to engage in traditional peacekeeping and peace-building operations, these pressures raise broader questions about the UN's capacity to manage such extensive missions as transitional administration, and suggest that the UN should only undertake them with assurances of the necessary resources from Member States.

The Future of UN Transitional Administration

Although it is uncertain whether the UN will again exercise powers as it did in East Timor, most commentators agree on its high probability. Thus, given the challenges that the UN has faced in the past and the already over-burdened Security Council, it is important to reflect on how the Organisation deals with transitional administration in the future.

The Report of the Panel on United Nations Peace Operations (Brahimi Report, 2000) made no specific recommendations on transitional administration, however it did refer to the choices that face the UN in the future:

The Secretariat faces an unpleasant dilemma: to assume that transitional administration is a transitory responsibility, not prepare for additional missions and do badly if it is once again flung into the breach, or to prepare well and be asked to undertake them more often because it is well prepared.

Option 1: A Retreat from Administration

Jarat Chopra - the former head of UNTAET's Office of District Administration - has argued that just as it was realised in the 1990s that the UN could not cope with the demands of high-intensity military-enforcement operations, the UN is also ill-suited to administering territories in transition. This view implies a retreat from transitional administration by the UN, favouring instead a division of labour whereby the UN limits itself to establishing a mandate and subcontracting civilian and military operations to other, more capable actors.

The UN in Afghanistan

During the military action in Afghanistan in October 2001, there was much discussion of the 'next-big mission' and a dominant role for the UN in rebuilding Afghanistan on the model of Kosovo or East Timor. However, the Security Council authorised an International Security Assistance Force (ISAF) to take control of security around the Afghan capital, Kabul, while the UN undertook a more limited - albeit highly successful - peacemaking role in the Bonn negotiations of November-December 2001 [See Peacemaking Brief].

In addition, the UN Assistance Mission in Afghanistan (UNAMA) - provided for in the Bonn Agreement - followed a different course by making every effort to bolster local Afghan capacity and relying on as limited an international presence as possible. Simon Chersterman of the International Peace Academy explains the reasons behind the design of UNAMA:

Bolstering Afghanistan's capacity to govern itself requires Afghans taking charge, an end that my be compromised by throwing international staff at the problem ... At least some UN staff appear to be taking to heart the philosophy that its main job is to work itself out of a job.

This has come to be referred to as the 'Light Footprint' approach, one that currently dominates the discourse on state-building at the UN, and challenges the increasingly expansive mandates of peace operations in the late 1990s.

Option 2: Strengthening UN Administration

At the other end of the spectrum, proposals have been advanced to enhance the UN's capacity to meet these new challenges. Such suggestions have included: creating a new independent department at the UN Secretariat; developing standard operating procedures based on past experiences; and establishing a roster of civilian specialists available for deployment at short notice.

Applicable Law and Justice Packages

The Brahimi Report's most pointed suggestion referred to rule of law elements. Owing to the difficulty both UNMIK and UNTAET experienced in managing the immediate judicial vacuum upon their arrivals, the Report encouraged the creation of a common UN justice package to which mission personnel can be pre-trained while applicable law questions are being worked out. Although little work has been done within the UN Secretariat in this regard, research institutions have been actively tackling the issue. Building on recent experiences in East Timor, Kosovo, Cambodia, and other post-conflict situations, the Irish Centre for Human Rights (ICHR) and the United States Institute for Peace (USIP) established a project in 2001 entitled Applicable Law in Complex Peacekeeping Situations. The project develops policy guidance on the question of applicable law, and has recently developed a series of draft legal codes for adoption in complex peace operations. These were presented to acting UN High Commissioner for Human Rights, Bertrand Ramcharan, at a Review Conference in Geneva in June 2003. In response, Mr. Ramcharan commented:

Promptly establishing an effective system of justice is essential to securing the peace and ensuring the free exercise of rights. This package, which integrates the lessons of numerous transitions in recent years, makes that goal more readily achievable.

While it is difficult at this stage to comment on this code, some concerns have been raised in relation to its feasibility. A UN Group of Experts - appointed by Kofi Annan and comprising legal and human rights personnel from Headquarters, UNMIK and UNTAET - doubted whether it would be practical, or even desirable, given the diversity of countries' specific legal traditions, for the Secretariat to elaborate a model criminal code. Also, its development implies that in the future the UN is likely to rely on international staff familiar with the code in the immediate phase of deployment. This runs counter to the concern in the past regarding the lack of local participation.

A Revival of the UN Trusteeship System?

In the light of the difficulties associated with Security Council-mandated transitional administration, the idea of resurrecting the UN Trusteeship System has received much attention and debate since the mid-1990s. Chapter XII of the UN Charter established this System to administer colonial territories that had been managed by the League of Nations Mandates System prior to World War II. Article 76 outlines the core objectives of Trusteeship as: the furtherance of international peace and security; the promotion of political, economic, social and educational advancement, respect for human rights; and progressive development towards self-government or independence. These were fulfilled to such an extent that the Trusteeship Council - the System's supervisory body - suspended it operations in 1994 after the last trust territory, Palau, achieved its independence.

Although there are certain clear advantages to reviving this System - for instance, it would enable reconstruction to take place in an orderly way across a range of issues with ongoing support from the international community - several political and legal obstacles render the possibility of the Trusteeship System finding an invigorated role in the near future slight. First, countries sensitive to proposals that threaten the internal affairs of sovereign Member States are always likely to block any revival of the Trusteeship System. Indeed, serious discussions of utilising the System in response to failed states (Cambodia, Somalia and Rwanda) were thwarted by bureaucratic fighting and political objections from, in particular, China and India. Second, the Trusteeship Council is comprised of the Permanent Five (P5) members of the Security Council - China, France, Russia, the United States and the United Kingdom. Other states are unlikely to accept the resurrection of a System that gives rise to allegations of great-power dominance and inspires associations with post-WWI colonialism. Finally, and from a legal perspective, Article 78 of the UN Charter prevents the Trusteeship System being extended to any Member State of the UN and makes explicit reference to Article 2 (1) which asserts 'the sovereign equality of all its members'. The framers of the Charter clearly intended that placing one Member State under the tutelage of the Organisation would violate this principle, and thus a revitalised Trusteeship System would most likely require an amendment to the Charter, a move which currently enjoys little support.

Final Remarks

The outcome of the debate on the future of UN transitional administration is ultimately unpredictable. UNTAET may represent the high-point of UN peace operations, and success in the UN mission in Afghanistan could raise questions about whether such a comprehensive mission was even required in East Timor. What is clear, however, is that Cambodia, Eastern Slavonia, Kosovo and, above all, East Timor are among the most complex peacekeeping operations ever undertaken by the UN and that even if the Organisation is not called upon to exercise such sweeping powers again, learning lessons from past experiences will enable the UN to assist more effectively societies emerging from state failure, civil war, economic collapse and military intervention.

Author: Tim Pippard, Research Assistant, editor: Alex Ramsbotham, Head of Research

This set of briefing papers has been financed by a donation in memory of Joy K B Wynn-Jones and Mary Owen. For a full publication list and more detailed information on the work of the Programme, please contact Alexander Ramsbotham, Head of Research, UN and Conflict Programme, UNA-UK, 3 Whitehall Court, London SW1A 2EL.

Tel: (switchboard) +44 (0)20 7766 3444 (direct line) +44 (0)20 7766 3446 Fax: +44 (0)20 7930 5893 E-mail: aramsbotham@una-uk.org.